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State v. Nesmith

November 5, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TYRONE NESMITH, A/K/A KELVIN AUSTIN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 06-06-1110, 05-05-0737 and 04-10-1761.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 27, 2010

Before Judges Reisner and Alvarez.

Tried to a jury, defendant Tyrone Nesmith was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(3) (count three); and third-degree driver license simulation, N.J.S.A. 2C:21-2.1(c) (count four).

Defendant was sentenced on October 11, 2007, on the possession with intent to distribute within 1000 feet of school property to a mandatory extended term based on his status as a second-time drug distributor. N.J.S.A. 2C:43-6(f). Accordingly, after the trial judge considered the N.J.S.A. 2C:44-1 statutory factors, he sentenced defendant on count three to a ten-year term of imprisonment, subject to a five-year parole disqualifier. Counts one and two were merged into count three, the distribution offense. Defendant was also sentenced to five concurrent years of incarceration on the third-degree driver license simulation, count four.*fn1 Appropriate fines and penalties were imposed.

The convictions triggered violations of the probation terms defendant was serving on two other indictments: no. 04-10-1761, a third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1), and third-degree driver license simulation, N.J.S.A. 2C:21-2.1(c); and no. 05-05-0737, third-degree conspiracy, N.J.S.A. 2C:5-2. The trial judge imposed three years of imprisonment on each violation of probation, to be served concurrently to each other, but consecutively to the sentences on indictment no. 06-06-1110.*fn2

Defendant appeals from his conviction and the resulting sentence. We affirm the conviction and the sentence, but remand for the limited purpose of correcting the judgment of conviction consistent with footnotes one and two of this opinion.

The events leading to defendant's arrest began with his operation of a motor vehicle at approximately 4:00 p.m. on April 6, 2006, in Jersey City. Jersey City Police Sergeant Elias Voutsas testified at trial that he observed defendant driving his car at a high rate of speed, "well above the speed limit." Voutsas pursued defendant, who did not stop for approximately seven blocks, finally pulling over within 1000 feet of two schools, one public and one parochial. As Voutsas approached defendant's vehicle, he noted that one of the tail lights was smashed and that there were two other occupants in the car.

Voutsas asked defendant for his driver's license, the vehicle's registration, and his insurance card. While he was waiting, the officer scanned the interior and the passengers for his own safety. Defendant eventually produced a driver's license with the name "Kelvin Austin," but was unable to produce any registration or insurance information. Meanwhile, Voutsas saw a bag containing vials of a white powder, suspected cocaine, beneath defendant's left foot in the "foot well" on the driver's side. When the vials were subsequently tested, twenty-four were found to contain .27 grams of cocaine, and six were found to contain .21 grams of the drug.

Voutsas asked defendant to exit the vehicle and arrested him after back-up officers had arrived at the scene. Voutsas testified that he retrieved the bag from the floor of the car while another officer searched defendant. The passengers, also asked to exit, were frisked, but released.

At trial, Sergeant Wally Wolfe testified as the State's expert witness. He opined that the packaging and quantity of CDS, in addition to the absence of drug paraphernalia in the vehicle, suggested that the materials were intended for distribution and not for personal use.

Defendant's points on appeal are as follows:

POINT I IT WAS ERROR TO DENY DEFENDANT'S MOTION FOR A ...


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