On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-01-00020.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 25, 2009
Before Judges Sabatino and Chambers.
Defendant Nanette L. Malave appeals her conviction and sentence for third-degree possession of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). While we affirm the conviction and sentence in this direct appeal, we do not address the issues raised by defendant regarding her counsel's failure to make a motion to suppress and the merits of such a motion. Those questions are better left to a petition for post-conviction relief.
On August 7, 2005, defendant was observed by Officer James Crilly of the Clinton Police Department driving her car on Route 31. The vehicle was traveling back and forth from the right to the left lane, the right blinker was on for an extended period of time, and the driver flicked a cigarette ash out the window. As a result, Officer Crilly stopped the vehicle. When he approached, he detected the odor of alcohol and observed beer cans in the car. Another officer administered the sobriety tests. Officer Crilly testified at trial that after the sobriety tests were conducted, he decided not to charge defendant with driving under the influence. He then asked defendant "if she had... anything illegal on her person that we didn't find." In compliance with this request, defendant turned over to him a straw and a vial containing suspected cocaine. The officer then searched her purse and found an additional eleven vials and another straw.
At trial, Melissa Smith, a forensic scientist at the New Jersey State Police Office of Forensic Sciences, testified that the vials contained trace amounts of cocaine; the quantity of the residue was so small that it could not be weighed. Defendant testified at trial and admitted that she had obtained one vial of cocaine which she used at a party the night before the stop. She could not account for the other eleven vials found in her purse. The defense argued in summation that the State had not proven an essential element of the charge, namely defendant's knowledge that she possessed cocaine. The defense maintained that defendant thought the vials were empty and that she was unaware they contained cocaine. Nonetheless, the jury found defendant guilty of possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1).
Defendant was sentenced to two years probation. As conditions of probation, she was required to serve ninety days in the county jail, which she was allowed to serve on weekends, to submit to random drug screens and a substance abuse evaluation, and to perform fifty hours of community service. Her driving privileges were forfeited for six months. She was also required to pay the requisite monetary penalties, fines, and costs, and to submit to the required DNA analysis.
On appeal, defendant raises the following issues:
CONTINUED DETENTION OF THE DEFENDANT AFTER SHE PASSED THE SOBRIETY TEST WAS UNREASONABLE AND VIOLATED THE FOURTH AMENDMENT. CONSEQUENTLY, EVIDENCE PRODUCED FROM THIS ILLEGAL DETENTION ...