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State v. Chapman

April 1, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EMERY R. CHAPMAN A/K/A EMORY RODDERICK CHAPMAN, DAVID MOREIES, PEADRO MORELES, FACE CHAPMAN, JAHAD MORALES, EMORY CHAPMAN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-01-0042.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 15, 2007

Before Judges Cuff and Simonelli.

Defendant Emery Chapman was indicted for fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(3) (count one); third degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b (counts two and five); third degree receiving stolen property, contrary to N.J.S.A. 2C:20-7 (count three); third degree possession of a controlled dangerous substance (CDS), cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count four); and second degree possession of a weapon by a convicted person, contrary to N.J.S.A. 2C:39-7 (counts six and seven). Defendant also received four summonses for the following motor vehicle violations: driving with a suspended license, contrary to N.J.S.A. 39:3-40; careless driving, contrary to N.J.S.A. 39:4-97; failure to stop at a stop sign, contrary to N.J.S.A. 39:4-144; and operating a motor vehicle with possession of a CDS in a vehicle, contrary to N.J.S.A. 39:4-49.1

The trial judge dismissed count three prior to the trial. A jury convicted defendant on the remaining counts. At sentencing, after granting the State's motion to sentence defendant to a discretionary extended term as a persistent offender, the judge merged counts two and five into counts six and seven, and sentenced defendant to concurrent extended fourteen-year terms of imprisonment on counts six and seven, with a seven-year period of parole ineligibility, and concurrent four-year terms of imprisonment on counts one and four. The judge also imposed the appropriate penalties, fees and assessments, and suspended defendant's driver's license for two years.

On this appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE EVIDENCE WAS OBTAINED AFTER AN ILLEGAL STOP.

A. THE POLICE STOPPED THE SUV BASED ON A HUNCH.

B. THE POLICE DID NOT STOP THE SUV BASED ON ITS FAILURE TO STOP AT A STOP SIGN.

C. THIS CASE IS DISTINGUISHABLE FROM THE "PRETEXT" LINE OF CASES.

POINT II

MR. CHAPMAN'S SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING PURSUANT TO STATE V. PIERCE, 188 N.J. 155 (2006).

POINT III

MR. CHAPMAN'S SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT ILLEGALLY IMPOSED TWO DISCRETIONARY EXTENDED TERMS.

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

A. THE TRIAL COURT IMPERMISSIBLY SENTENCED MR. CHAPMAN TO AN EXTENDED TERM AS A PERSISTENT OFFENDER.

1. The Court Never Qualified Mr. Chapman as a Persistent Offender.

2. The Trial Court Could Not Have Used Mr. Chapman's Prior Convictions as a Basis for Qualifying Him as a Persistent Offender.

B. THE TRIAL COURT IMPERMISSIBLY COUNTED AN ELEMENT OF A CRIME AS AN AGGRAVATING FACTOR TO ...


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