On appeal from Superior Court of New Jersey, Law Division, Cape May County, No. 05-04-0251-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2009
Before Judges Wefing, Yannotti and LeWinn.
Tried to a jury, defendant was convicted of distribution of a controlled dangerous substance ("CDS") within one thousand feet of school property, N.J.S.A. 2C:35-7; possession of CDS within five hundred feet of a public facility, N.J.S.A. 2C:35- 7.1; hindering his own prosecution, N.J.S.A. 2C:29-3(b)(1); and possession of CDS, N.J.S.A. 2C:35-10. At sentencing, the trial court granted the prosecution's motion to sentence defendant to an extended term under N.J.S.A. 2C:43-6(f). It imposed an aggregate sentence of fifteen years, with a seven-and-one-half-year period of parole ineligibility. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
At approximately 9:30 p.m. on March 18, 2005, members of the Wildwood Police Department executed a search warrant for an apartment at 3919-3921 Pacific Avenue. Defendant was apprehended in the bathroom, kneeling at the toilet, which he had flushed. Water was still swirling in the bowl, and Detective Edward Ramsey of the Wildwood Police Department reached in the bowl and retrieved seven small clear plastic bags. Subsequent testing showed that the bags contained cocaine. Defendant was placed under arrest and searched; the search turned up $1025 in cash and another small clear plastic bag containing a white powder. In addition, a quantity of marijuana was recovered from the living room in the apartment.
Testimony at defendant's trial established that the apartment was within one thousand feet of Wildwood High School. Testimony also established that the apartment was within five hundred feet of the George F. Boyer Historical Museum. The museum is managed by the Wildwood Historical Society in a building that is owned by the municipality and leased to the Society. The Society is a New Jersey non-profit corporation.
On appeal, defendant raises the following arguments:
THE TRIAL COURT SHOULD HAVE GRANTED HOYLE'S MOTION TO SUPPRESS BECAUSE THE WILDWOOD POLICE FAILED TO COMPLY WITH THE TERMS OF THE "KNOCK AND ANNOUNCE" SEARCH WARRANT AS A MATTER OF LAW.
THE TRIAL COURT ERRED IN DENYING HOYLE'S MOTION TO DISMISS COUNTS 3 AND 9 BECAUSE THE STATE FAILED TO DEMONSTRATE THAT THE ALLEGED DRUG ACTIVITY OCCURRED WITHIN 500 FEET OF A PUBLIC BUILDING.
HOYLE'S SENTENCE IS EXCESSIVE ...