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State v. Davis

July 23, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAUVON DAVIS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-06-1187.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 24, 2009

Before Judges Fuentes and Gilroy.

On June 6, 2006, a Monmouth County Grand Jury charged defendant Dauvon Davis with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35- 10a(1) (Count One); second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(2) (Count Two); and third-degree possession of a CDS with intent to distribute within 1,000 of school property, N.J.S.A. 2C:35-7 (Count Three). On September 26, 2006, defendant filed a motion seeking to suppress evidence; the court denied the motion on November 29, 2006. On December 19, 2006, defendant pled guilty to Count Three pursuant to a negotiated plea agreement, in exchange for the State agreeing to dismiss Counts One and Two. Under the plea agreement, the State agreed to recommend an extended-term sentence, pursuant to N.J.S.A. 2C:43-6f, of eight years of imprisonment with a forty-two month period of parole ineligibility, and defendant reserved his right to appeal the denial of his motion to suppress evidence.

On March 30, 2007, the court granted the State's motion for an extended-term sentence, defendant having previously been convicted on two separate occasions of distribution of a CDS and possession of a CDS. After finding aggravating sentencing factors N.J.S.A. 2C:44-1a(3), (6) and (9), and no mitigating factors, the court sentenced defendant in accordance with the plea agreement. The court also imposed all appropriate fines and penalties and dismissed Counts One and Two.

On appeal, defendant argues:

POINT I.

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE [UNITED STATES CONSTITUTION] AND ART. I, PAR. 7 OF THE [NEW JERSEY CONSTITUTION] WAS VIOLATED BY THE ILLEGAL SEARCH AND SEIZURE.

POINT II.

THE SENTENCE IS EXCESSIVE.

A. THE IMPOSITION OF THE EIGHT-YEAR EXTENDED TERM SHOULD BE VACATED BECAUSE THE TRIAL COURT DID NOT INDEPENDENTLY REVIEW THE PROSECUTOR'S DECISION TO SEEK AN EXTENDED TERM.

B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND ...


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