April 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WAYNE M. HOLMES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Ind. No. 05-06-1465.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 15, 2008
Before Judges Coburn and Chambers.
Defendant Wayne M. Holmes appeals the denial of his suppression motion, contending that the evidence seized should have been suppressed based on these facts. On March 17, 2005, the police had been conducting a surveillance of the bungalow located at 53C Oak Street, Keansburg, a site of suspected illegal drug activity. They were told by an arrestee that defendant was at that address. Since the police had an outstanding arrest warrant against defendant on unrelated charges, they went to the address to arrest defendant.
When defendant opened the door and saw the police, he fled up the stairs that led to the upstairs apartment. The police apprehended him on the staircase and found crack cocaine in a bottle defendant was holding. The police also heard loud noises and movement from the apartment at the head of the stairs, and they heard the door lock. The police demanded admittance into the apartment, and when the door was opened and they entered, they saw methadone tablets and drug paraphernalia. In addition, one occupant volunteered that two crack pipes were underneath the mattress in the front room, and those pipes were retrieved.
Defendant was charged with third degree possession of a controlled dangerous substance (cocaine), contrary to N.J.S.A. 2C:35-10(a)(1); third degree possession of a controlled dangerous substance (methadone), contrary to N.J.S.A. 2C:35-10(a)(1); third degree possession of a controlled dangerous substance (cocaine) with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(3); and second degree possession of a controlled dangerous substance (cocaine) with intent to distribute while on or within 500 feet of a public housing facility, a public park, or a public building, contrary to N.J.S.A. 2C:35-7.1.
Defendant's motion to suppress the evidence was denied by the trial judge after an evidentiary hearing. Thereafter, pursuant to a plea agreement, defendant pled guilty to second degree possession of a controlled dangerous substance (cocaine) within 500 feet of a public housing facility, a public park or a public building. The balance of the charges were dismissed. On September 29, 2006, defendant was sentenced to five years of imprisonment, along with the mandatory assessments and penalties.
In this appeal, defendant raises the following issues:
POINT I THERE WAS NOT AN AGREEMENT NOT TO APPEAL; THERE SHOULD NOT NOW BE A PENALTY TO THE DEFENDANT IN EXERCISING HIS RIGHT TO APPEAL.
POINT II THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR SUPPRESSION OF EVIDENCE.
We note that the State concedes that defendant has the right to appeal the denial of his suppression motion. Accordingly, we direct our attention to the substance of the appeal. After a careful review of the record and the briefs submitted by the parties, we affirm substantially for the reasons set forth by the trial judge in his oral opinion placed on the record on April 28, 2006.
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