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State v. Clark

December 2, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DEREK A. CLARK, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-07-798.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 4, 2009

Before Judges Skillman and Gilroy.

A jury found defendant guilty of certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7(b)(1). The trial court sentenced defendant to a five-year term of imprisonment during which he is ineligible for parole.

The evidence against defendant was obtained in a search of his Trenton home conducted on February 2, 2007, pursuant to a search warrant. The police discovered a locked safe in defendant's bedroom during the course of the search. Defendant gave the police the combination, and they discovered a handgun in the safe. The police also found ammunition for the gun in the safe and other locations in his home.

Defendant testified that four days before the police executed the warrant for the search of his home, a friend of his named Antwan Allison came to his house and told him he needed to put some items in defendant's safe while he went to visit his wife in the hospital. Allison identified the items as "stuff from the [shooting] range." Defendant opened the safe and Allison "put a box inside the safe." Defendant described the box as a blue gun case of the sort used to transport dis- assembled firearms. However, defendant alleged that he did not know the case contained a gun and saw the gun for the first time when it was shown to him by one of the officers who opened his safe during the course of the search. Allison also put other boxes containing ammunition in the safe, but the safe was not large enough to fit all the boxes, so Allison put some ammunition boxes at other locations in defendant's home.

Although Allison said he would pick up the items he had left in defendant's home after visiting his wife in the hospital, he did not return that day or anytime in the next four days before the police executed the warrant. Defendant testified that he tried to reach Allison by telephone during the intervening period, but was unsuccessful.

The only one of the police officers who executed the warrant called as a witness by the State was Detective Armistead Robinson, who was not present when the safe was opened.

Consequently, Robinson did not know whether the gun was contained in a box within the safe or was in open view.

On appeal, defendant presents the following arguments:

POINT I:

[THE TRIAL JUDGE] COMMITTED REVERSIBLE ERROR WHEN HE DENIED DEFENDANT'S APPLICATION TO ADJOURN THE TRIAL ONE DAY TO PRODUCE THE ...


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