On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-09-0811.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2011
Before Judges Fuentes, Graves, and J. N. Harris.
In September 2006, a Gloucester County grand jury returned a six-count indictment charging defendant Mark A. Brown with fourth-degree possession of fifty grams or more of marijuana, N.J.S.A. 2C:35-10(a)(3) (count one); third-degree possession of more than one ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count two); third-degree possession of phencyclidine (PCP), N.J.S.A. 2C:35-10(a)(1) (count three); first-degree possession of more than ten grams of PCP with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(6) (count four); and third-degree hindering apprehension by providing false information to a law enforcement officer, N.J.S.A. 2C:29-3(b) (count five).*fn1 A five-day jury trial in 2009 resulted in defendant's acquittal of first-degree possession of more than ten grams of PCP with intent to distribute. Defendant, however, was convicted of the remaining charges, together with the lesser-included offense in count four of second-degree possession of less than ten grams of PCP with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(7). At sentencing, the trial court granted the State's motion for an enhanced sentence pursuant to N.J.S.A. 2C:43-6(f) and imposed an aggregate term of imprisonment of twelve years with a five-year period of parole ineligibility.
Defendant appeals, raising the following arguments for our consideration:
POINT I: THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.
A. THE DRUGS CONFISCATED FROM THE BACK SEAT OF THE CAR SHOULD BE SUPPRESSED BECAUSE THE STATE FAILED TO MEET ITS BURDEN TO ESTABLISH AN EXCEPTION TO THE WARRANT REQUIREMENTS.
B. DEFENDANT'S PURPORTED CONFESSION SHOULD HAVE BEEN SUPPRESSED AS FRUIT OF THE POISONOUS TREE.
POINT II: THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE DEFENDANT'S MOTION TO DISMISS COUNTS 3 AND 4 OF THE INDICTMENT WHERE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THOSE CHARGES.
POINT III: DEFENDANT IS ENTITLED TO A NEW TRIAL DUE TO PROSECUTORIAL MISCONDUCT DURING THE STATE'S CROSS-EXAMINATION OF THE DEFENDANT, AND TO THE TRIAL COURT'S ABUSE OF DISCRETION BY DENYING THE DEFENDANT'S REQUEST FOR A MISTRIAL AND/OR REQUEST FOR A CURATIVE JURY INSTRUCTION.
POINT IV: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO COMPEL DISCOVERY WHERE THE REQUESTED EVIDENCE WAS RELEVANT, MATERIAL, AND DISCOVERABLE UNDER BRADY.
POINT V: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
A. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE PROSECUTOR'S MOTION FOR AN EXTENDED TERM WHERE DEFENDANT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT THE PROSECUTOR'S REFUSAL TO OFFER A POST-CONVICTION PLEA WAS ARBITRARY AND VINDICTIVE.
B. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO CONSIDER CERTAIN MITIGATING FACTORS.
POINT VI: THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED.
POINT VII: THE ISSUES RAISED IN DEFENDANTS PRO SE BRIEF, IF ANY, SUPPORT HIS REQUEST FOR A REVERSAL OF HIS CONVICTION AND SENTENCE.*fn2
We agree with defendant's first point that the Law Division erred in not suppressing certain evidence found in the backseat of the car in which defendant was a passenger, which led to the improper admission of defendant's statement. The consequences of these errors result in the entire jury verdict being irretrievably tainted. Accordingly, we reverse and remand for a new trial on all charges.