On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-10-3161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010 - Decided Before Judges Wefing and Payne.
Defendant, Robert Zack, appeals from his conviction by a jury of separate charges of third-degree possession of cocaine and heroin, N.J.S.A. 2C:35-10a(1) (Counts One and Four), second-degree possession of cocaine and heroin with the intent to distribute, N.J.S.A. 2C:35-5b(2) (Counts Two and Five) and second-degree possession of cocaine and heroin within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (Counts Three and Six). The State moved for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f, and its motion was granted. Thereafter, the judge merged Counts One and Two into Three and Counts Four and Five into Six and imposed concurrent sentences of eighteen years in custody with nine years of parole ineligibility. Aggravating factors three (risk of reoffense), six (extent of defendant's prior record) and nine (need for deterrence) were found.
N.J.S.A. 2C:44-1a(3), (6) and (9).
Defendant has appealed. On appeal, he has raised the following issues through counsel:
THE COURT ABUSED ITS DISCRETION WHEN IT DECLINED TO PLAY THE VIDEO OF WHITAKER'S AND POWELL'S TESTIMONY IN RESPONSE TO THE JURY'S REQUEST FOR TRANSCRIPTS OF WHITAKER'S AND POWELL'S TESTIMONY, DEPRIVING DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., Amends. V, VI AND XIV; N.J. CONST. (1947), Art. [I], Pars. 1, 9, 10.
THE COURT ABUSED ITS DISCRETION WHEN IT RULED THAT DEFENDANT COULD NOT TESTIFY ABOUT WHITAKER'S OFFER OF LENIENCY CONDITIONED ON DEFENDANT NOT REPORTING WHITAKER'S USE OF EXCESSIVE FORCE, WHICH DEPRIVED DEFENDANT OF A FAIR OPPORTUNITY TO PRESENT A DEFENSE AND THUS, HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., Amends. V, VI AND XIV; N.J. CONST. (1947), Art. [I], pars 5, 9, 10.
THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO EQUAL PROTECTION OF THE LAW WERE VIOLATED BY THE PROSECUTOR'S USE OF PEREMPTORY CHALLENGES TO STRIKE THREE AFRICAN-AMERICAN JURORS FROM THE PANEL FOR REASONS THAT WERE NOT CREDIBLY RACE-NEUTRAL. U.S. CONST., Amends. V, VI AND XIV; N.J. CONST. (1947), Art. I, pars 5, 9,10.
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF THE INDIVIDUAL ERRORS, AS SET FORTH ABOVE, DO NOT CONSTITUTE REVERSIBLE ERROR, THE ERRORS IN THE AGGREGATE DENIED DEFENDANT A FAIR TRIAL.
THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
Defendant presents the following additional ...