On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-02-0221.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Petrella, Lintner and Parker.
After a suppression motion by a co-defendant was denied,*fn1 defendant Noel Pagan was found guilty by a jury of third degree distribution of a controlled dangerous substance (CDS) (heroin) on or near school property (N.J.S.A. 2C:35-7) (Count I); third degree distribution of CDS (N.J.S.A. 2C:35-5a(1)) (Count II); and third degree possession of CDS (N.J.S.A. 2C:35-10a(1)) (Count III).*fn2
The trial judge merged the convictions on Counts II and III into Count I and sentenced Pagan to a mandatory extended term of seven years imprisonment, with three years of parole ineligibility. Pagan was also assessed appropriate fines and penalties and ordered to forfeit the money found on his person at the time of his arrest, provide a DNA sample and pay the cost of testing the sample. Also, his driving privileges were suspended for twelve months.
I. Defendant has standing to contest the validity of the search and seizure of evidence from co-defendant Luis Vasquez.
II. The motion judge's denial of defendant's motion to suppress evidence obtained as a result of an illegal search and seizure of evidence on co-defendant Vasquez's person was in error and should be reversed.
III. Defendant should be granted a new trial as defendant was denied the effective assistance of trial counsel.
IV. Defendant's sentence was unconstitutional as it was based upon facts not found by a jury or admitted to by defendant.
V. The trial judge erred in sentencing defendant as the punishment was created for the criminal, rather than the crime.
The facts of this case may be briefly stated. Sergeant Conway, an experienced narcotics officer with the Perth Amboy Police Department was patrolling a known high narcotics area of Perth Amboy on January 7, 2003, at approximately 1:00 p.m. in an unmarked police vehicle. While near the corner of State Street and Dekalb Avenue, he ...