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State v. Bethea

January 14, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DELMAR F. BETHEA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-08-0881-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 16, 2008

Before Judges Winkelstein and Chambers.

On August 11, 2005, a Mercer County Grand Jury indicted defendant, Delmar Bethea, on charges of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(2) (count two); third-degree possession of a CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(2) (count three); second-degree possession of a CDS with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(2) (count four); and third-degree resisting arrest, N.J.S.A. 2C:29-2a (count five).

After the trial judge denied his motion to suppress evidence, defendant pleaded guilty to count three of the indictment, third-degree possession of a CDS with the intent to distribute within 1000 feet of school property. The court dismissed the remaining counts, and sentenced defendant to a five-year prison term, with a thirty-month period of parole ineligibility, concurrent with a sentence defendant was then serving for a parole violation.

On appeal, defendant raises the following two points:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR SUPPRESSION OF EVIDENCE.

POINT II

THE COURT ERRED BY ACCEPTING DEFENDANT'S PLEA AND PLEA BARGAIN WHICH [RESULTED] IN A SENTENCE WHICH WAS EXCESSIVE; IT SHOULD BE REDUCED.

We reject these arguments and affirm defendant's judgment of conviction.

The following evidence was elicited at the suppression hearing. On May 13, 2005, Trenton police detectives Herbert Flowers and Nathaniel Johnson were in an unmarked police car patrolling the area of Sanford Street and Brunswick Avenue, which Flowers knew to be a high narcotics trafficking area. At approximately 7:45 p.m., he saw three individuals, none of whom he had ever seen before, "huddled together" on the side of the street. Flowers described them as "an older black male, gentleman, he looked mere riffraff, you know, he wasn't [a] clean-cut type of person. It was a middle-aged black female. . . She had a rough look to her. And there was a black male there." The latter male was later identified as defendant. Flowers saw the older man reach his hands, palms up, toward the woman, who examined the contents of his hands. Flowers believed he had witnessed a hand-to-hand drug transaction.

As the police vehicle approached the individuals, Flowers heard a voice scream "Five-O," which alerts people of police presence. The older man then clenched his palms and pulled his hands away from the woman. Flowers and Johnson got out of their vehicle. Flowers approached the older man and asked him what he had in his hands. The man responded that he ...


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