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State v. Peterkin

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LARRY MAURICE PETERKIN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-06-00721-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 1, 2009

Before Judges Carchman and Sabatino.

This is an appeal from a motion to suppress. Defendant Larry M. Peterkin asserts that the motion judge erred in denying the motion because the warrantless search and seizure of the crack pipe violated the United States and New Jersey Constitutions. Specifically, defendant claims that the stop of defendant was an investigative stop that became a de facto arrest without probable cause.

We have carefully reviewed the briefs and considered the arguments of counsel and are satisfied that defendant's arguments are without merit, R. 2:11-3(e)(2), and we affirm for the reasons set forth in Judge Falcone's thoughtful and thorough oral opinion of September 28, 2006.

We deem it appropriate to comment on a procedural anomaly regarding this appeal.

Defendant was charged with one count of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). Thereafter, defendant filed a motion to suppress, which was denied. Defendant then entered a plea of guilty, and on November 3, 2006, defendant was sentenced to a probationary term of one year. No appeal was taken from the judgment of conviction, including the search.

Within the one-year probationary term, defendant was charged with a violation of probation. Following a hearing adjudicating the such violation, his probation was revoked, and he was resentenced to a three-year prison term. The judgment of conviction on the violation of probation was entered on May 18, 2007.

On April 25, 2008, defendant filed a notice of appeal, not from the May 18, 2007 judgment but from the original November 3, 2006 judgment. For the first time on appeal, he now challenges the search that gave rise to the entry of that judgment. Defendant is out of time to appeal the validity of the search.

R. 2:4-1(a) (requiring the filing of an appeal within forty-five days of final judgment). While Rule 3:5-7(d), preserves the right to appeal an unsuccessful motion to suppress after the entry of a plea, the right of appeal from such denial accrues upon the entry of the judgment emanating from the plea. Consequently, defendant's appeal of the trial court's suppression ruling is out of time.

Although we could dismiss this appeal as untimely, we have [nonetheless] considered the merits and affirm.

Affirmed.

20090630

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