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State v. Battle

May 7, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KASHIF BATTLE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-11-1979.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2009

Before Judges Fisher and Baxter.

In this appeal, we consider and reject defendant's argument that, even though there was probable cause to search, evidence seized from an automobile should be suppressed because exigent circumstances were not presented.

Following the denial of his motion to suppress evidence, defendant pled guilty to third-degree possession of cocaine with the intent to distribute within a school zone, N.J.S.A. 2C:35-7.

He was sentenced to an extended term sentence of seven years imprisonment with a forty-two-month period of parole ineligibility, and appealed, raising the following arguments for our consideration:

I. THE WARRANTLESS SEARCH WAS NOT JUSTIFIABLE AS A SEARCH INCIDENT TO ARREST OR UNDER THE AUTOMOBILE EXCEPTION, AND, THUS, THE FRUITS OF THAT UNCONSTITUTIONAL SEARCH SHOULD HAVE BEEN SUPPRESSED.

II. DEFENDANT'S EXTENDED TERM SENTENCE IS ILLEGAL BECAUSE THE DICTATES OF N.J.S.A. 2C:44-6[e] AND RULE 3:21-4[(e)] WERE NOT FOLLOWED. ADDITIONALLY, THE SENTENCING COURT ERRED IN IMPOSING AN EXTENDED TERM IN THE ABSENCE OF AN ADEQUATE EXPLANATION BY THE STATE FOR WHY IT WAS SEEKING IMPOSITION OF AN EXTENDED TERM (Not Raised Below).

A. Defendant's Extended Term Sentence Is Illegal.

B. The State Failed To Make A Record Of Why It Was Seeking Imposition Of An Extended Term In This Case.

We find insufficient merit in Point II and its subparts to warrant discussion in a written opinion. R. 2:11-3(e)(2). We reject Point I for the following reasons.

At the suppression hearing, the judge heard only the testimony of Officer Walter Chowanec; defendant did not testify, nor did he call any witnesses. The judge found credible Officer Chowanec's testimony, which revealed that, at approximately 9:15 p.m., on August 29, 2006, after being advised by another officer that a black male was selling drugs on Montgomery Avenue in Jersey City, Officer Chowanec and his partner proceeded to the area in an unmarked vehicle. From a short distance, Officer Chowanec observed a group of approximately twenty-five individuals, including one black male, the defendant, who retrieved a brown paper bag from a parked Chevrolet Lumina, removed a plastic bag from the brown paper bag, removed a small object from the plastic bag, and handed the item to a woman, Eva Coleman. Suspecting this was a drug transaction, Officer Chowanec and his partner approached the group to effectuate an arrest.

As the officers approached, someone in the crowd yelled "five-o," and Coleman threw an object into the crowd as defendant threw the brown paper bag onto the front seat of the Lumina and closed the vehicle's door. Both Coleman and defendant were arrested; Coleman admitted to the officers that the item she threw into the crowd was a vial of cocaine. ...


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