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State of New Jersey v. Stacy D. Brown

June 19, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STACY D. BROWN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 08-04-0207 and 09-05-0400.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2011

Before Judges Graves and J. N. Harris.

On July 2, 2009, defendant Stacy D. Brown pled guilty to third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1) (count one of Indictment No. 09-05-0400). Defendant went to trial on a second indictment charging him with second-degree possession of cocaine with intent to distribute within 500 feet of a public park in violation of N.J.S.A. 2C:35-7.1 (count one of Indictment No. 08-04-0207), and third-degree possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two of the same indictment). On July 24, 2009, a jury convicted him of both offenses. Prior to sentencing, the court granted the State's motion for imposition of a mandatory extended term under N.J.S.A. 2C:43-6(f) because defendant was a repeat drug offender. The court sentenced defendant to ten years imprisonment with five years of parole ineligibility for second-degree possession of cocaine with intent to distribute within 500 feet of a public park, and to a concurrent extended ten-year term with five years of parole ineligibility for third-degree possession of cocaine with intent to distribute. Defendant was also sentenced to a concurrent ten-year term for third-degree possession of cocaine (count one of Indictment No. 09-05-0400). Thus, defendant is serving a ten-year prison term with a five-year period of parole ineligibility.

On appeal, defendant presents the following arguments:

POINT I

THE DEFENDANT'S RIGHT OF CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 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 AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF ACCUSATIONS FROM AN ABSENTEE WITNESS.

A. THE TRIAL COURT FAILED TO GIVE THE JURY AN ESSENTIAL INSTRUCTION LIMITING EVIDENCE FROM A CONFIDENTIAL INFORMANT TO THE ISSUE OF POLICE CREDIBILITY.

B. THE STATE IMPROPERLY RELIED ON PAPERS PREPARED BY THE GOVERNMENT FOR THE PURPOSE OF CRIMINAL PROSECUTION ON THE DRUG ZONE CHARGE, THEREBY DENYING THE DEFENDANT THE RIGHT OF CONFRONTATION.

POINT II

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 PROSECUTOR'S ERRONEOUS THEORY OF LIABILITY, SUPPORTED BY THE TRIAL COURT'S INSTRUCTION, THAT PERMITTED THE JURORS TO CONVICT THE DEFENDANT OF POSSESSION WITH THE INTENT TO DISTRIBUTE CDS BASED ON "SHARING" DRUGS. (Not Raised Below)

A. THE PROSECUTOR ERRONEOUSLY PROCEEDED ON THE THEORY THAT SHARING IS TANTAMOUNT TO AN INTENT TO DISTRIBUTE AND DISTRIBUTION.

B. THE TRIAL COURT ERRED IN ITS INSTRUCTION TO THE JURY ON THE LAW OF INTENT TO DISTRIBUTE CDS.

POINT III

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 WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINION THAT THE DEFENDANT POSSESSED CDS WITH THE INTENT TO DISTRIBUTE. (Not Raised Below)

POINT IV

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 TRIAL COURT'S INSTRUCTION TO THE JURORS DIRECTING THEM TO FIND, CONTRARY TO DEFENDANT'S ARGUMENT, THAT THE EVIDENCE OF A PUBLIC PARK DRUG ZONE WAS "SUFFICIENT."

POINT V

THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED.

POINT VI

THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED.

POINT VII

THE SENTENCE IS ...


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