Before Judges Stern, Kestin and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Union County.
Union County Indictment No. 96-3-408 charged defendant Marlon A. Maryland with fourth-degree possession of marijuana in excess of fifty grams, N.J.S.A. 2C:35-10-(a)(3)(count one); third-degree possession of more than one ounce of marijuana with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11)(count two); third-degree possession of marijuana with the intent to distribute within 1,000 feet of property owned by or leased to an elementary or secondary school or school board which is used for school purposes, N.J.S.A. 2C:35-7(count three); and fourth-degree resisting arrest, N.J.S.A. 2C:39-2(a)(count four). After denial of his motion to suppress evidence, defendant entered a plea of guilty to count three. Pursuant to the plea agreement defendant was sentenced to five years imprisonment with thirty months to be served without parole. The appropriate monetary penalties, assessments, and driver's license revocation were also imposed. The remaining counts of the indictment were dismissed. Defendant appeals from the denial of his motion to suppress and the sentence imposed. We affirm.
According to the State's proofs at the suppression hearing, on October 2, 1995, New Jersey Transit Police Officers Paul Marshall and Patrick Clark were assigned to "vandalism and graffiti" duty at the Rahway Train Station. Both officers were dressed as if they were commuters, in plain clothes. According to Marshall, a train stopped on the westbound platform and defendant and two other individuals exited the train. He observed defendant place a brown paper bag into his "waistband area". Marshall felt it was unusual for someone to "stick something into his waist area like that". Marshall and Clark decided to follow them as they walked down the stairwell. Marshall said that when they got to the bottom of the stairwell, he "came around the front of them", identified himself and said he would like to speak with them.
Although he testified that defendant was free to leave, he also said that he instructed defendant that he "wanted to talk to him". He testified that he wanted to speak to defendant because it was unusual for someone to place an object into his waistband area and his suspicions were aroused. He felt defendant was attempting to conceal either a weapon or a controlled dangerous substance. He said he feared for his safety because of the possibility that defendant was attempting to conceal a weapon.
Marshall asked defendant his name and where he was coming from. Defendant told Marshall his name, and said he was coming from Jersey City. Since Marshall knew that trains did not come directly from Jersey City to Rahway, his suspicions were further aroused. At that point, Marshall was speaking to defendant and a juvenile. Clark was speaking to the third individual. Marshall asked, "are you carrying anything you shouldn't be carrying?" According to Marshall, the juvenile put his hands up to indicate he was not carrying anything, and defendant turned his body "as if to turn away ... and at the same time [took] his hand and he takes where the bag was and he tries to push it down into his pants. At that point I immediately reached around and grabbed his hands ... for my own safety". Marshall said that as he observed defendant place the bag "down further into his waistband" Marshall immediately reached "in and I grabbed. As I pulled out, he's pushing me, and at the same time this bag is coming out". Marshall said defendant had shoved him to the ground and the contents of the bag "spilled out". There were several small plastic bags containing what was ultimately identified as marijuana.
The juvenile, K.R., testified on defendant's behalf at the suppression hearing. He said that he and defendant got off the train. He further testified that defendant had a radio in his hands, and did not have "anything in any other hand". When they were approximately five to six feet away from the steps, two individuals "came behind us and just grabbed us and told us to get against the wall. They identified themselves as policemen". He said they complied and the officers "patted" him "down", and went through his pockets. He said he turned his head and observed the officers "patting" defendant "down", conducting "a thorough search, went through his pockets, checked under his arms, went through his belt" and retrieved a brown bag from "below the belt area". He further testified that from the time he and defendant got off the train and the time they were ultimately stopped, he never saw the brown bag.
Defendant also testified at the suppression hearing and admitted having the brown bag inside his pants in the area of his groin. He denied rearranging the bag in his pants after he got off the train. Defendant testified that the officers stopped them and asked where they were coming from. He said that when he responded "Jersey City" the officers threw them against the wall and searched defendant, retrieving the brown paper bag from his pants.
On this appeal, defendant raises the following arguments:
POINT I SUPPRESSION OF THE EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE STATE DID NOT MEET ITS BURDEN OF ESTABLISHING THE VALIDITY OF THE WARRANTLESS SEARCH AND SEIZURE.
POINT II THE COURT FAILED TO APPLY AND WEIGH ALL OF THE RELEVANT SENTENCING FACTORS IN THIS CASE, AND THEREFORE, THE SENTENCE IMPOSED UPON DEFENDANT IS MANIFESTLY EXCESSIVE. ADDITIONALLY, THE MATTER MUST BE REMANDED BECAUSE THE RECORD DOES NOT ESTABLISH THAT DEFENDANT WAS WITHIN 1000 FEET OF PROPERTY USED FOR SCHOOL PURPOSES, NOR DOES THE RECORD ...