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State v. Koonce

July 2, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN KOONCE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-01-00005.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2009

Before Judges Parrillo and Lihotz.

Defendant Kevin Koonce appeals from an April 21, 2006 Law Division order denying his motion to suppress the statement made by the thirteen-year-old son of his girlfriend to a police officer, which was used to obtain a warrant to search defendant's residence. Additionally, defendant challenges the specificity of the warrant obtained. The search yielded controlled dangerous substances and weapons.

Following a hearing, Judge Cantor denied defendant's motion to suppress. Thereafter, defendant entered a guilty plea to third-degree possession of CDS with intent to distribute (Indictment No. 06-01-00005) and second-degree certain persons not to possess a weapon (Indictment No. 06-01-00007), pursuant to the terms of a plea agreement with the State.*fn1 Defendant was sentenced to five years imprisonment on the third-degree possession of marijuana with intent to distribute conviction and a concurrent five-year flat sentence on the second-degree weapons offense. Defendant's driver's license was suspended for six months and applicable fines and penalties were imposed. This appeal ensued. R. 3:5-7(d).

On appeal defendant argues:

POINT I

SINCE R.A.'S CONFESSION WAS IN RESPONSE TO INTERROGATION BY CASSIO, AND THE CONFESSION WAS THE BASIS OF THE PROBABLE CAUSE UNDERLYING THE SEARCH WARRANT, THE MOTION JUDGE SHOULD HAVE SUPPRESSED ANY PHYSICAL EVIDENCE THE POLICE RECOVERED WHEN EXECUTING THE SEARCH WARRANT. (PARTIALLY RAISED BELOW)

A. The motion judge applied the wrong standard when deciding whether R.A. had been subjected to the functional equivalent of interrogation.

B. Since Cassio should have known that his words were reasonably likely to prompt an incriminating statement from R.A., he subjected R.A. to the functional equivalent of interrogation.

C. Moreover, Cassio's remark constituted actual interrogation (Not raised below).

1. Both the courts and psychologists have long recognized that children are more susceptible to ...


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