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State v. Ellis

December 11, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SAEED T. ELLIS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-07-1611.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 2, 2009

Before Judges Fisher and Espinosa.

In this appeal, we consider whether testimony concerning the police investigation that led to defendant's arrest violated the principles set forth in State v. Bankston, 63 N.J. 263 (1973) and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), and thereby prejudiced defendant's right to a fair trial. We also consider whether the sentence imposed was excessive. Finding no merit in any of these arguments, we affirm.

Defendant was charged with third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (first count); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (second count); and the second-degree offense of being a person not permitted to be in possession of a weapon, N.J.S.A. 2C:39-7(b) (third count). The first and second counts were dismissed prior to trial; at the conclusion of a jury trial, defendant was convicted on the third count.

The State successfully moved for the imposition of an extended term pursuant to N.J.S.A. 2C:44-3(a), and the judge sentenced defendant to an extended fourteen-year prison term, subject to a seven-year period of parole ineligibility.

Defendant has appealed, presenting the following arguments for our consideration:

I. TESTIMONY THAT CLEARLY IMPLIED THAT AN INFORMANT HAD TOLD THE POLICE THAT [DEFENDANT] HAD A GUN IN THE SATURN VIOLATED THE RULE IN BANKSTON AND THE RULE IN CRAWFORD (Not Raised Below).

II. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND MUST BE REDUCED.

In considering the argument raised in Point I, we first note that defendant did not object to the testimony he now claims violated Bankston and Crawford. As a result, to gain a reversal, defendant must demonstrate that these unnoticed claims of error were capable of producing an unjust result. R. 2:10-2.

To place these arguments in context, we recount the events preceding defendant's arrest. The record reveals that on March 21, 2006, Detective Scott Samis, of the Monmouth County Prosecutor's Office, and Lieutenant David DeSane of the Asbury Park Police Department investigated a tip received from a confidential informant (CI) about a handgun belonging to defendant. The CI advised that the gun was kept in a red car, bearing no license plates, parked in the yard of a residence on Elizabeth Avenue in Asbury Park. The CI claimed he knew this because two days earlier he had seen defendant fire the weapon and then place it in the car.

Detective Samis and Lieutenant DeSane arrived at the property and noticed a red Saturn, which lacked a front license plate, in the fenced-in yard. Prior to arriving, they learned there were outstanding municipal warrants for defendant's arrest. As he neared the residence, Detective Samis was approached by defendant's aunt; he advised of the nature of the investigation and was told by defendant's aunt that defendant had just left. Defendant's younger brother soon arrived in an agitated state, demanding to know why the police were present. When he failed to calm down, defendant's brother was handcuffed.

Defendant arrived shortly thereafter. He too was agitated and yelled at the officers, demanding to know why they were present. Defendant was arrested in light of the outstanding warrants. After being placed under arrest, defendant asked whether the officers had searched his vehicle; Detective Samis responded that they had not. Due to the nature of the CI's tip, as well as the fact that other family members were present, ...


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