On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-02-0156.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
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.
THE POLICE WERE NOT JUSTIFIED IN ENTERING THE APARTMENT ON THE PREMISE THAT THEY WERE IN PURSUIT OF A FLEEING FUGITIVE.
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.
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.
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.
THE SENTENCE IMPOSED WAS EXCESSIVE DUE TO AN IMPROPER WEIGHING OF AGGRAVATING FACTORS. Additionally, in a separately filed pro se supplemental brief, defendant argues:
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.
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).
THE TRIAL COURT ERRED IN ITS JURY CHARGE ON COUNT 5 (OBSTRUCTION OF JUSTICE)
TRIAL JUDGE ERRED IN DENYING DEFENDANT'S REQUEST FOR ACQUITTAL ON COUNT (5) OBSTRUCTION OF JUSTICE, ON SENTENCING.
THE SENTENCE IMPOSED WAS EXCESSIVE AND UN-STATUTORY DUE TO THE DOUBLE-COUNTING ...