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State of New Jersey v. Eugene Gilliard

October 2, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EUGENE GILLIARD, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3661.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2012

Before Judges Parrillo, Sabatino and Fasciale.

Defendant appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), and two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7).*fn1 We affirm the drug-related conviction, reverse the aggravated assault convictions, and remand for re- sentencing.

In September 2008, Officer William Gatling and his partner Officer Dannie Young conducted surveillance for illegal drug activity in a residential neighborhood. As they were parked in an unmarked police car, the officers observed a white Nissan 350Z driven by defendant stopped in the middle of the street approximately four or five houses away from them. Defendant was alone in the Nissan.

Officer Gatling used binoculars, noticed a pedestrian approach the passenger side of the Nissan from the sidewalk, and observed the pedestrian hand defendant money. Defendant then reached into a black plastic bag in the Nissan, pulled out an item, and handed the item to him. Although neither officer was able to identify the object, they concluded that a drug transaction occurred and radioed nearby officers regarding their observations.

The Nissan remained still for thirty seconds to a minute before defendant drove away. Officers Gatling and Young attempted to follow the Nissan by staying far enough behind it to avoid detection. Although they lost sight of the Nissan temporarily, the officers sped up and located it near an intersection. As the officers drove closer to the Nissan, they observed defendant increase his speed from twenty-five miles per hour to approximately fifty-miles per hour, speed through the intersection ignoring a stop sign, and collide with another vehicle, injuring its two female occupants. The impact deployed the airbags in both vehicles.

Officers Gatling and Young arrived at the scene of the accident within five to ten seconds. Officer Gatling attended to the two injured women and Officer Young attempted to aid defendant by assisting him to climb out of the Nissan passenger window. A firefighter extricated the women by removing the doors from the car, and then an ambulance transported them to the hospital.*fn2 Thereafter, Officer Gatling joined Officer Young.

As he assisted defendant in removing himself from the Nissan, Officer Young observed several small packets he believed to be heroin scattered on the floor of the front passenger's side. Officers Gatling and Young then noticed eleven bricks of heroin wrapped in magazine paper on the Nissan's floor. Defendant stated to the officers, "I have drugs in my car." Officer Young arrested defendant and searched his person and the Nissan. He seized a black plastic bag containing sixty-one bricks of heroin from the Nissan and $410 from defendant.

The judge conducted the trial on four days from March 30 to April 6, 2010. The State produced testimony from Officers Gatling and Young, the two injured women, and Reginald Holloway, a forensic narcotics expert. Defendant testified on his own behalf. The jury found defendant guilty of the drug and aggravated assault charges, and the judge imposed an aggregate eight-year prison term.*fn3 This appeal followed. On appeal, defendant raises the following points:

POINT I

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 JURY INSTRUCTION AUTHORIZING THE JURY TO CONVICT THE DEFENDANT FOR AGGRAVATED ASSAULT BASED ON PURPOSELY OR KNOWINGLY CAUSING SIGNIFICANT BODILY INJURY OR ATTEMPTING TO CAUSE SIGNIFICANT BODILY INJURY, EVEN THOUGH THERE WAS NO SUPPORTING EVIDENCE IN THE RECORD AND THE STATE PROCEEDED ON A THEORY OF RECKLESSNESS.

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 FAILURE TO INSTRUCT THE JURY ON THE LAW OF CAUSATION EVEN THOUGH CAUSATION WAS CENTRAL TO THE CASE. (NOT RAISED BELOW).

POINT III

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 STATE'S FAILURE TO SHOW THAT ITS LAY WITNESS HAD FIRST-HAND KNOWLEDGE OF THE FACTS. (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 WHEN THE PROSECUTOR INJECTED HER PERSONAL OPINION INTO THE CASE ABOUT WHICH WITNESSES WERE CREDIBLE IN A CREDIBILITY CASE. (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 TRIAL COURT'S FAILURE TO INSTRUCT JURORS ON THE INTERTWINING ROLE OF THE ...


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