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State v. Burstein

October 11, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STUART BURSTEIN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-06-1264.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 18, 2007

Before Judges Skillman and Winkelstein.

Defendant was indicted together with co-defendants Phillip Pauls and Patrick Malone for possession of marijuana, in violation of N.J.S.A. 2C:35-10a(3); possession of marijuana with the intent to distribute, in violation of N.J.S.A. 2C:35-5b(10)(a); second-degree conspiracy to possess marijuana with the intent to distribute, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(10)(a); and being a leader of a narcotics trafficking network, in violation of N.J.S.A. 2C:35-3.

Defendant filed a motion, in which co-defendant Malone joined, to suppress the evidence against him. After a three-day evidentiary hearing, the trial court denied the motion.

Defendant then entered into a plea agreement under which he agreed to plead guilty to second-degree conspiracy to possess marijuana with the intent to distribute, and the State agreed to dismiss the other charges, recommend a five-year term of imprisonment, waive the mandatory period of parole ineligibility applicable to this offense, and not oppose defendant's application for admission into the Intensive Supervision Program.

The trial court sentenced defendant in accordance with the plea agreement to a five-year term of imprisonment without any period of parole ineligibility.

Defendant appeals from the denial of his motion to suppress.

The evidence upon which defendant's conviction rests emanates from a telephone call received by the Neptune Police Department on January 14, 2004 from Detective Joe Cargel of Chula Vista, California. Cargel informed Sergeant Burst of the Neptune Police Department that he had been told by Peggy Pauls, the wife of a burglary suspect, Phillip Pauls, that her husband had been paid $5,000 to drive cross-country in a white van, and that she believed "he may have been involved in illegal activity," specifically the transportation of drugs. Cargel also stated that Mrs. Pauls told him her husband was currently staying in room 202 in the Days Inn motel in Neptune.

Based on this information, Sergeant Burst sent two officers, Patrolman Brock and another officer, to the Days Inn motel to determine whether Pauls was in room 202 and whether there was a white van with California license plates in the parking lot. The officers confirmed by checking with the room clerk that Pauls was registered in room 202 and had indicated on his room card that he was driving a Dodge van with California license plates. The officers then located a van in the parking lot with California plates, although the van was silver rather than white.

After receiving this information, Sergeant Burst instructed Patrolman Brock to go with another officer, Scott Cox, to Pauls' room to speak with him concerning the information received from Detective Cargel. The officers knocked on the door, and when a man fitting Pauls' description opened the door, the officers informed him they were looking for a Phillip Pauls. The man responded that he was Phillip Pauls. The officers told Pauls they had received information "he was involved in possibly transporting a controlled dangerous substance from California to the east coast." Pauls then asked the officers to come into the room and talk to him. Pauls "sat on the bed, . . . kind of sighed a little bit, dropped his head," and asked whether he could smoke a cigarette. The officers responded affirmatively and then administered Miranda warnings.

Pauls agreed to talk to the officers and told them that he was in Neptune "to follow a subject by the name of Woody who would be transporting at least 50 pounds of marijuana to the Pennsylvania border." Pauls also told the officers Woody and another person, who was identified to Pauls as "Stuart Whitman," had been in his room earlier that day in possession of two bags of marijuana. Pauls added that the person called "Woody" was driving a late model red vehicle with California license plates and was also staying at the Days Inn.

Officer Brock then returned to the motel office, where he located a registration card for a Pat Malone that indicated he was driving a red Ford Tempo with California license plates. After locating the red Ford in the motel parking lot, Brock reported this information to his supervisor, who dispatched additional officers to the motel. The officers maintained ...


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