On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-09-0968.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2009
Before Judges Fuentes and Chambers.
Defendant Omar Walker appeals from his conviction by a jury of two counts of third degree distributing heroin, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1). He was sentenced to nine years of imprisonment with four and one half years of parole ineligibility on the first count and received a concurrent sentence of five years imprisonment with two and one half years of parole ineligibility on the second count. The court also imposed the mandatory fines and penalties. We affirm.
On appeal defendant raises the following issues:
THE TRIAL COURT'S FAILURE TO PROVIDE THE JURY WITH AN IDENTIFICATION INSTRUCTION DEPRIVED DEFENDANT OF A FAIR TRIAL, AND DEFENSE COUNSEL'S FAILURE TO REQUEST A PRE-TRIAL WADE HEARING AND AN IDENTIFICATION INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 1, 10. (Not Raised Below)
A. The Trial Court Failed to Provide a Jury Instruction on Identification, Despite the Presence of Indicia of Unreliability.
B. Trial Counsel Failed to Request a Pre-Trial Wade hearing and a Jury Instruction On Identification, Thereby Depriving Defendant Of His Constitutional Right Effective Assistance of Counsel.
THE PROSECUTOR COMMITTED MISCONDUCT DURING SUMMATION WHEN SHE BOLSTERED THE STATE'S CRITICAL WITNESS'S TESTIMONY AND APPEALED TO JURORS' EMOTIONS. MOREOVER, THE JUDGE FAILED TO GIVE THE JURY A CURATIVE INSTRUCTION. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, ¶ 10.
THE TRIAL COURT GRANTED THE STATE'S MOTION TO DISMISS THE CHARGE THAT MR. WALKER HAD DISTRIBUTED CDS TO CAROLYN DIXON, BUT FAILED TO INSTRUCT THE JURY NOT TO CONSIDER ANY TESTIMONY RELATING TO HER, DEPRIVING MR. WALKER OF A FAIR TRIAL. U.S. CONST. AMEND ...