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State of New Jersey v. Shiloh Lance Smith

February 10, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SHILOH LANCE SMITH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-02-00284.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 19, 2012

Before Judges Fuentes, Harris, and Koblitz.

Defendant Shiloh Smith was the subject of two indictments filed by a Middlesex County grand jury. In one, Smith was indicted for six crimes stemming from the seizure of a weapon found in plain view in the trunk of an automobile. The other charged Smith with two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).

Based on these indictments, a jury convicted Smith of second-degree unlawful possession of a handgun (a .44 caliber pistol) without first obtaining a permit to carry the same, N.J.S.A. 2C:39-5(b); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2); and one count of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Smith was acquitted of the other charges, except for second-degree unlawful use of a body vest, N.J.S.A. 2C:39-13, which the Law Division -- on Smith's Rule 3:18-1 motion -- dismissed.

Smith was sentenced to an aggregate term of fourteen years in prison, with a minimum term of seven years.*fn1 In imposing its sentence, the court found that aggravating factors (3), (5), (6), and (9)*fn2 substantially outweighed the absence of mitigating factors.

On appeal, Smith presents the following arguments:

POINT I: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. l, PAR. l OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE ALLEGED IN ITS INDICTMENT THAT THE DEFENDANT HAD COMMITTED AN ATTEMPTED MURDER, TOLD THE JURORS THAT THE DEFENDANT HAD COMMITTED AN ATTEMPTED MURDER, AND THEN FAILED TO PRODUCE EVIDENCE AT TRIAL THAT THE DEFENDANT HAD COMMITTED AN ATTEMPTED MURDER, THEREBY UNFAIRLY INFLUENCING THE JURY'S VERDICT ON WEAPON CHARGES AND RESISTING ARREST CHARGES.

POINT II: THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. l, PAR 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE UNLAWFUL POLICE SEARCH AND SEIZURE OF THE DEFENDANTS AND THE CO-DEFENDANT'S VEHICLE.

A. THE SEIZURE OF THE DEFENDANTS AND THE VEHICLE CANNOT BE JUSTIFIED BY REASONABLE SUSPICION BECAUSE NEITHER THE SOURCES' RELIABILITY NOR THEIR BASIS OF KNOWLEDGE HAD BEEN ESTABLISHED.

B. THE SEIZURE OF THE EVIDENCE CANNOT BE JUSTIFIED BY THE PLAIN VIEW DOCTRINE.

C. THE POLICE NEEDED PROBABLE CAUSE AND A WARRANT TO SEARCH THE TRUNK AND TO SEIZE THE WEAPONS.

POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. l, PAR. l OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT (NOT RAISED BELOW).

A. THE PROSECUTOR BREACHED HIS DUTY OF DISCHARGING JUSTICE WHEN HE RELIED ON A WITNESS WHOM THE PROSECUTOR KNEW HAD LIED UNDER OATH ABOUT THE SEIZURE OF GUNS IN A TRUNK TO PROVE THE DEFENDANT POSSESSED THOSE SAME GUNS.

B. THE PROSECUTOR'S RELIANCE ON A WITNESS WHOM THE PROSECUTOR KNEW HAD LIED UNDER OATH ABOUT THE SEIZURE OF GUNS IN A TRUNK TO PROVE THE DEFENDANT POSSESSED THOSE SAME GUNS IVES RISE TO THE APPEARANCE OF IMPROPRIETY.

POINT IV: THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. l, PAR. l0 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION ART. l, PAR. l OF THE NEW JERSEY CONSTITUTION, WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS AND OTHER EVIDENCE FROM AN ABSENTEE WITNESSES (NOT RAISED BELOW).

A. THE POLICE INFORMED JURORS THAT THEY WENT TO THE SCENE BECAUSE THEY WERE INVESTIGATING THE DEFENDANTS FOR DRUG CRIMES AND GANG ACTIVITY.

B. THE FACT THAT THE POLICE WERE INVESTIGATING THE DEFENDANT FOR GANG AND DRUG RELATED ACTIVITY HAD NO PROBATIVE VALUE AND WAS UNDULY PREJUDICIAL.

POINT V: THE TRIAL COURT'S INSTRUCTION TO THE JURY ON THE LAW OF CONSTRUCTIVE POSSESSION WAS ERRONEOUS AND CONTRADICTORY, AMD THE PROSECUTOR REINFORCED AND COMPOUNDED THE ERROR IN HIS COMMENTS TO THE JURORS. (NOT RAISED BELOW).

POINT VI: THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.

POINT VII: THE SENTENCE IS EXCESSIVE.

A. THE IMPOSITION OF A DISCRETIONARY PERSISTENT OFFENDER EXTENDED TERM SHOULD BE VACATED.

B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS AND ERRONEOUSLY IMPOSED A ...


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