On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-10-3400.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Messano and Waugh.
Defendant Raheem Cunningham 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) (count two); and third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three).
At sentencing, pursuant to the State's motion, the judge determined that defendant was eligible for an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3(a) (permitting imposition of an extended term if defendant is a "persistent offender"). The judge found aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a) (3), (6), and (9), and no mitigating factors, N.J.S.A. 2C:44-1(b). After merging counts one and two into count three, the judge sentenced defendant to a nine-year term of imprisonment, with a four-year period of parole ineligibility. Appropriate statutory penalties were also imposed.
Defendant raises the following issues on appeal:
THE COCAINE SHOULD HAVE BEEN SUPPRESSED BECAUSE DEFENDANT WAS STOPPED ILLEGALLY, HIS FLIGHT WAS NOT UNLAWFUL, AND THE SEIZURE WAS NOT SUFFICIENTLY [ATTENUATED] FROM THE TAINT OF THE UNCONSTITUTIONAL STOP TO JUSTIFY ITS ADMISSION.
A. SERGEANT FRETT'S INVESTIGATORY STOP OF DEFENDANT WAS UNCONSTITUTIONAL.
B. DEFENDANT'S FLIGHT FROM THE ILLEGAL STOP WAS NOT OBSTRUCTION BECAUSE THE STOP WAS COMPLETELY ARBITRARY.
C. EVEN IF DEFENDANT'S FLIGHT COULD BE DEEMED OBSTRUCTION, THE EVIDENCE SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS NOT SUFFICIENTLY [ATTENUATED] FROM THE TAINT OF THE UNCONSTITUTIONAL STOP TO JUSTIFY ITS ADMISSION.
THE TRIAL COURT ERRED IN ADMITTING THE COCAINE INTO EVIDENCE BECAUSE THE STATE FAILED TO ESTABLISH AN UNINTERRUPTED CHAIN OF CUSTODY AND THE INTRODUCTION OF THE EVIDENCE VIOLATED THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT.
A. THE STATE FAILED TO ESTABLISH AN UNINTERRUPTED CHAIN OF CUSTODY.
B. THE ADMISSION OF THE COCAINE DESPITE THE STATE'S FAILURE TO PRODUCE THE WITNESSES TO THE CHAIN OF CUSTODY VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.
THE TRIAL COURT'S REFUSAL TO CHARGE THE JURY ON THE LESSER INCLUDED OFFENSE OF FAILING TO DELIVER A CONTROLLED DANGEROUS SUBSTANCE TO THE NEAREST LAW ENFORCEMENT OFFICER CONSTITUTES REVERSIBLE ERROR.
THE TRIAL COURT'S ERROR IN CHARGING THE JURY TWICE ON THE ISSUE OF FLIGHT OVER DEFENDANT'S OBJECTION PREJUDICED ...