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State v. Ames

July 22, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DWAYNE AMES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-06-0556 and Accusation No. 04-08-0756.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 16, 2008

Before Judges Gilroy and Chambers.

Tried to a jury, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2b (Count One); third-degree receiving stolen property (a motor vehicle), N.J.S.A. 2C:20-7a (Count Two); and third-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10c (Count Three). On May 19, 2006, the trial court sentenced defendant on Count One to an eight-year term of imprisonment, and to a concurrent five-year term of imprisonment on Count Two. Count Three was merged with Count Two. In addition, the court also imposed appropriate fines and penalties and ordered that defendant pay restitution of $2,600 to the owner of the stolen motor vehicle. Lastly, because defendant was on probation from an August 12, 2004 conviction for third-degree unlawful possession of a weapon, the court vacated defendant's prior sentence and resentenced him to an additional four-year term of imprisonment to run consecutive to the sentence imposed on Count One.

On appeal, defendant argues:

POINT I.

THE COURT ERRED IN DENYING THE DEFENSE MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE, BECAUSE THE STATE HAD FAILED TO PRESENT CREDIBLE EVIDENCE, SUFFICIENT TO DEFEAT THE MOTION, THAT DEFENDANT WAS THE DRIVER OF THE STOLEN VAN.

POINT II.

IT WAS ERROR FOR THE COURT TO ADMIT TESTIMONY AS TO DEFENDANT'S DRIVING WITHOUT A LICENSE ON OTHER OCCASIONS, AND ITS PURPORTED "LIMITING" CHARGE AS TO THE ADMISSION OF OTHER-CRIMES EVIDENCE WAS FUNDAMENTALLY FLAWED. (Partially Raised Below).

POINT III.

THE OUT-OF-COURT AND IN-COURT IDENTIFICATIONS OF DEFENDANT BY OFFICER LONG WERE THE RESULT OF AN IMPERMISSIBLY SUGGESTIVE SHOW-UP PROCEDURE, AND HENCE, SHOULD HAVE BEEN EXCLUDED FROM THE TRIAL. (Not Raised Below).

POINT IV.

THE AGGREGATE TWELVE-YEAR SENTENCE IMPOSED ON DEFENDANT ON THESE CHARGES AND ON THE VIOLATION OF PROBATION WAS MANIFESTLY EXCESSIVE UNDER ALL ...


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