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a1050-06.opn.html
N.J.S.A. 2C:35-10(a)(1) (count one) and third-degree possession of heroin within intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and 2C:35-5(b)(3) (count two). At sentencing on December 2, 2005, count one was merged into count two.
The court granted the State's motion for imposition of an extended term of imprisonment under N.J.S.A. 2C:43-6(f),
and defendant was sentenced to a seven-year prison term with three and one-half years of parole ineligibility. ">
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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
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(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1050-06T41050-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DWAYNE HARRIS,
Defendant-Appellant.
Submitted April 28, 2009 - Decided
Before Judges Collester and Graves.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No.
04-08-00994.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Carolyn V. Bostic,
Designated Counsel, of counsel and on the
brief).
Theodore J. Romankow, Union County Prosecutor,
attorney for respondent (Jamel K. Semper,
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Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
A jury found defendant Dwayne Harris guilty of third-degree possession of a controlled dangerous substance
(heroin and cocaine), 530 U.S. 428, 431-32, 120 S. Ct. 2326, 2329, 147 L. Ed.2d 405, 412 (2000); State v. O'Neal, 190
N.J. 601, 615-16 (2007); State v. Coburn, 221 N.J. Super. 586, 596-97 (App. Div. 1987).
In his first point, defendant contends that he was unduly prejudiced when the prosecutor, in his closing, referred to
the preliminary police investigation which resulted in the issuance of the search warrant. The State agrees that it
was improper for the prosecutor to mention the preliminary investigation, which was not in evidence. But it
contends the trial court's "swift and direct response to the prosecutor's remarks ensured that defendant's right to a
fair trial was not infringed upon." Immediately after the prosecutor's improper comments, the trial court issued the
following curative instruction:
As I said earlier, you're going to be deciding this case only based upon the evidence in
this case that has been presented to you here at trial. And sometimes in the glow of
advocacy attorneys may try to make an argument in a way that might be construed as
suggesting to you that there was evidence that would be significant for your
consideration but not presented to you here in court. I am sure that that was not the
Prosecutor's intention with the last few words that he spoke to you, but I want to make
sure that you understand that the only evidence that is to be considered as to the
guilty or innocence of Mr. Harris is the evidence that has been presented to you here in
trial. And you are not to speculate as to any fact or non fact that may or may not exist
outside of this courtroom in deciding this matter.
The court then polled the jurors to make sure that they would follow the curative instruction. Under these
circumstances, we are convinced that any possible prejudice was harmless beyond a reasonable doubt. See State v.
Macon, 57 N.J. 325, 338 (1971).
Defendant also claims he was irreparably prejudiced when the prosecutor referred to a "stolen computer" that was
recovered by the police during the search of 941 Flora Street. Although defense counsel did not make a
contemporaneous objection to the prosecutor's statement at the end of summations, defense counsel
subsequently argued that it was unfair for the prosecutor to allege the computer was stolen because "no charges
have been filed." Defense counsel requested an immediate instruction to the jury that their recollection of the facts
should control, and the court instructed the jury as follows:
Okay, ladies and gentlemen, as I said to you earlier, you know, during the course of
their summations counsel referred to a fact and they're referring to their recollection of
the facts to support the argument that they're making to you, but as -- you know,
during the course of their references to these facts they may have described facts
differently than [you] may recall the evidence. And at any time it's always your
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recollection that controls.
Considering the jurors' knowledge of defendant's prior criminal convictions, the fact that defendant was not
charged with possession of stolen property, the court's curative instruction, and the overall strength of the State's
case, we conclude the prosecutor's fleeting reference to a stolen computer was not reversible error pursuant to Rule
2:10-2.
Defendant also challenges his sentence, but he does not dispute that he was subject to a mandatory extended term
as a repeat drug offender under 188 N.J. 137, 151 (2006) ("[W]hen the predicate prior sentences are present,
enhanced sentencing must occur."). In determining defendant's sentence within the extended-term range, the
court noted this was "defendant's seventh indictable conviction, and there have been numerous convictions in the
past for narcotics offenses." Based on aggravating factors 3, 6, and 9, and no mitigating factors, defendant was
sentenced to a seven-year prison term with forty-two months of parole ineligibility. Given the circumstances
present in this case, we conclude that defendant's sentence is not manifestly excessive or unduly punitive, and it
does not constitute an abuse of discretion.
Affirmed.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).
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