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State v. Carter

October 23, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SHAUN R. CARTER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-09-2869.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: September 30, 2009

Before Judges Collester and Fall.

Defendant, Shaun R. Carter, appeals from his conviction and the sentence imposed. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

Defendant was charged in Camden County Indictment Number 07-09-2869 with third-degree unlawful possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count one); third-degree unlawful possession with cocaine in a quantity less than one-half ounce with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two); fourth-degree hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3b(1) (count three); and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(3) (count four). Tried to a jury, defendant was acquitted of the cocaine possession charge contained in count one, but convicted on the lesser-included disorderly persons offense of wandering in a public place with the purpose of obtaining or selling a controlled dangerous substance, contrary to N.J.S.A. 2C:33-2.1. Defendant was also found guilty of the fourth-degree charge of hindering apprehension or prosecution on count three. The jury acquitted defendant of the charges contained in counts two and four of the Indictment.

The trial judge sentenced defendant to a term of eighteen (18) months imprisonment on his fourth-degree hindering apprehension conviction on count three, and to a concurrent term of six (6) months imprisonment on his disorderly persons conviction on count one. Applicable mandatory penalties and assessments were imposed, defendant was given appropriate jail credits, and he was required to provide a DNA sample.

Subsequent to entry of the judgment of conviction, defendant filed a pro se motion for a change of sentence pursuant to R. 3:21-10, along with the notice of appeal.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE JURY VERDICT RETURNED ON COUNT III AND COUNT I (LESSER INCLUDED) WERE AGAINST THE WEIGHT OF THE SUBSTANTIAL CREDIBLE EVIDENCE ADDUCED AT TRIAL AND SHOULD BE VACATED.

1. The testimony at trial was wholly insufficient to support a finding that Defendant violated N.J.S.A. 2C:29-3b(1) Hindering Apprehension of Prosecution.

2. Defendant's conviction on the Count I lesser included offense of Wandering in violation of N.J.S.A. 2C:33-2.1 was wholly unsupported by the testimony presented at trial and the charge to the jury thereon was "plain error."

POINT II

THE SENTENCE IMPOSED BY THE COURT WAS GROSSLY EXCESSIVE AS A MATTER OF LAW.

The charges against defendant arose from an incident occurring on June 13, 2007 in the City of Camden. The evidence adduced by the State at trial, if credited, disclosed the following. At approximately 9:00 p.m. on June 13th, Camden City police officers responded to the 1770 block of Norris Street, near its intersection with Dayton Street, in response to a complaint by a concerned resident of drug activity in the area. Officer Benjamin Voutier arrived at the scene in a marked patrol vehicle with Officer Gary Towers. Officer Voutier testified he observed a black female, later identified as Vivian Bowers, and a black male, later identified as Kiante Collins, standing alongside a building located at 1782 Norris Street, and saw what he described as a hand-to-hand transaction, with the female handing the male some paper currency, and the male handing her something in return. As the officers exited their patrol vehicle to investigate, Mr. Collins walked in one direction and Ms. Bowers in another. Officer Voutier stopped Ms. Bowers when he saw her trying to conceal something in a can of beer she was holding, at which point Officer Voutier saw two bags of what he described as crack cocaine in Ms. Bowers' hand. When ...


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