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State of New Jersey v. Michael M. Webb A/K/A Derek Roundtree

July 16, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL M. WEBB A/K/A DEREK ROUNDTREE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-04-0290.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 6, 2012

Before Judges Payne and Hayden.

Defendant, Michael Webb, appeals his conviction by a jury for third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a(1), third-degree distribution of CDS, cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), and second-degree distribution of CDS, cocaine, within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. He also appeals his sentence of eight years with a three-year parole disqualifier, imposed on the conviction for the second-degree crime, the remaining counts having been merged into it.

On appeal, defendant presents the following arguments for our consideration:

POINT I THE STATE'S CONTENTION THAT THE DEFENDANT IS GUILTY BECAUSE HE REMAINED SILENT AFTER HIS ARREST VIOLATES THE DEFENDANT'S FIFTH AMENDMENT AND NEW JERSEY COMMON LAW RIGHT TO BE FREE FROM SELF-INCRIMINATION. (Not Raised Below.)

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 AMBIGUOUS AND CONFUSING INSTRUCTIONS ON THE LAW OF DISTRIBUTION OF A CONTROLLED DANGEROUS SUBSTANCE. (Not Raised Below.)

A. THE INSTRUCTION PERMITTED THE JURORS TO FIND THE DEFENDANT GUILTY OF DISTRIBUTION, BUT THERE WAS NO FACTUAL BASIS FOR AN ATTEMPT.

B. THE TRIAL COURT ALLOWED THE JURY TO CONVICT THE DEFENDANT ON THE BASIS OF AN ATTEMPT WITHOUT ANY GUIDANCE ON THE LAW OF ATTEMPT.

C. THE TRIAL COURT FAILED TO MOLD THE LAW TO THE FACTS AND DELETE THE REFERENCE TO ATTEMPTED DISTRIBUTION AFTER A JURY REQUEST FOR CLARIFICATION ON THE LAW OF DISTRIBUTION.

POINT III THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE (DISTRIBUTION OF CDS WITHIN 500 FEET OF A PUBLIC HOUSING PROJECT) BEYOND A REASONABLE DOUBT. (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. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE. (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 IMPROPER ADMISSION OF DUPLICATE EVIDENCE OF A WRITING, RATHER THAN ORIGINAL EVIDENCE AS REQUIRED BY THE LAW. (Not Raised Below.)

POINT VI THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND ...


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