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State v. Shepard

July 15, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM SHEPARD, A/K/A WILLIAM BRYANT SHEPHERD, WILLIAM SHEPERD, WILLIAM SHEPHERD, WILLIAM SHEPHARD, WILLIAM B. SHEPHERD, MARCUS B. GREGORY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-02-0156.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 30, 2009

Before Judges Parrillo, Lihotz and Messano.

Defendant William Shepard and co-defendant Marvin Gregory were charged with various drug related and other offenses in Middlesex County Indictment No. 06-02-00156. Specifically, defendant was charged with the third-degree crimes of conspiracy to possess with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), (count one); possession of a CDS (heroin) , N.J.S.A. 2C:35-10a(1) (count six); possession with intent to distribute a CDS (heroin), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count seven); resisting arrest, N.J.S.A. 2C:29-2a(3) (count eight); and the fourth-degree offense of obstructing the administration of law or other government function, N.J.S.A. 2C:29-1 (count nine).

On November 16, 2006, defendant's pre-trial motion to suppress was denied. Following a jury trial, defendant was convicted on counts one, six, seven, and nine and acquitted on count eight.*fn1 Defendant's motion for a new trial was denied and the State's motion for an extended term, pursuant to N.J.S.A. 2C:43-6(f), was granted. After merging counts one and six into count seven, defendant was sentenced to eight years imprisonment, with a four-year period of parole ineligibility, and a consecutive one-year term on count nine.

On appeal defendant presents these arguments for our consideration:

POINT I:

DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED WHERE THE SEARCH WAS CONDUCTED WITHOUT A WARRANT AND NO EXCEPTION TO THE WARRANT REQUIREMENT EXISTED.

POINT I(A):

THE POLICE WERE NOT JUSTIFIED IN ENTERING THE APARTMENT ON THE PREMISE THAT THEY WERE IN PURSUIT OF A FLEEING FUGITIVE.

POINT I(B):

NO EXIGENT CIRCUMSTANCES EXISTED TO JUSTIFY THE WARRANTLESS ENTRY INTO, AND SUBSEQUENT SEARCH OF THE RESIDENCE, AND ANY EXIGENCY THAT MAY HAVE EXISTED WAS "POLICE-CREATED." POINT I(C): NO COMMUNITY CARETAKING EXCEPTION TO THE WARRANT REQUIREMENT EXISTED UNDER THE FACTS OF THIS CASE.

POINT II:

THE COURT ERRED IN PERMITTING LT. SCHUSTER TO TESTIFY AS AN EXPERT WITNESS - THE DEFENDANT WAS NOT PROPERLY PLACED ON NOTICE OF THE INTENT TO CALL LT. SCHUSTER AS AN EXPERT, CAUSING UNFAIR SURPRI[S]E AND UNDUE PREJUDICE TO THE DEFENDANT, RESULTING IN THE DENIAL OF A FAIR TRIAL.

POINT III:

THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE STATE'S EXPERT WAS PERMITTED TO GIVE AN ULTIMATE OPINION REGARDING GUILT OF THE DEFENDANT.

POINT IV:

THE SENTENCE IMPOSED WAS EXCESSIVE DUE TO AN IMPROPER WEIGHING OF AGGRAVATING FACTORS. Additionally, in a separately filed pro se supplemental brief, defendant argues:

POINT ONE:

THE POLICE HAD PROBABLE CAUSE AND AMPLE TIME TO SEEK A SEARCH WARRANT BEFORE ARRIVING AT THE APARTMENT AND AGAIN WHEN THEY SAW DEFENDANT ENTER THE APARTMENT BUILDING.

POINT TWO:

THE TRIAL JUDGE ERRED BY NOT PROPERLY STATING ON [THE] RECORD WHY THERE WERE NO MITIGATING FACTORS PURSUANT TO [N.J.S.A.] 2C:44-1(b) AND BY OVERLOOKING ALL MITIGATING FACTORS B(1) AND B(2).

POINT THREE:

THE TRIAL COURT ERRED IN ITS JURY CHARGE ON COUNT 5 (OBSTRUCTION OF JUSTICE)

POINT FOUR:

TRIAL JUDGE ERRED IN DENYING DEFENDANT'S REQUEST FOR ACQUITTAL ON COUNT (5) OBSTRUCTION OF JUSTICE, ON SENTENCING.

POINT FIVE:

THE SENTENCE IMPOSED WAS EXCESSIVE AND UN-STATUTORY DUE TO THE DOUBLE-COUNTING ...


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