On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-0046-I.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Lisa*fn1 and Grall.
Pursuant to a negotiated plea agreement, defendant Joseph R. Marolda, Sr. pled guilty to maintaining a controlled dangerous substance production facility, a crime of the first degree, N.J.S.A. 2C:35-4. In return for defendant's plea of guilty, the State agreed to dismiss the remaining three counts of the indictment, in which he was charged with possession of more than fifty grams of marijuana, N.J.S.A. 2C:35-10a(3), possession of more than fifty marijuana plants with intent to distribute, N.J.S.A. 2C:35-5b(10)(a), and conspiracy to possess more than fifty marijuana plants with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(10)(a). The State also agreed to leave sentencing to the discretion of the judge, who had stated his intention to impose a fifteen-year term of incarceration, five years to be served without possibility of parole. Although defendant did not condition his plea on the right to appeal, the State agreed to recommend bail pending appeal secured by defendant's residence.
The judge sentenced defendant to a fifteen-year term of incarceration with a five-year period of parole ineligibility and imposed a $3000 DEDR penalty, a $50 lab fee, a $50 VCCB assessment, a $75 SNSF assessment and a $30 LEOTEF penalty. In addition, the judge required defendant to provide a DNA sample and revoked his driving privileges for six months. The judge granted bail pending appeal secured by defendant's residence.
Defendant raises the following issues on appeal:
I. THE MOTION JUDGE ERRED IN FAILING TO SUPPRESS ALL OF THE EVIDENCE DERIVED FROM THE INITIAL UNLAWFUL SEARCHES AS SUCH EVIDENCE IS FRUIT OF THE POISONOUS TREE.
A. The repeated aerial surveillance at 150 to 200 feet above the Marolda property was a violation of defendant's reasonable expectation of privacy under the Fourth Amendment of the United States Constitution and Art. 1 paragraph 7 of the New Jersey Constitution.
B. Exigent circumstances to enter the Marolda property did not exist. Therefore, any evidence obtained from the unlawful search and seizure constitutes fruit from the poisonous tree.
II. DEFENDANT'S STATEMENTS MUST BE EXCLUDED AS THEY WERE IN VIOLATION OF MIRANDA V. ARIZONA, JACKSON V. DENNO, THE FIFTH AMENDMENT, AND NEW JERSEY'S COMMON-LAW RIGHT AGAINST SELF INCRIMINATION.
III. THE MOTION JUDGE ERRED IN FAILING TO DISMISS THE INDICTMENT IN ITS ENTIRETY.
IV. THE INVOLVEMENT OF THE NATIONAL GUARD AND THE UNITED STATES COAST GUARD PRESENT A SITUATION WHERE ARMED FORCES ARE INVOLVED IN A PURELY DOMESTIC CRIMINAL INVESTIGATION IN VIOLATION OF THE ...