On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-12-1735.
The opinion of the court was delivered by: Graves, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Graves, and Alvarez.
A three-count indictment charged defendants Anthony Gioe and Frank Caruso, Jr. with second-degree possession with intent to distribute marijuana in a quantity of more than five pounds but less than twenty-five pounds, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10)(b) (count two), and fourth-degree possession of more than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(3) (count three). In count one, Caruso was charged with second-degree possession of a gravity knife for an unlawful purpose while in the course of committing, attempting to commit, or conspiring to commit a narcotics offense, N.J.S.A. 2C:39-4.1(c).
Following the denial of his motion to suppress, defendant pled guilty to count two, second-degree possession with intent to distribute marijuana. In his plea agreement, defendant reserved the right to appeal the denial of his motion to suppress.*fn2 On September 15, 2006, defendant was sentenced to a five-year state prison term on count two and count three was dismissed. Defendant's sentence was stayed pending the outcome of this appeal.
On appeal, defendant presents the following arguments:
BECAUSE THE WARRANT WAS ISSUED BY A MUNICIPAL COURT JUDGE WITHOUT THE PHYSICAL PRESENCE AND SWORN TESTIMONY OF THE APPLICANT AND BECAUSE THE WARRANT WAS ISSUED ON UNSWORN EVIDENCE INSUFFICIENT TO ESTABLISH PROBABLE CAUSE, THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION TO SUPPRESS.
A. IN REVIEWING A LAW DIVISION DECISION OF A MOTION TO SUPPRESS EVIDENCE, THE APPELLATE DIVISION AFFORDS NO DEFERENCE TO LEGAL CONCLUSIONS MADE BY THE LAW DIVISION.
B. THE WARRANT IS INVALID BECAUSE IT WAS ISSUED BY A MUNICIPAL COURT JUDGE WITHOUT THE PHYSICAL PRESENCE AND SWORN TESTIMONY OF THE APPLICANT.
C. SINCE THE "AFFIDAVIT" CONSIDERED BY THE JUDGE IS NOT, IN ACTUALITY, AN AFFIDAVIT, IT IS INDISPUTABLE THAT THE WARRANT WAS ISSUED ON UNSWORN EVIDENCE ...