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State v. Gerlach

January 24, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SHAWN E. GERLACH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-12-1576 and 03-12-1582.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 19, 2007

Before Judges Sapp-Peterson and Messano.

Following the denial of his motion to suppress evidence seized during a search conducted by the Old Bridge police department pursuant to a warrant, defendant pled guilty to second degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2), and fourth degree possession of a weapon by certain persons prohibited from possessing same, N.J.S.A. 2C:39-7(a). Thereafter, and prior to sentencing, defendant moved to withdraw his guilty pleas and proceed to trial.

On June 3, 2005, the judge denied defendant's motion and sentenced him to a term of five years imprisonment with a thirty-month period of parole ineligibility on the drug conviction, and a concurrent eighteen-month sentence on the weapons offense. The appropriate financial penalties were also imposed.

On appeal, defendant raises the following points for our consideration:

POINT ONE

THE TRIAL COURT ERRED IN UPHOLDING THE WARRANT-AUTHORIZED SEARCH. U.S. Const. Amend. IV, XIV; N.J. Const. (1947), Art. I, par. 7.

POINT TWO

THE MOTION COURT ERRED IN DENYING DEFENDANT'S APPLICATION TO WITHDRAW HIS PLEA. U.S. Const., Amend. V, VI, XIV; N.J. Const. (1947), Art. 1, Pars. 1, 9, 10.

We have considered these contentions in light of the record and applicable legal standards. We affirm.

The undisputed facts demonstrate that on September 8, 2003, the Old Bridge Township municipal court judge issued a search warrant based upon an affidavit filed by Detective Michael J. Snee of the Old Bridge Township police department. The warrant authorized the search of the premises located at 335 Monroe Avenue, in Old Bridge, described as "a one-story single family residence," along with an "unattached garage to the left of the house." The warrant further authorized the search of defendant who was identified by name and physical description. On the same day the warrant was issued, members of the Old Bridge police department executed a search of the premises and seized cocaine as well as brass knuckles and two switchblade knives.*fn1

Defendant contends the judge erred in "upholding the warrant issued in this matter, or, at the very least, in failing to order an evidentiary hearing as to the assertions contained in the affidavit submitted in support of that warrant." He argues that the affidavit in support of the warrant contained false information regarding the extent of his prior criminal record, and that it otherwise factually failed to establish probable cause. Alternatively, defendant argues that the false statements contained in the affidavit merited an ...


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