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State v. Elsaid

September 20, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AHMED K. ELSAID, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-12-2247.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 10, 2007

Before Judges Gilroy and Baxter.

Following his arrest on June 23, 2003, defendant was charged under a two-count indictment with third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (Count One), and fourth-degree uttering of a false document, N.J.S.A. 2C:21-4a (Count Two). Defendant was also charged under a complaint-warrant with the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2. On June 1, 2004, defendant appeared at a pre-trial conference, at which time the judge fixed a trial date of September 7, 2004, and provided defendant with a Hudson*fn1 warning that if he failed to appear on that date or any subsequent date, he could lose his bail, the trial could proceed in his absence, and a bench warrant could be issued for his arrest. The Hudson warning was memorialized in a trial memorandum signed by defendant and his attorney.

After defendant failed to appear on the scheduled trial date, a bench warrant was issued for his arrest, and the trial was adjourned to September 20, 2004. Defendant failed to appear on September 20, 2004, and the trial was continued to the following day. On September 21, 2004, defendant again failed to appear, and defense counsel moved for a continuance. The motion was denied. After the trial court denied defendant's motion to suppress evidence, defendant was tried to a jury in absentia and convicted on Count Two, with the jury not reaching a verdict on Count One. Subsequent to the trial, defendant was arrested on the bench warrant. On April 22, 2005, the judge found defendant guilty of the disorderly persons offense and sentenced defendant to an eighteen-month term of imprisonment on Count Two and a concurrent 180-day term of imprisonment on the disorderly persons conviction. Defendant was also ordered to pay certain fines and penalties on the convictions.*fn2 Following sentencing, the State dismissed Count One. Defendant appeals. We affirm the convictions and remand to the Law Division to amend the judgment of conviction.

Because defendant does not contend that the verdicts were against the weight of the evidence, we need only state the core facts to place the appeal in context. We will describe and discuss other facts as necessary in addressing the issues.

Following a complaint from a private citizen of a motor vehicle being operated in a commercial parking lot by someone the citizen suspected was under the influence "of one thing or another," Patrolman Michael Capone of the Hackensack Police Department responded to the scene. Capone observed defendant operating the described motor vehicle in the parking lot. Upon stopping the vehicle, Capone requested defendant to produce his driving credentials. Defendant produced a Puerto Rico driver's license, with the name "Elmer Rivera," containing a photograph of an individual who did not resemble defendant. In searching for additional identification, defendant opened his glove compartment, and Capone noticed a glass pipe used for smoking CDS.

Capone requested defendant to exit the vehicle, placed defendant under arrest, and gave defendant his Miranda*fn3 warnings. After defendant was placed in the custody of a second officer, Capone searched the glove compartment while defendant's wife sat in the front passenger seat. Capone discovered a cigarette box containing a second glass pipe and two bags of heroin. At police headquarters, defendant identified himself to Capone as L. Nino Elsaid, not only providing Capone with a different social security number, but also with a different date of birth than the date on the driver's license originally presented to him. Following a fingerprint check, defendant's true identity was ascertained.

On appeal, defendant argues:

POINT I

UNDER ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS.

POINT II

THE COURT'S DENIAL OF THE DEFENDANT'S MOTION FOR A BENCH WARRANT AND DECISION TO TRY HIM IN ABSENTIA ...


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