On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-04-0136.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2008
Before Judges Wefing, Yannotti and LeWinn.
Defendant Markese Smith was indicted for third-degree possession of a controlled dangerous substance (CDS), cocaine, in violation of N.J.S.A. 2C:35-10(a)(1). Prior to trial, defendant brought a motion to suppress evidence on the basis of a warrantless search and a motion to dismiss the indictment based on fundamental fairness. The trial judge denied both motions and the matter proceeded to trial. On the second day of trial, defendant moved for a mistrial claiming unfair surprise from new evidence discovered by the State following the testimony of one of its witnesses. The trial judge granted the motion for a mistrial. Defendant thereafter entered a plea of guilty to the charge of third-degree possession of cocaine, and was subsequently sentenced to 180 days in the Warren County Correction Center with a two-year probationary period. On appeal, defendant raises the following issues for our consideration:
POINT I: THE TRIAL ERRED [BY] DENYING THE [DEFENDANT'S] MOTION TO SUPPRESS THE EVIDENCE.
POINT II: THE INDICTMENT SHOULD HAVE BEEN DISMISSED BASED ON THE DOCTRINE OF FUNDAMENTAL FAIRNESS.
POINT III: THE INDICTMENT SHOULD HAVE BEEN DISMISSED AT TRIAL BECAUSE OF UNFAIR SURPRISE AND PROSECUTORIAL MISCONDUCT. (NOT RAISED BELOW).
A. Unfair Surprise At Trial Warranted Dismissal Of The Indictment With Prejudice.
B. The Prosecutor's Misconduct Justified The Dismissal Of the Indictment.
POINT IV: THE INDICTMENT SHOULD HAVE BEEN DISMISSED BASED ON FAILURE OF MANDATORY JOINDER.
Having reviewed these contentions in light of the record and the controlling law, we affirm.
At the motion to suppress hearing, Officer Travis Zechman, of the Phillipsburg Police Department, testified that he was on duty on December 20, 2005, and responded to a "large fight." Upon arrival, he observed "three men fighting[,] . . . one man on the ground, two men on top of him. . . . One was punching at him. The other man kicked him at least one time." Zechman identified defendant as the man "punching at the man on the ground." When Zechman approached, defendant "saw [him] and turned and started to run." After a brief pursuit, Zechman grabbed defendant, brought him back to the scene and told him to sit down.
While Zechman was talking to the other two individuals, Officer James P. Stettner arrived on the scene. Zechman advised Stettner that defendant was under arrest for simple assault and asked the officer to handcuff him. Zechman testified that the weather on that date was cold, with snow on the ground, and that ...