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State v. McKenna

Decided: November 4, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MATTHEW MCKENNA, DEFENDANT-APPELLANT



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

Antell and Gruccio. The opinion of the court was delivered by Gruccio, J.A.D.

Gruccio

Defendant Matthew D. McKenna and others were indicted for possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 24:21-19(a)(1), (count one), possession of a controlled dangerous substance, N.J.S.A. 24:21-20(a)(1), (count two), and conspiracy to distribute a controlled dangerous substance, N.J.S.A. 24:21-19(a)(1), N.J.S.A. 2C:5-2 and N.J.S.A. 24:21-24, (count three). Defendant pled not guilty to the indictment and moved to suppress the evidence seized at the time of his arrest. Following the denial of a suppression motion, defendant entered a retraxit plea of guilty to all three counts of the indictment and, as part of a plea arrangement, agreed to testify truthfully against any codefendants. The State agreed to recommend that a custodial sentence of five years with a two and one-half year parole disqualifier be imposed.

At sentencing, the judge merged counts two and three into count one and, in accordance with the plea arrangement, imposed a five year custodial term with a two and one-half year period of parole ineligibility and a $30 Violent Crimes Compensation Board penalty. On appeal defendant contends:

1. The court below erred in not granting the motion to suppress since the warrantless search of the defendant violated the protections guaranteed by the federal and New Jersey constitutions.

2. The sentence imposed by the trial judge is excessive and inappropriate under the mandate of the Code of Criminal Justice.

On May 23, 1986, Somerset County Detective Scott Fabiano arrested Roy Cunningham on charges of possession of methamphetamine with the intent to distribute. Cunningham consulted with his attorney and agreed to cooperate with the police and reveal his suppliers' names. In furtherance of his agreement to cooperate, Cunningham placed a telephone call to one of his suppliers in Philadelphia. Detective Fabiano was present and listened in on the conversation in which a price was discussed and arrangements were made for Cunningham to purchase methamphetamine. Cunningham told the supplier to deliver the drugs to his apartment because his car was inoperative. The supplier agreed and said he would call back with the details of the purchase.

Approximately one hour later, Cunningham received a call indicating the purchase price would be $10,500 rather than the previously quoted $10,000. However, the caller indicated that the price would be negotiable upon delivery. The contact told Cunningham that he was about to leave Philadelphia and would be there in about one hour. At about 3:50 p.m., Cunningham received a call indicating a one-hour delay in the delivery of the drugs. A police surveillance was set up with detectives inside and outside of Cunningham's apartment.

At approximately 4:40 p.m., a gray Lincoln Continental with four occupants pulled up to Cunningham's apartment. One of the passengers fit the description of the individual "with a shaved head" that Cunningham had given the police. Cunningham was able to describe the suppliers because he previously met them. This person, later identified as defendant, alighted from the vehicle and walked up the steps leading to Cunningham's apartment. As defendant reached the door he stopped, turned toward the vehicle and told one of the other passengers to "bring it up." A passenger, later identified as defendant's brother codefendant Brian McKenna, got out of the car and approached the apartment. He had a newspaper under his left arm which had aluminum foil protruding out of the end. Brian

McKenna fit the description of the second suspect that Cunningham had given.

Defendant knocked on Cunningham's door and was arrested by Detectives Andrew Hissim and Scott Fabiano. The gray Lincoln started to pull away as Investigator Richard Myers approached Brian McKenna. McKenna attempted to run away but was apprehended and arrested by the police officers. Investigator Myers seized the package Brian McKenna had been carrying, opened the aluminum foil and discovered a brownish chunky substance suspected to be methamphetamine. In an effort to locate the gray Lincoln, Detective Richard Ike ran out into the ...


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