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State v. Goldberg

Decided: December 23, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HOWARD J. GOLDBERG, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Union County.

King, Havey and Muir, Jr. The opinion of the court was delivered by Muir, Jr., J.A.D.

Muir

This appeal challenges the denial of defendant's motion to suppress. It follows a negotiated plea wherein defendant pled guilty to possession with intent to distribute three and three-quarter ounces (approximately 106 grams) of cocaine, which included 45 to 55 grams of pure, free base cocaine. N.J.S.A. 24:21-19b(2) prescribes imprisonment up to life for possession of an ounce or more of cocaine which includes 3.5 grams of pure free base of the drug.

Acting within terms of the plea negotiation, which limited defendant's prison exposure to five years imprisonment with two years parole ineligibility, the sentencing judge imposed a four-year sentence with eighteen months parole ineligibility.

Defendant moved before the trial court to suppress the 106 grams of cocaine and 100 grams of marijuana seized pursuant to a search warrant issued by Judge Wolin of the Superior Court.

The judge issued the warrant after taking testimony from James Doherty, an Elizabeth Narcotics detective. Law enforcement officials made the application on an emergent basis.

In his motion to suppress, defendant argued false information contained in the detective's testimony before Judge Wolin and lack of probable cause in the information provided required either suppression of the evidence or a hearing pursuant to

Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), and State v. Howery, 80 N.J. 563 (1979), cert. den. Howery v. N.J., 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979). The State, while conceding the detective misinformed Judge Wolin as to the police having information from two informants rather than one, argued that regardless of the errant information the testimony provided probable cause to support the search warrant.

Judge Beglin, excluding the errant information, concluded the detective's testimony provided sufficient evidence of reliability of the informant and sufficient basis for informant's knowledge to support a finding of probable cause. In doing so, he concluded that whether he applied the standards of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), or the standards of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), the testimony supported a probable cause determination. Thus, he concluded the Franks and Howery issues raised did not have to be resolved.

Defendant, on appeal, essentially reasserts the arguments raised before the trial court, but in greater depth. Since we conclude probable cause existed, exclusive of the allegedly false testimony, we affirm.

Detective Doherty presented the only testimony in support of the emergent application for the search warrant. A police officer for 21 years, with 18 years in narcotics law enforcement, Doherty testified narcotics law enforcement officers received information from two informants. Doherty related the first information came on April 10, 1984, in the form of an anonymous phone call. At that time, the caller stated defendant and a Steven Gapell, both employed at Levitz Furniture Store on Route 1 in Woodbridge, were distributing large quantities of cocaine. The caller ...


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