State v. Myers

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-04-310, 04-04-313.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: June 24, 2008

Before Judges Cuff and Fuentes.

Following denial of his motion to suppress evidence seized pursuant to a search warrant, defendant Shawn Myers pled guilty to second degree possession of a controlled dangerous substance (CDS) (heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(2); and second degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Defendant was sentenced to an eight-year term of imprisonment with a three-year period of parole ineligibility on the possession of CDS offense and a consecutive term of nine years with a five-year period of parole ineligibility on the certain persons charge. The aggregate term is seventeen years with eight years parole ineligibility. The appropriate fines, fees and penalties were also imposed.

On appeal, defendant raises the following arguments:

POINT I

BECAUSE THE COURT FAILED TO INFORM DEFENDANT WHEN HE ENTERED HIS GUILTY PLEA THAT HE WAS WAIVING HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF HIS CONFESSION, DEFENDANT DID NOT ENTER THE PLEA KNOWINGLY AND VOLUNTARILY. IN ADDITION, THE TRIAL ATTORNEY'S FAILURE TO PURSUE A MOTION FOR A MIRANDA HEARING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE JUDGE ABUSED HIS DISCRETION IN APPLYING A SUBIN SENTENCE TO THE DEFENDANT, WHO HAD A VALID EXCUSE FOR FAILING TO REMAIN IN COURT ON THE RESCHEDULED SENTENCING DATE.

In a pro se supplemental brief, defendant raises the following arguments:

POINT I

THE COURT BELOW ERRED WHEN IT CONDUCTED THE SUPPRESSION HEARING, WITHOUT REQUIRING TESTIMONY FROM DETECTIVE HILONGOS REGARDING HIS AFFIDAVIT FOR THE SEARCH WARRANT, BUT INSTEAD, RELIED ON HEARSAY OF WHETHER THE POLICE KNOCKED FIRST PRIOR TO ENTRY, WHEREFORE, THE MATTER ...