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State v. Smith

September 8, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARNELL SMITH, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-05-1042.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 26, 2008

Before Judges Lisa and Simonelli.

A grand jury indicted defendant Darnell Smith for third degree possession of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (count one), and third degree manufacturing, distributing, or dispensing a CDS, contrary to N.J.S.A. 2C:35-5a(1) (count two). After the denial of his motion to suppress physical evidence, defendant pled guilty to count two in exchange for the State's agreement to recommend a five-year term of imprisonment with an eighteen-month period of parole ineligibility, concurrent with any parole or Intensive Supervision Program (ISP) violation.

On July 13, 2007, defendant was sentenced in accordance with the plea agreement. The sentencing judge also imposed the appropriate fines, assessments, fees and penalties, and suspended defendant's driver's license for six months.

On appeal, defendant raises the following contentions:

POINT I:

AS SERGEANT ANDERSON DID NOT HAVE THE REQUISITE REASONABLE SUSPICION THAT DEFENDANT WAS ARMED AND DANGEROUS, THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS EVIDENCE. ALTERNATIVELY, ANDERSON EXCEEDED THE SCOPE OF A PERMISSIBLE PAT-DOWN OF DEFENDANT. BOTH OF THESE ACTIONS VIOLATED DEFENDANT'S FOURTH AMENDMENT RIGHTS.

A. The Officer Did Not Have A Reasonable Basis To Believe That Defendant Was Armed And Dangerous.

B. Sergeant Anderson Exceeded The Scope of A Valid Terry*fn1 Pat-Down.

We reject these contentions and affirm.

The following facts are summarized from the record. The area of New York and Pacific Avenues in Atlantic City is a known high crime area where daily assaults occur, many involving guns and knives. On March 31, 2006, at approximately 5:45 a.m., Officer Wayne Steuber of the Atlantic City Police Department (ACPD) was on patrol when he received a radio transmission to respond to a fight in the area of New York and Pacific Avenues. Steuber and his partner arrived at the scene and observed a male chasing another male, later identified as defendant, with a belt. Steuber stopped the male with the belt and questioned him. The individual told Steuber that the male he was chasing had pulled a knife on him. From approximately half a block away, Steuber observed defendant run east on Pacific Avenue and then enter a taxi cab. He radioed other patrol units in the area to alert them that a black male possibly armed with a knife had entered a taxi cab at New York and Pacific Avenues.

Sergeant Gregory Anderson and other officers, all in uniform, responded to the area. Anderson observed defendant enter a taxi cab. After the cab traveled approximately fifty feet, Anderson stopped it. Concerned for his safety and that of the other officers at the scene, Anderson drew his weapon as he approached the cab. Defendant was in the ...


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