On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-07-1315.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Baxter.
Defendant Kevin W. Riggins appeals from his conviction on a charge of certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7. Notwithstanding defendant's plea of guilty, his right to challenge on appeal the denial of his motion to suppress is preserved by Rule 3:5-7(d).
On appeal, he raises the following claims:
I. THE TRIAL COURT ERRED IN DENYING THE SUPPRESSION MOTION, BECAUSE THE DEFENDANT'S BRIEF RESISTANCE TO AN ILLEGAL ARREST DID NOT DISSIPATE THE TAINT OF THE ONGOING POLICE MISCONDUCT.
II. THE JUDGMENT OF CONVICTION MUST BE AMENDED TO REFLECT THE TWO DAYS OF JAIL CREDIT AWARDED AT THE SENTENCING HEARING.
We disagree with defendant's contention in Point I that the trial judge erred by denying his motion to suppress. We agree with his contention in Point II that the judgment of conviction should be amended to award one additional day of jail credit.
The facts are not disputed, and we quote from Judge Garofolo's memorandum of decision:
On June 25, 2003, Patrolman Scott Handson of the Somers Point Police Department was on patrol operating K55 radar. At approximately 1:00 a.m. - 1:15 a.m. on suspicion that the defendant was speeding, he conducted a motor vehicle stop at the intersection of Route 9 and New York Avenue. After approaching the driver, he noted a strong odor of alcohol and asked whether or not he had been drinking. The driver responded that he had two beers. He was thereupon asked to exit the vehicle to perform roadside sobriety tests. There were four other occupants in the car including the defendant who was seated in the rear seat behind the driver.
Also arriving on the scene was Patrolman Dill. After administration of the roadside sobriety test to the driver, he was placed under arrest for suspected driving while intoxicated. Two other officers arrived at or about that time. It was also determined that the driver's license had been suspended. The driver was taken into custody by Officer Highland. Inasmuch as the vehicle was not registered to the driver, Officer Handson asked if others in the car had a license.
One of the passengers offered a driver's license which was "run" resulting in a finding that there was a warrant for that person's arrest. . . . The person who was subject of the warrant . . . was asked to get out of the vehicle and . . . was placed under arrest. Three people remained in the car at that point. Officer Handson determined that pursuant to the so-called "John's ...