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State v. Holmes

April 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRIAN A. HOLMES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-02-0593.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 24, 2009

Before Judges Gilroy and Chambers.

Defendant Brian A. Holmes was convicted by a jury of third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); second degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count two); third degree possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count three); and conspiracy to possess CDS with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(a)(1) (count four). The trial court sentenced him to seventeen years in prison with an eight year period of parole ineligibility on count two, and counts one and four were merged with count two. On count three, defendant received a concurrent sentence of five years imprisonment. The requisite assessments, fees, and penalties were imposed.

On appeal, defense counsel raises the following issues:

POINT I

THE STATE'S DRUG EXPERT OVERSTEPPED THE BOUNDARIES OF STATE V. ODOM WHEN HE BASED HIS OPINION THAT DEFENDANT HAD DISTRIBUTED NARCOTICS ON POLICE REPORTS, LAB REPORTS AND THE ACTUAL EVIDENCE IN THE CASE. (Not Raised Below).

POINT II

THE JUDGE ERRED IN BARRING DEFENDANT FROM ARGUING THAT THE STATE HAD FAILED TO PRODUCE THE TESTIMONY OF HIS ALLEGED CO-DEFENDANT, FAILING TO CONDUCT AN ANALYSIS PURSUANT TO STATE V. CLAWANS.

POINT III

THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY, AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)

POINT IV

THE 17-YEAR EXTENDED-TERM SENTENCE, WITH AN EIGHT-YEAR PAROLE DISQUALIFIER, IS EXCESSIVE BECAUSE THE NEED TO DETER COULD HAVE BEEN SATISFIED BY A LESSER SENTENCE.

Defendant raises the following issues in his ...


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