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State v. Smith

March 16, 2009

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



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 06-09-2024-I and 06-09-2187-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 24, 2009

Before Judges Grall and Ashrafi.

Defendant Stanley Smith, a convicted felon with a lengthy criminal history, was arrested twice in one month for selling heroin in the same Atlantic City park. He pleaded guilty pursuant to a plea agreement with the State, and he was sentenced to prison in accordance with the terms of the plea agreement. He now challenges the search of his apartment and the sufficiency of a factual basis in his plea allocution.

We affirm.

I.

Two separate indictments were returned against defendant in September 2006. Indictment 06-09-2187 charged seven counts of drug, illegal weapon, and related offenses occurring on July 6, 2006: (count one) third-degree possession of heroin, in violation of N.J.S.A. 2C:35-10a(1); (count two) third-degree possession of heroin with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and -5b(3); (count three) second-degree possession of heroin with intent to distribute within 500 feet of public property, in violation of N.J.S.A. 2C:35-7.1; (counts four and five) third-degree resisting arrest with physical force, in violation of N.J.S.A. 2C:29-2a(1); (count six) third-degree receiving stolen property, namely a handgun, in violation of N.J.S.A. 2C:20-7; and (count seven) second-degree possession of a weapon by a convicted felon, in violation of N.J.S.A. 2C:39-7.

Indictment 06-09-2024 charged defendant with five counts of drug offenses occurring on August 3, 2006: (count one) third-degree possession of heroin, in violation of N.J.S.A. 2C:35-10a(1); (count two) third-degree possession of heroin with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and -5b(3); (count three) third-degree distribution of heroin, in violation of N.J.S.A. 2C:35-5a(1) and -5b(3); (count four) third-degree distribution of heroin within 1000 feet of school property, in violation of N.J.S.A. 2C:35-7; and (count five) second-degree possession of heroin with intent to distribute within 500 feet of public property, in violation of N.J.S.A. 2C:35-7.1.

Defendant moved to suppress evidence seized by the police at the time of his arrests. The trial court held a suppression hearing on both indictments and denied defendant's motions. Several weeks later, defendant accepted a plea offer from the State and pleaded guilty to three counts: count two of Indictment No. 06-09-2187, third-degree possession of heroin with intent to distribute; count seven of the same indictment, second-degree possession of a handgun by a convicted felon; and count five of Indictment No. 06-09-2024, second-degree possession of heroin with intent to distribute within 500 feet of public property.

Subsequently, defendant was sentenced to eight years in prison with a five-year period of parole ineligibility on the second-degree weapons charge; a concurrent term of five years in prison on the charge of possession of heroin with intent to distribute on July 6, 2006; and another concurrent term of eight years in prison with four years of parole ineligibility on the second-degree charge of possession of heroin with intent to distribute within 500 feet of public property on August 3, 2006.

Defendant makes the following arguments on appeal:

POINT I

BECAUSE THE CONSENT TO SEARCH WAS INVALID, THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE GUN FOUND IN HIS APARTMENT, U.S. CONST. AMENDS, ...


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