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State of New Jersey v. Damar Jordan

January 24, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAMAR JORDAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-05-0770.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 30, 2010

Before Judges Carchman, Graves and Messano.

Defendant Damar Jordan appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (Count One); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (Count Two); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); and second-degree possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (Count Four). Defendant raises the following points for our consideration:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL INSTRUCTION ON THE LAW OF INTENT TO DISTRIBUTE CDS. (Not Raised Below)

A. THE TRIAL COURT ERRED IN ITS INSTRUCTION ON THE LAW OF INTENT TO DISTRIBUTE CDS BY INSTRUCTING JURORS THAT "SHARING" CDS CONSTITUTES DISTRIBUTION OF CDS.

B. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON EACH AND EVERY ELEMENT OF THE CRIME OF POSSESSION OF CDS WITH THE INTENT TO DISTRIBUTE.

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CONFESSIONS. (Not Raised Below)

POINT III

THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF EVIDENCE BY ABSENTEE WITNESSES IMPLICATING THE DEFENDANT IN THE CRIME OF POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE WITH INTENT TO DISTRIBUTE WITHIN 500 FEET OF A PUBLIC PARK AND WITH THE INTENT TO DISTRIBUTE WITHIN 1,000 FEET OF A SCHOOL. (Not Raised Below)

POINT IV

THE STATE'S CROSS-EXAMINATION OF THE DEFENDANT REGARDING HIS FAILURE TO MAKE A POST-ARREST REPORT TO THE POLICE, THE PROSECUTOR, AND THE ATTORNEY GENERAL REGARDING THIS INCIDENT VIOLATES THE DEFENDANT'S FIFTH-AMENDMENT AND NEW JERSEY COMMON LAW RIGHT TO BE FREE FROM SELF-INCRIMINATION. (Not Raised Below)

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF IDENTIFICATION G[E]NERALLY AND THE LAW OF THE CROSS RACIAL IDENTIFICATION SPE[C]IFIC[]ALLY, EVEN THOUGH IDENTIFICATION WAS A MATERIAL, CONTESTED ISSUE IN THE CASE. (Not Raised Below)

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF AN INAUDIBLE VIDEOTAPE. (Not Raised Below)

POINT VII

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAD WAIVED HIS MIRANDA RIGHTS VOLUNTARILY AND KNOWINGLY.

POINT VIII

THE SENTENCE IS EXCESSIVE.

A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.

B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND ...


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