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State v. Johnson

October 11, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN JOHNSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 04-01-0015, 04-05-0877, 04-06-1296.

The opinion of the court was delivered by: Winkelstein, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2007

Before Judges Skillman, Winkelstein and Yannotti.

As a threshold issue in this appeal, we examine the consequences of a sentencing court's failure to notify a defendant of his right to appeal within forty-five days.

On October 14, 2005, defendant pleaded guilty to a violation of probation (VOP) related to a fourth-degree hindering conviction under Indictment No. 04-01-0015, to which he initially pleaded guilty on March 1, 2004; the court imposed an eighteen-month prison term. The judge also vacated two suspended sentences for third-degree possession of controlled dangerous substance (CDS) convictions, under Indictment Nos. 04-05-0877 and 04-06-1296, and imposed concurrent four-year prison terms, consecutive to the VOP.

Defendant had pleaded guilty to the CDS charges on April 21, 2005, after his two suppression motions were denied by the court. The court imposed the suspended sentences at defendant's sentencing hearing on June 17, 2005. After imposing the sentences, the court did not advise defendant of his appeal rights.

On May 10, 2006, defendant filed his notice of appeal. Though his notice of appeal includes an appeal from his VOP, in his brief he limits his arguments to the denial of the two suppression motions. We therefore dismiss the appeal as to Indictment No. 04-01-0015. See In re Freshwater Wetlands Permit, 379 N.J. Super. 331, 334 n.1 (App. Div. 2005) (appeal not briefed is dismissed).

On appeal, defendant raises the following issues, all regarding his suppression motions:

POINT I

BECAUSE BOTH STOPS AND SEIZURES WERE NOT SUPPORTED BY "REASONABLE AND ARTICULABLE" SUSPICIONS OF CRIMINAL ACTIVITY, NO LESS PROBABLE CAUSE, THE MOTIONS TO SUPPRESS EVIDENCE WERE ERRONEOUSLY DENIED. U.S. CONST. AMEND. IV, XIV; N.J. CONST. (1947) ART. 1, PAR. 7.

A. No Probable Cause Existed To Justify What, In Reality, Was An Arrest Of The Defendant In Either Indictment.

B. The Police Had Insufficient Facts To Conduct An Investigatory Stop In Indictment 04-05-0877.

C. The Police Had Insufficient Facts To Conduct An Investigatory Stop In Indictment 04-06-1296.

The State responds that defendant is procedurally barred from challenging the denial of his suppression motions because he did not timely appeal from his suspended sentences, which were imposed on June 17, 2005. Alternatively, the State argues that the suppression motions were correctly denied.

We conclude that the sentencing judge's failure on June 17, 2005, to advise defendant of his appeal rights extended defendant's time to file an appeal. Consequently, even though defendant did not file his appeal of the June 17, 2005 convictions until May 10, 2006, we consider the appeal as timely filed and address his arguments on their merits. In doing so, we affirm the denial of his suppression motion related to Indictment No. 04-05-0877, and we reverse the denial of the suppression motion under Indictment No. 04-06-1296. Accordingly, we vacate defendant's conviction under the latter indictment and remand for further proceedings.

I.

On April 7, 2004 and May 11, 2004, defendant was arrested and charged with drug offenses. Based on the April 7 incident, Indictment No. 04-05-0877 charged him with third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1). For the May 2004 incident, Indictment No. 04-06-1296 charged him with third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (count one); and third-degree possession of a CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two). Defendant moved to suppress the CDS that led to both indictments. Both suppression hearings were held on April 21, 2005. The State presented the following evidence.

Officer Kevin Scanlon of the Atlantic City Police Department, who had been involved in at least fifty drug cases, testified that on April 7, 2004, he was assigned to a plain clothes unit that targeted drugs and prostitution in areas of Atlantic City. As a result of "a lot of complaints about drug activity in the area," at approximately 10:25 p.m. Scanlon and another police officer were conducting surveillance in the area of Georgia and Pacific Avenues. Scanlon observed a man, later identified as defendant, "lingering" in the area. He saw another man approach defendant from the door of a building, either an apartment building or a boarding house. Scanlon saw defendant hand the man currency and in return the man gave defendant a small package. Based on his training and experience, Scanlon concluded that he had just observed a drug transaction. The other officer radioed what Scanlon had observed and defendant's description.

After hearing the radio dispatch, Officers James Barrett and Robert Nawrocki stopped defendant. Barrett had observed a man, later identified as defendant, walking away from Georgia Avenue; the man fit the description given by the dispatch operator. Barrett and Nawrocki approached the man, asked him his name, and where he was coming from. Defendant's "speech appeared muffled, as if he was trying to conceal something in his mouth." That caused the officers to ask him to open his mouth and spit out what was in it; defendant initially refused to do so, but ultimately complied, "spit[ting] out a small Ziploc-style baggie containing a white powdery substance," which Barrett, based on his training and experience, believed to be cocaine. Barrett and Nawrocki testified that when they initially approached defendant, they did not place him under arrest, and he could have walked away. They did not place him in custody until after they saw the bag of cocaine.

The court denied defendant's suppression motion. The judge found that the officers' testimony was credible and concluded that their action in stopping defendant and asking him to spit out what was ...


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