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State v. Harris

July 27, 2009

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



On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-08-00994.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 28, 2009

Before Judges Collester and Graves.

A jury found defendant Dwayne Harris guilty of third-degree possession of a controlled dangerous substance (heroin and cocaine), N.J.S.A. 2C:35-10(a)(1) (count one) and third-degree possession of heroin within intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two). At sentencing on December 2, 2005, count one was merged into count two. The court granted the State's motion for imposition of an extended term of imprisonment under N.J.S.A. 2C:43-6(f), and defendant was sentenced to a seven-year prison term with three and one-half years of parole ineligibility.

Defendant presents the following arguments on appeal:

POINT I

DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL ON THE GROUNDS OF PROSECUTORIAL MISCONDUCT BECAUSE THE TRIAL COURT ERRED BY REFUSING DEFENSE REQUESTS FOR A MISTRIAL AND BY DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT AND MOTION TO DISMISS AFTER A VERDICT AND/OR FOR A NEW TRIAL.

A. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S REQUEST FOR A MISTRIAL AFTER THE PROSECUTOR, IN HIS CLOSING, REFERRED TO THE POLICE DEPARTMENT'S PRE-ARREST INVESTIGATION, WHICH WAS NOT IN EVIDENCE. (RAISED BELOW)

B. THE PROSECUTOR PREJUDICED THE DEFENDANT BY MISSTATING TESTIMONY REGARDING THE ALLEGEDLY STOLEN COMPUTER AND POLICE ABUSE. (RAISED BELOW)

C. THE PROSECUTOR PREJUDICED DEFENDANT BY SUGGESTING IN HIS SUMMATION THAT THE DEFENDANT HID DRUGS AND MONEY AT VARIOUS OTHER LOCATIONS WHICH WAS NOT SUPPORTED BY THE EVIDENCE. (RAISED BELOW)

D. EACH INSTANCE OF PROSECUTORIAL MISCONDUCT, CUMULATIVELY, REQUIRES A REVERSAL OF THE CONVICTION AND A NEW TRIAL. (RAISED BELOW)

POINT II

THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BASED ON THE PROSECUTOR'S FAILURE TO SET FORTH THE CHARGES TO BE PROVEN OR THE ELEMENTS OF THE OFFENSES DURING HIS OPENING. (RAISED BELOW)

POINT III

THE TRIAL COURT ERRED BY REFUSING THE DEFENSE'S REQUEST TO CHARGE ACCOMPLICE LIABILITY OR CONSPIRACY TO POSSESS A CDS AND/OR CONSPIRACY TO POSSESS A CDS WITH THE INTENT TO DISTRIBUTE. (RAISED BELOW)

POINT IV

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MIRANDA MOTION TO SUPPRESS HIS ALLEGED STATEMENT TO DET. MCDONOUGH THAT THE COKE AND DOPE ON THE SECOND FLOOR IN THE FRONT ROOM WERE HIS AND, THEREFORE, VIOLATED DEFENDANT'S FIFTH ...


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