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State v. Montgomery

August 3, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JERRY MONTGOMERY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANIEL TOKYO GATSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-04-0934.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted (A-0705-06T4): April 29, 2009

Argued (A-1926-06T4): April 29, 2009

Before Judges Cuff, C.L. Miniman and Baxter.

In January 2002, a home in Upper Saddle River was broken into by defendants Jerry Montgomery and Daniel Gatson. A third person, who drove the getaway van, pled guilty and testified against defendants. Defendants cut the telephone and burglar alarm wires, broke down the front door, forced the nanny to the floor to search for her cell phone, and then herded the nanny and three children into a basement bathroom and locked the door.

A jury found both defendants guilty of third degree burglary, N.J.S.A. 2C:18-2 (Count One); second degree robbery, N.J.S.A. 2C:15-1 (Count Two); four counts of false imprisonment, N.J.S.A. 2C:13-1 (Counts Three, Five, Six and Seven); and hindering one's prosecution, N.J.S.A. 2C:29-3b(4) (Count Eight). Both defendants were acquitted of kidnapping and terroristic threats.

Gatson is serving an aggregate term of thirty years and six months imprisonment. The twenty-year term of imprisonment imposed on Count Two is subject to the eighty-five percent parole ineligibility term of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentence is also to be served consecutive to any other term Gatson was serving at the time of sentence.

Defendant Montgomery is serving an eight-year term of imprisonment on Count Two. This term is subject to the NERA parole ineligibility term. The judge imposed five-year terms on Counts One and Eight and six-month terms on Counts Three, Five, Six and Seven to be served concurrently to Count Two. The appropriate fines, penalties, and assessments were imposed on both defendants.

On appeal, defendant Gatson raises the following points:

POINT I - DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HIS MOTION TO SUPPRESS THE EVIDENCE SHOULD HAVE BEEN GRANTED.

POINT II - DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE GUILTY VERDICT AS TO THE ROBBERY CONVICTION SHOULD HAVE BEEN GRANTED.

POINT III - DEFENDANT'S SENTENCE WAS EXCESSIVE AND THEREFORE MUST BE MODIFIED.

A. The Lower Court Abused Its Discretion By Imposing An Extended Term; In The Alternative, This Matter Must be Remanded For Resentencing Pursuant To State v. Pierce.

B. Consecutive Terms Should Not Have Been Imposed.

In a supplemental brief, Gatson raises the following issues:

ISSUE I

THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED

SUBSECTION A

THE POLICE WERE NOT JUSTIFIED IN STOPPING THE MOTOR VEHICLE UNDER THE COMMUNITY CARETAKER DOCTRINE

SUBSECTION B

EVEN IF THE POLICE WERE JUSTIFIED IN INITIALLY STOPPING THE MOTOR VEHICLE UNDER THE COMMUNITY CARETAKER DOCTRINE, THE INITIAL RATIONALE FOR THE STOP IMMEDIATELY DISSIPATED; POLICE ACTIVITY BECAME AN INVESTIGATORY SEIZURE WITHOUT ARTICULABLE REASONABLE SUSPICION

SUBSECTION C

WITHOUT OBTAINING A WARRANT TO SEARCH THE MOTOR VEHICLE, POLICE SEARCHED THE VEHICLE AFTER THE OCCUPANTS WERE ...


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