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State v. Concepcion

October 17, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CARLOS CONCEPCION, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 05-07-0711.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 10, 2007

Before Judges Graves and Alvarez.

Defendant Carlos Concepcion was convicted by a jury of third-degree possession of cocaine under N.J.S.A. 2C:35-10(a)(1) and sentenced to three years probation, appropriate monetary penalties, and forfeiture of his public employment. In this appeal, defendant challenges the denial of his motion to suppress evidence as well as one of the jury instructions. He also seeks a stay of forfeiture of his public employment pending appeal.

Defendant's brief raises the following points:

POINT I

THE MOTION TO SUPPRESS WAS ERRONEOUSLY DENIED BECAUSE THE POLICE OFFICERS LACKED REASONABLE SUSPICION OF CRIMINAL ACTIVITY SUFFICIENT TO JUSTIFY THE SEIZURE OF APPELLANT'S PERSON AND VEHICLE MAKING THE SEARCH INCIDENT TO THAT SEIZURE UNLAWFUL

POINT II

THE TRIAL JUDGE'S CHARGE REGARDING SENTENCING WAS INFLAMMATORY AND IMPLIED APPELLANT SHOULD BE FOUND GUILTY

POINT III

THE TRIAL JUDGE ABUSED HIS DISCRETION IN NOT STAYING THE ORDER OF FORFEITURE OF PUBLIC EMPLOYMENT PENDING APPEAL

For the reasons that follow, we affirm.

At the suppression hearing, Detective Jason Astbury testified that on March 11, 2005, at approximately 2:17 a.m., he and Detective John Carrigg were on patrol in an unmarked vehicle. As they passed a Shell gas station in a high drug-trafficking area, Astbury saw a car drive towards the rear of the gas station building, park and turn off its lights. The two occupants remained inside. In the three months prior, Astbury had made approximately ten arrests for narcotics and weapons offenses at this location. The officers drove into the well-lit lot. As they pulled alongside the vehicle, Astbury saw defendant, who was the driver, turn around, look at the officer and dip his right shoulder down as if he were putting something on the floor of the car. The officers immediately left their vehicle and Astbury shone his flashlight into the driver's side through the passenger's window. He saw a small ...


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