On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-11-2672.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Payne and Messano.
Defendant, Daniel Gatson, was convicted by a jury on two counts of third-degree receipt of stolen property, N.J.S.A. 2C:20-7. Since one stolen item was a .357 magnum handgun, and defendant had a qualifying felony record, defendant was also charged with a violation of N.J.S.A. 2C:39-7, which declares it to be a second-degree crime for certain persons to possess or control a firearm. Following the return of the jury's verdict on the receipt of stolen property charges defendant, having waived consideration by the jury of the "certain persons" charge, was convicted by the trial judge of this additional crime. He has appealed. Defendant also claims as excessive his extended-term sentence of fifteen years with a fifty-percent parole disqualifier on the certain persons offense, a concurrent five-year term on his conviction for receipt of the stolen gun, and a consecutive five-year term on the other receipt of stolen property charge for which he was convicted, which involved cash.
On appeal, counsel raises the following issues on defendant's behalf:
POINT I DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE LOWER COURT FAILED TO PROVIDE A LIMITING INSTRUCTION REGARDING THE STATUTORY PRESUMPTION AS TO THE RECEIVING STOLEN PROPERTY CHARGES.
POINT II DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED BECAUSE THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND CONSTITUTED A MISCARRIAGE OF JUSTICE UNDER THE LAW.
POINT III DEFENDANT'S SENTENCE WAS EXCESSIVE AND MUST BE VACATED. (Partially Raised Below)
A. The Lower Court Failed To Recognize Appropriate Mitigating Factors. (Partially Raised Below)
B. The Sentence In Part Exceeded The Presumptive Statutory Term And Was Based On The Lower Court's Finding Of Aggravating Factors Other Than A Prior Criminal Conviction. (Not Raised Below)
C. The Lower Court Abused Its Discretion By Imposing An Extended Term Or, In The Alternative, The Extended Term Must Be Vacated And Remanded For Resentencing Pursuant to State v. Pierce. (Partially Raised Below)
D. The Lower Court Abused Its Discretion By Imposing A Consecutive Term.
In a supplemental brief, counsel also argues:
DEFENDANT'S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED, AND THEREFORE HIS CONVICTIONS MUST BE REVERSED, BECAUSE THERE DID NOT EXIST PROBABLE CAUSE TO JUSTIFY ISSUANCE OF THE SEARCH AND WIRETAP WARRANTS; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING SO AS TO DETERMINE WHETHER THE WARRANTS WERE PROCURED BY WAY OF WILFULLY FALSE STATEMENTS OR MADE IN RECKLESS DISREGARD OF THE TRUTH.
Finally, in a pro se brief, defendant argues:
POINT I DEFENDANT'S CONVICTIONS MUST BE REVERSED, BECAUSE THE SUPERIOR COURT JUDGE WHO SIGNED THE WIRETAP WARRANTS LACKED STATUTORY AUTHORITY TO ISSUE THE ORDERS. (Partially Raised Below)
POINT II THE WIRETAP WARRANT AFFIDAVITS FAILED TO SATISFY 18 U.S.C.A. 2518(1)(b) AND 2A:156A-10, BECAUSE IT FAILS TO SET FORTH PROBABLE CAUSE TO BELIEVE THAT PARTICULAR CONVERSATIONS CONCERNING THE TARGET OFFENSES WILL BE INTERCEPTED. (Partially Raised Below)
POINT III FULL AND COMPLETE STATEMENTS AS TO WHETHER OR NOT OTHER INVESTIGATIVE PROCEDURES HAVE BEEN TRIED AND FAILED OR WHY THEY REASONABLY APPEAR TO BE UNLIKELY TO SUCCEED IF TRIED OR TO BE TOO DANGEROUS, AS REQUIRED BY 18 U.S.C.A. 2518(1)(c) AND 2A:156A-9(6). (Not Raised Below)
POINT IV THE WIRETAP APPLICATION FAILED TO COMPLY WITH 18 U.S.C.A. 2518(1)(e) AND 2A:156A-9(e). (Not Raised Below)
POINT V THE AFFIDAVIT OF DET. CHRISTOPHER J. SHEA SUPPORTING THE SEARCH WARRANTS OF THE RESIDENCES OF DANIEL GATSON, ROBIN TREADVANCE, [AND] IVA GATSON, FAILED TO ESTABLISH PROBABLE CAUSE THAT A CRIME WAS COMMITTED BY THE SAID INDIVIDUALS OR THAT A CRIME ...