STATE OF NEW JERSEY v. SHAMOD SINGLETON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4897-02T44897-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAMOD SINGLETON,

Defendant-Appellant.

_____________________________________________________________

 

Submitted May 23, 2006 - Decided

Before Judges Coburn and Collester.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, 01-02-0495-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Theresa Kyles, Deputy Public

Defender, and Shara Saget, Assistant Deputy

Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Gary A. Thomas, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant not guilty of two of the offenses for which he was indicted, but guilty of possession of heroin, N.J.S.A. 2C:35-10a(1); possession of heroin with intent to distribute, N.J.S.A. 2C:35-5b(3); possession of heroin with intent to distribute within a public housing facility zone, N.J.S.A. 2C:35-7.1; and terroristic threats, N.J.S.A. 2C:12-3a. Defendant received an aggregate term of imprisonment for seven years.

On appeal, defendant offers the following arguments.

POINT I

THE TRIAL COURT ERRED WHEN IT FAILED TO HOLD A SUPPRESSION HEARING, IN VIOLATION OF R. 3:10-2, AND THE TRIAL ATTORNEY'S FAILURE TO PURSUE A HEARING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below).

POINT II

THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE A CURATIVE INSTRUCTION AFTER SUSTAINING AN OBJECTION TO THE PROSECUTOR'S QUESTION, WHICH ASSUMED THAT THE FEMALE WAS THE "BUYER" IN VIOLATION OF SINGLETON'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, 1.

After carefully considering the record and briefs, we are satisfied that defendant's arguments are without sufficient merit to warrant consideration in a written opinion. R. 2:11-3(e)(2). Nonetheless, we make the following comments.

Since defense counsel filed a motion to suppress but never pursued it, we cannot fault the judge for not holding such a hearing. Although it would appear from the trial testimony that a motion to suppress would probably not have been successful, we will defer ruling on the matter, and leave defendant to post-conviction relief proceedings pursuant to R. 3:22. See State v. Preciose, 129 N.J. 451, 460 (1992) (ineffective-assistance-of- counsel-claims are particularly suited for post-conviction review").

Defendant's second point concerns police testimony about the drug transaction. Officer Lloyd Fredericks testified on direct examination that he saw a "female handing the male [defendant] paper currency, and he in turn handed her an item. I don't know what it was . . . at the time." On redirect cross-examination, Fredericks was asked whether there "was any attempt made to apprehend the black female buying the --." Frederick interrupted the question with a "No," and there was no immediate objection. But a few moments later, defense counsel asked for a mistrial, arguing that his client was severely prejudiced by the assumption in the question that the female was the purchaser. Alternatively, he asked for a "severe instruction."

Although the judge ruled that the question was improper but refused to give relief because it had already been answered and because he perceived no prejudice. We agree. Actually, the question included a fact that the jury could well infer from the evidence, and there was no suggestion of a defense based on the idea that defendant was the purchaser rather than the distributor of drugs. In any case, we are satisfied that this isolated comment could not have affected the outcome of this case given the substantial evidence of defendant's guilt.

Affirmed.

 

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A-4897-02T4

June 16, 2006