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State v. Carswell

August 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARNETT CARSWELL, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1512.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 16, 2010

Before Judges Lihotz and Ashrafi.

Defendant Garnett Carswell appeals from his conviction by a jury on charges arising from the sale of heroin and the extended term sentence imposed by the court. We affirm.

Defendant was arrested and charged with four co-defendants on April 23, 2006, following street surveillance by the Jersey City Police. At about 11:30 a.m. on that date, Detective Amy Hulings and other officers were conducting surveillance for drug transactions in the area of Martin Luther King Drive and Myrtle Avenue. Detective Hulings followed the activities of two women and two men who approached defendant and another man named Jasan Allen standing together at a fence near 180 Myrtle Avenue. From her vantage point directly across the street from the Glenn Cunningham Library on Martin Luther King Drive, Hulings saw three of the individuals hand money to defendant. Allen then took a black box from his jacket pocket and gave small items to each of the three.

After the three individuals left the area, perimeter police units stopped each and recovered small packages of heroin. Defendant and Allen were also apprehended. The black box was recovered from Allen and inside were nineteen bags of heroin. Defendant did not have any drugs on his person but was found to be in possession of $129.

Defendant was indicted on fourteen counts: one count of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); one count of third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); one count of third- degree possession of heroin with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7; one count of second-degree possession of heroin with intent to distribute within 500 feet of a public building, the Glenn Cunningham Library, N.J.S.A. 2C:35-7.1; three counts of third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and b(3); three counts of third-degree distribution of heroin within 1,000 feet of a school, N.J.S.A. 2C:35-7; three counts of second-degree distribution of heroin within 500 feet of a public building, N.J.S.A. 2C:35-7.1; and one count of conspiracy to distribute heroin, N.J.S.A. 2C:5-2. Following trial before a jury, defendant was convicted on ten of the fourteen counts, including two counts of the second-degree offenses because of proximity to the public library.

Defendant filed motions for acquittal on the two second-degree charges and for a new trial as to all counts of conviction. The trial court denied the motions on the date of sentencing. The court granted the State's motion to sentence defendant to a discretionary extended term under N.J.S.A. 2C:44-3 because of his four prior indictable convictions.

After appropriate mergers of counts, defendant was sentenced to thirteen years in prison with six and a half years to be served before parole eligibility on count four of the indictment, charging second-degree possession of heroin with intent to distribute within 500 feet of a public building. Lesser sentences of imprisonment and parole ineligibility on three other counts that were not merged were to run concurrently to the sentence on count four. The court also imposed appropriate money penalties as required by statute.

On appeal, defendant raises the following points:

POINT I

THE ABBREVIATED VOIR DIRE BY THE TRIAL JUDGE DID NOT RESULT IN A FAIR AND IMPARTIAL JURY AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO ...


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