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State v. Archer

August 24, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALMEIN ARCHER, DEFENDANT-APPELLANT.



On appeal from the New Jersey Superior Court, Law Division, Somerset County, Indictment No. 05-07-0624.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 24, 2009

Before Judges Fuentes, Gilroy and Chambers.

Tried to a jury, defendant was found guilty of third-degree conspiracy to distribute and/or possession with intent to distribute a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1) (Count One); and third-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5a(1) and -5b (Count Two). On April 13, 2007, the trial court granted the State's motion seeking to sentence defendant to an extended term, pursuant to N.J.S.A. 2C:43-6f. After finding aggravating sentencing factors N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating factors, the court sentenced defendant on Count Two to a seven-year extended term of imprisonment with a three and one-half year period of parole ineligibility; and to a concurrent four-year term of imprisonment on Count One. The court imposed all appropriate fines and penalties.*fn1

On appeal, defendant argues:

POINT I

THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS FROM ABSENTEE WITNESSES.

POINT II

THE DEFENDANT'S INVOCATION OF HIS [MIRANDA] RIGHTS WAS NOT SCRUPULOUSLY HONORED.

POINT III

THE RIGHT TO BE FREE FROM SELF-INCRIMINATION AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW WAS VIOLATED. (Not raised below).

A. THE POLICE IMPROPERLY INFORMED JURORS THAT THE DEFENDANT REFUSED TO GIVE THEM A TAPED STATEMENT.

B. THE POLICE IMPROPERLY INFORMED THE JURORS THAT THE ALLEGED CO-CONSPIRATOR REFUSED TO GIVE THE POLICE A STATEMENT.

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S RELIANCE ON THE EFFECTS OF DRUGS ON SOCIETY TO PERSUADE THE JURY TO CONVICT THE DEFENDANT.

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER RELIANCE ON A CHARACTER AND DISPOSITION ASSERTION THAT THE DEFENDANT IS A "DRUG DEALER". (Not raised below).

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. [1] OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE CONFUSING, AMBIGUOUS, AND UNINTELLIGIBLE INSTRUCTION OF THE ...


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