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State v. Cullars

Decided: March 29, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK CULLARS, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Essex County.

Dreier and Baime. The opinion of the court was delivered by Baime, J.A.D.

Baime

Following a jury trial, defendant was convicted of possession of marijuana with the intent to distribute (N.J.S.A. 24:21-19a(1)). After the jury's verdict, but prior to sentencing, defendant, pursuant to an agreement with the State, entered retraxit pleas of guilty to first degree robbery (N.J.S.A. 2C:15-1) and possession of phencyclidine with the intent to distribute (N.J.S.A. 24:21-19a(1)). The trial court imposed a custodial term of three years on the marijuana conviction and a consecutive sentence of ten years on the first degree robbery offense. As part of the latter sentence, the trial court ordered that defendant serve a period of 18 months without parole eligibility. On the conviction for possession of phencyclidine with the intent to distribute, defendant received a custodial term of three years to run concurrently with the sentence imposed on the first degree robbery offense. Thus, defendant's aggregate sentence is 13 years, 18 months of which must be served without parole eligibility.

On appeal, defendant asserts that (1) the trial court erred by denying his motion to suppress evidence, (2) the sentences imposed on the convictions for first degree robbery and possession of phencyclidine with the intent to distribute did not comport with the terms of the plea agreement and (3) imposition of consecutive sentences was manifestly excessive and unduly punitive.

I.

We first address defendant's argument that the trial court erroneously denied his pretrial motion to suppress evidence. At the hearing on the motion, the State elicited the following facts. At approximately 10:00 p.m. on January 15, 1983, Sgt. John Bingham of the East Orange Police Department was on patrol in a radio car in the vicinity of Central Avenue when he observed defendant standing by the curb, conversing with an unidentified male on the sidewalk. The officer testified

that he had been informed previously of an outstanding arrest warrant for defendant and had actually seen it several days before. Although Sgt. Bingham was aware that the complaint and warrant charged defendant with first degree robbery, the officer stated that he had no knowledge whatsoever of the underlying facts concerning that incident. Rather, the officer testified that he had merely been apprised of the existence of the warrant by the detective investigating the matter. Based upon his belief as to the existence of the warrant, the officer arrested defendant.

A cursory search for weapons at the scene revealed nothing untoward. Defendant was thereafter transported to police headquarters where a more thorough search disclosed 56 marijuana cigarettes, plastic bags and several manilla envelopes concealed under defendant's waistband. The total amount of the marijuana seized weighed less than 25 grams.

The trial court denied defendant's motion on the strength of this testimony. Although the State never produced the warrant upon which the arrest was predicated, the court determined that this was unnecessary in light of the uncontradicted testimony of the police officer which it found to be entirely credible.

During the pendency of this appeal, the record was supplemented with a copy of the complaint and warrant upon which the police officer allegedly relied in making the arrest. Our examination of the complaint discloses that the charge of first degree robbery emanated from an incident which allegedly occurred on January 5, 1983. However, it is clear from the face of the document that the complaint and warrant were issued on February 21, 1983, approximately five weeks after the arrest of defendant and the seizure of the contraband. At oral argument, the State was unable to explain this discrepancy. While it is possible that Sgt. Bingham had been told of the robbery allegation by another officer and erroneously believed that an arrest warrant had issued, the record is wholly uninformative on this point. It is also possible that the officer had been told

of or had seen an arrest warrant pertaining to a completely unrelated charge which caused ...


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