On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-09-2210.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2007
Before Judges Wefing,*fn1 Parker and C.S. Fisher.
In these cross-appeals, we are presented with two issues involving sentencing under the Brimage*fn2 Guidelines. The first Brimage issue raised by the State is whether the trial court erred by imposing a lower sentence than that negotiated between the State and defendant pursuant to the Brimage Guidelines and N.J.S.A. 2C:35-12, based on the court's belief that the agreement violated defendant's constitutional rights because it imposed a greater sentence for having invoked his right to a suppression hearing. We hold that the trial court erred in imposing the lesser sentence.
The second Brimage issue, raised by defendant in his second point (and responded to by the State in its third point), is whether the Brimage Guidelines, which were promulgated by the Attorney General to address negotiated-sentence agreements under N.J.S.A. 2C:35-12, violate the principles of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), and State v. Natale, 184 N.J. 458 (2005). We hold that the Brimage Guidelines do not violate the recent cases affecting sentencing.
After his motion to suppress was denied, defendant James Thomas pled guilty pursuant to a Brimage plea agreement to one count of third degree possession of a controlled dangerous substance (CDS) in a school zone, N.J.S.A. 2C:35-7. He was sentenced to a term of five years subject to two and a half years parole ineligibility.
The charges against defendant arose out of an incident that occurred on May 12, 2004 at about 10:00 p.m. on Route 36 in Highlands, a four-lane, divided highway with a grass median. Detective Louis Fundora was driving east on Route 36 in an unmarked car. Fundora observed a Mazda stopped in the westbound passing lane. He saw one man standing at the car and two men walking toward the Mazda in the eastbound lanes. By the time Fundora turned around and approached the Mazda in the westbound lane, all three men were in the car and driving away. Fundora stopped the Mazda on the westbound shoulder.
None of the men in the car had any identification. The driver identified himself as Najee Standard, gave an address and date of birth, all of which proved false. The front seat passenger identified himself as Vernon Valentine and produced a car rental agreement in that name. He also produced four traffic summonses, two in the name of Vernon Valentine and two in the name of Tyrone Whitley, but claimed he didn't know Whitley. Valentine was later identified as Whitley.
Defendant, a back seat passenger, gave his correct name but had no identification and persisted in talking on a cell phone during the stop. After learning that the driver had given incorrect identification, that Valentine was in possession of summonses issued to Tyrone Whitley and that defendant had no identification, Fundora asked Valentine to sign a consent to search because the car was rented in his name. Valentine agreed and a substantial amount of cocaine was recovered.
After the suppression hearing, the trial judge found that Fundora's testimony was credible and that he "had ample reason and articulate suspicion for requesting a consent to search."
In its appeal, the State argues:
THE BRIMAGE GUIDELINES MEET CONSTITUTIONAL DUE PROCESS STANDARDS
DETECTIVE FUNDORA WAS JUSTIFIED IN STOPPING THE MAZDA FOR A MOTOR VEHICLE VIOLATION. THEN, AS CIRCUMSTANCES DEVELOPED THROUGH QUESTIONING OF THE OCCUPANTS AND FURTHER OBSERVATIONS, THE DETECTIVE HAD REASONABLE ARTICULABLE SUSPICION TO ASK FOR CONSENT TO SEARCH
A PLEA OFFER FORMULATED PURSUANT TO THE BRIMAGE GUIDELINES COULD NOT IN ANY CONCEIVABLE APPLICATION EXCEED THE "STATUTORY MAXIMUM" FOR SIXTH AMENDMENT PURPOSES