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State v. Ulloa

Superior Court of New Jersey, Appellate Division

October 2, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
HEMENEJID ULLOA, a/k/a HEMIGELD ULLOA, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 18, 2013

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-03-00269.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the briefs).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

Before Judges Simonelli and Haas.

PER CURIAM

Tried before a jury on five counts of a ten-count indictment, defendant Hemenejid Ulloa was convicted of two counts of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (counts one and four); third-degree distribution of CDS (cocaine), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third-degree distribution of CDS (cocaine) within 1, 000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count three); and third-degree possession of CDS (cocaine) with intent to distribute it, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count five).[1] At sentencing, the judge merged the conviction for counts one and two into count three and the conviction for count four with count five. The judge sentenced defendant to 364 days in jail and five years of probation on count three and to a concurrent 364-day term with five years of probation on count five. Appropriate fines and penalties were also imposed.

On appeal, defendant has raised the following contentions:

POINT I
THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTIONS FOR SEVERANCE OF COUNTS MANDATING THE REVERSAL OF [DEFENDANT'S] CONVICTION AND A NEW TRIAL.
POINT II
THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT'S MOTION PURSUANT TO R. 3:18-2 TO SET ASIDE THE VERDICT AND MOTION FOR A NEW TRIAL PURSUANT TO R. 3:20-1.
POINT III
THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S REQUEST FOR A THIRD PARTY GUILT INSTRUCTION TO THE JURY AND BY IMPROPERLY PRECLUDING DEFENDANT FROM INTRODUCING EVIDENCE REGARDING THIRD PARTY GUILT.
POINT IV
THE TRIAL COURT'S FAILURE TO GIVE THE PRIOR INCONSISTENT STATEMENT JURY INSTRUCTION AND THE THIRD PARTY GUILT ...

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