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State v. Nunez


August 2, 2010


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 07-01-0101, S2006-1557-1507.

Per curiam.


Submitted June 22, 2010

Before Judges Fisher and Reisner.

Judge Den Uyl found defendant Eric Nunez guilty of possession of marijuana, N.J.S.A. 2C:35-10a(4), and sentenced him to supervised collection of the fines and penalties in lieu of probation, and a six-month revocation of his driver's license. Defendant now appeals from the April 25, 2008 judgment of conviction and the temporary license revocation. We affirm.


Defendant was initially charged with resisting arrest, an indictable third degree offense, and marijuana possession, a disorderly persons offense. With no objection from defense counsel, the case was tried in a hybrid proceeding, in which a jury decided the charge of resisting arrest, and the judge decided the marijuana charge. The jury acquitted defendant of resisting arrest. The judge convicted him of marijuana possession.

The relevant facts can be summarized briefly. On September 6, 2006, the Toms River police were dispatched to an apartment occupied by defendant and his then girlfriend, to investigate a possible domestic dispute. When they arrived at the apartment, the girlfriend let them in. While the police were interviewing defendant, he told them that his girlfriend had thrown some of his belongings in a pile on the floor. In the pile of objects which defendant told the police were his possessions, the police observed in plain sight a small bag of marijuana. At the trial, defendant also admitted that "[t]he bag of marijuana was mine."

On the first day of the trial, outside the jury's presence, the State's expert testified that he analyzed the substance in the bag and found it to be marijuana. After he testified, the defense discovered that the bag of marijuana the expert brought to the trial was the wrong exhibit, and made a motion to dismiss the marijuana charge. The judge issued a letter opinion dated March 5, 2008, finding no misconduct by the prosecutor and permitting the State to establish the chain of custody and recall the expert to identify the correct exhibit.*fn1

In an oral opinion placed on the record on March 6, 2008, Judge Den Uyl found that the State established the chain of custody; the expert established the identity of the drug; and defendant admitted that the marijuana was his. Accordingly, he found defendant guilty of marijuana possession.


On this appeal, defendant presents the following point of argument for our consideration:

Appellant had no knowledge of the content found during unlawful arrest and argues that his U.S. Constitutional Rights were violated, 4th & 14th Amendment. Appellant also claims that he was physically assaulted by the three arresting officers who falsified their reports in order to convict.

Having reviewed the record, we conclude that all of his appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

Defendant claims that when the police were at his apartment, they assaulted him. However, that argument is irrelevant to this appeal. Defendant further contends that he "had no knowledge of [the] marijuana," and the bag of drugs was seized illegally. However, the trial record establishes that his former girlfriend voluntarily invited the police into the apartment, and at the trial defendant admitted the marijuana was his.

Defendant's argument, that the judge should have downgraded the marijuana charge to the municipal court, was not raised before the trial court. We therefore will not consider that argument for the first time on this appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Contrary to defendant's argument on this appeal, we find no abuse of the trial court's discretion in permitting the State to correct an inadvertent error concerning a trial exhibit.

Finally, defendant argues that the six-month revocation of his driver's license constituted an undue hardship. See State v. Bendix, 396 N.J. Super. 91, 95-96 (App. Div. 2007). The State's brief advises that defendant's driving privileges were restored in October 2008, but even if defendant's sentencing issue is not moot, his arguments are without merit. In light of defendant's prior criminal record, we find no abuse of the trial court's sentencing discretion. See State v. Roth, 95 N.J. 334 (1984).


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