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State v. Plummer

September 8, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GROVER ALLEN PLUMMER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-10-2364.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 31, 2010

Before Judges LeWinn and J. N. Harris.

Defendant was charged in a one-count indictment with third-degree burglary, in violation of N.J.S.A. 2C:18-2. After a twoday jury trial, defendant was convicted as charged. Upon discharging the jury and with defendant's consent, the trial judge conducted a bench trial on a related disorderly persons offense of theft of movable property involving an amount less than $200, in violation of N.J.S.A. 2C:20-2(b)(3); -3(a). Defendant was also convicted of this disorderly persons offense. Ultimately, the court sentenced defendant for both offenses to an aggregate term of four years incarceration, plus the appropriate fees and penalties.

In this appeal, defendant seeks redress for what he describes as due process violations, together with a broad challenge to his sentence. We have carefully reviewed all of defendant's claims and find that they are unpersuasive. Accordingly, we affirm.

I.

On June 11, 2008, defendant was observed in Asbury Park entering an unoccupied delivery truck and removing a compact disc player belonging to the driver of the truck. The witnesses present happened to be two police detectives from the nearby Neptune Township Police Department. After taking defendant into custody, the detectives turned him over to Asbury Park police officers for formal charging, who in turn lodged a single disorderly persons offense against defendant pursuant to N.J.S.A. 2C:33-2 (disorderly conduct).*fn1

Several weeks later, one of the Neptune police detectives became aware of the lone pending disorderly persons charge against defendant. On July 16, 2008, that police detective executed a complaint-warrant against defendant also charging him with burglary and theft.*fn2 On October 16, 2008, a Monmouth County Grand Jury returned the single-count burglary indictment against defendant that resulted in his conviction. The disorderly persons theft charge remained active.

Prior to the commencement of the jury trial, the State moved to dismiss the initial disorderly conduct charge (Docket No. 2008-14961303) and to bar the defense from eliciting any testimony relating to that charge during the trial. In granting the in limine motion, the trial judge recognized that the Asbury Park police officer who prepared the initial charging instrument had not observed the incident in question and would therefore have nothing of evidentiary significance to present to the jury. Essentially, the court held that any evidence concerning an alleged violation of N.J.S.A. 2C:33-2 was not relevant to the burglary or theft charges that still remained pending against defendant.

The defendant has presented the following arguments for our consideration:

POINT I: DEFENDANT WAS DENIED DUE PROCESS BY VIRTUE OF THE STATE'S VINDICTIVE DISMISSAL OF THE ASBURY PARK DISORDERLY PERSONS COMPLAINT IN FAVOR OF AN INDICTMENT BASED ON DETECTIVE HUDSON'S VINDICTIVE INTERVENTION IN THE CHARGING PROCESS.

POINT II: DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE ...


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