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State of New Jersey v. Richard Gillison

January 3, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD GILLISON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-11-1391.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: December 8, 2010 - Decided:

Before Judges Fisher and Fasciale.

Defendant appeals from his convictions for resisting arrest and drug-related offenses. He argues that he was denied a fair trial because (1) he was dressed in his jail clothing, (2) his counsel was ineffective, and (3) the judge failed to grant his request for a mistrial. We disagree and affirm.

On June 5, 2007, Patrolmen James Miyasato and James DiPiazza conducted a property check of a multi-family building located within 1000 feet of a school. Dressed in full police uniforms, they entered a common hallway where Patrolman Miyasato observed defendant conduct what appeared to be a drug transaction. When defendant spotted the officers, he ran up to the second floor and Patrolman Miyasato chased him. Patrolman DiPiazza and Patrolman Terence Duffy, another officer assigned to conduct the property check, followed.

Defendant arrived at co-defendant Danielle Smith's apartment, entered it, and attempted to close the door. Patrolman Miyasato struggled with defendant to keep the door open. When the two other officers arrived at the door, they assisted Patrolman Miyasato, opened the door, and entered the apartment. A pit bull lunged and barked at the officers, Patrolman Miyasato jumped back into the hallway, the other two officers remained in the apartment with defendant, and the door shut. Patrolmen DiPiazza and Duffy drew their revolvers to protect themselves from the dog and defendant ran into a bedroom area and attempted to shove objects under a mattress. Patrolman Duffy fired two shots at the pit bull and killed it because defendant ignored their repeated warnings to remove the dog and their safety was in jeopardy.

Patrolman DiPiazza arrested defendant in the bedroom area. The officers discovered 23 yellow bags of crack cocaine and 189 bags of heroin on top of a bedroom dresser, 39 bags of heroin packaged in the shape of a brick near a mattress, and numerous glassine envelopes containing heroin under the mattress. All the heroin bags had the words "[t]op [s]ecret" stamped on them in red letters. The officers also located $79.

A search warrant was then obtained and the police located plastic baggies in the bedroom dresser, and rubber bands commonly used to bind heroin together, 163 glassine bags of heroin in a kitchen cabinet wrapped in a brick form together with additional rubber bands, and seven loose glassine bags of heroin in the kitchen and above the door of the apartment.

Co-defendant pled guilty and testified for the State. She testified that defendant paid her to use her apartment to sell drugs. Defendant did not testify.

At the conclusion of the trial, defendant was found guilty of third-degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10a(1); second-degree possession of a controlled dangerous substance with intent to distribute (heroin), N.J.S.A. 2C:35-5a(1) and b(2); third-degree possession of a controlled dangerous substance (heroin) with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a; third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1); third-degree possession of a controlled dangerous substance (cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); third-degree possession of a controlled dangerous substance (cocaine) with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2). The judge granted the State's motion for a mandatory extended prison term. He sentenced defendant to an aggregate eleven year and four-months prison term with four and one-half years without parole, and imposed the appropriate fines and penalties.

On appeal, defendant raises the following points:

POINT I

IT WAS PLAIN ERROR TO ALLOW THE ENTIRE TRIAL TO TRANSPIRE WITH DEFENDANT SEATED CLAD IN JAIL CLOTHING, DENYING DEFENDANT HIS ...


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