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State v. Black

July 23, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARRAL V. BLACK, A/K/A KENNY BLACK, KENNETH GONZALES, KENNY GONZALES, DARRAL VAUGHN BLACK, AND DARRAL VAUGH BLACK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 03-03-0364 and 06-07-1044.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 6, 2009

Before Judges Fuentes and Gilroy.

Tried to a jury, defendant was convicted of third-degree conspiracy, N.J.S.A. 2C:5-2 (Count One)*fn1 ; third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (Count Two); and third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:36-5b(3) (Count Three). On July 2, 2007, the trial court sentenced defendant to an extended term pursuant to N.J.S.A. 2C:43-6f of seven years of imprisonment with a three and one-half year period of parole ineligibility. The court merged Counts One and Two with Count Three. On the same day, following defendant's plea of guilty to a charge of violation of probation under a separate indictment, the court sentenced defendant to a concurrent term of five years of imprisonment. The court also imposed all appropriate fines and penalties.

On appeal, defendant argues:

POINT I.

THE ABSENCE OF A LIMITING INSTRUCTION REGARDING THE GUILTY PLEA OF ALLEGED CO-CONSPIRATOR AND ACCOMPLICE BROWN DEPRIVED [DEFENDANT] OF DUE PROCESS OF LAW AND A FAIR TRIAL. [U.S. CONST. amend. XIV; N.J. CONST. art. I, ¶ 1, 9 and 10.] (NOT RAISED BELOW).

POINT II.

THE COURT'S INACCURATE AND CONFUSING CHARGE LESSENED THE STATE'S BURDEN OF PROOF, ACCUSED [DEFENDANT] OF AN UNINDICTED CRIME, AND WAS NOT TAILORED TO THE FACTS OF THIS CASE, DENYING [DEFENDANT] A FAIR TRIAL. [U.S. CONST. amends. V, VI AND XIV; N.J. CONST. art. I, ¶ 1, 9 and 10.] (NOT RAISED BELOW).

A. THE CHARGE IMPROPERLY REDUCED THE STATE'S BURDEN OF PROOF TO A STANDARD LOWER THAN BEYOND A REASONABLE DOUBT, THEREBY VIOLATING [DEFENDANT'S] RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. [U.S. CONST. amends. V, VI AND XIV; N.J. CONST. art. I, ¶ 1, 9 and 10.]

B. THE COURT MISINFORMED THE JURY THAT [DEFENDANT] WAS ACCUSED OF DISTRIBUTION OF A CDS, VIOLATING HIS RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. [U.S. CONST. amends. V, VI AND XIV; N.J. CONST. art. I, ¶ 1, 9 and 10.]

C. THE ACCOMPLICE CHARGE WAS NOT TAILORED TO THE FACTS OF THIS CASE, VIOLATING [DEFENDANT'S] RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. [U.S. CONST. ...


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