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State v. Kellum

May 19, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAKEEM KELLUM A/K/A RAHEEM COLLINS, JEROME BROWN, BRIAN TURNER, AND RAHIM KELLUM, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-03-1075.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 20, 2009

Before Judges Lisa and Reisner.

Defendant, Rakeem Kellum, along with his co-defendant, Sheirron Jones, was indicted for (1) fourth-degree possession of less than one ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1), and (2) third-degree possession of less than one ounce of marijuana with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7.*fn1 Shortly before trial, Jones, pursuant to a plea agreement, pled guilty and received a favorable sentence. It was anticipated that she would testify for the State in defendant's trial, and the State subpoenaed her. However, she invoked her Fifth Amendment right and refused to testify. Defendant went to trial and was found guilty of both counts. After merging count one with count two, Judge Hornstine imposed a mandatory extended term sentence, see N.J.S.A. 2C:43-6f, of ten years imprisonment with a five-year period of parole ineligibility.

On appeal, defendant argues:

POINT I.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS INFRINGED BY THE PROSECUTOR'S VIOLATION OF HER PRIMARY DUTY TO DISCHARGE JUSTICE. (Not Raised Below).

POINT II.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S EXPERT WITNESS ON NARCOTICS TRAFFICKING RENDERED OPINIONS ON FINGERPRINTS THAT WERE BEYOND THE SCOPE OF HIS EXPERTISE. (Not Raised Below).

POINT III.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT JURORS THAT THEY MAY CONSIDER THE ABSENCE OF DRUG TESTING OF ALL THE ALLEGED CONTRABAND WHEN DECIDING WHETHER THE STATE MET ITS BURDEN OF PROOF.

POINT IV.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT PERMITTED THE STATE'S EXPERT WITNESS ...


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