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State v. Gregory

September 15, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARVIN GREGORY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-02-0156.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 9, 2009

Before Judges Payne and Waugh.

Defendant Marvin Gregory pled guilty to: third-degree conspiracy to possess a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count four); and fourth-degree obstruction of justice, N.J.S.A. 2C:29-1 (count five). He now appeals from the denial of his motion to suppress and also from the sentence imposed following his guilty plea. We affirm as to the motion to dismiss and remand for resentencing because there was no explanation for the imposition of the consecutive sentence.

I.

We glean the following facts, largely from the transcript of the motion to suppress.

New Brunswick Police Lieutenant Paul Schuster testified that he was working in the anti-crime unit, which is the department's narcotics squad, on December 13, 2005. At around 7 p.m., Schuster and nine other officers went to 5 Hoffman Boulevard to look for William Shepherd, for whom there were arrest warrants on various charges, including aggravated assault and weapons possession. Based on information from a confidential informant, Schuster believed that Shepherd would be going to apartment 2-A at 5 Hoffman Boulevard that night to provide the occupants with heroin and cocaine.

At around 7:25 p.m., Schuster saw Shepherd, along with Gregory and Dimitrius Richardson, approach 5 Hoffman Boulevard. Schuster testified that the three men entered the building "before [he] could direct [his] officers to make the arrest." Schuster stated that he recognized both Gregory and Richardson. He checked to see if there were any outstanding warrants for either. There were two warrants for Gregory; one for contempt of court and one for violation of probation. It is unclear from the record whether there were any outstanding warrants for Richardson. Schuster testified that he then decided to wait for the men to come out of the building, positioning some of his officers closer to the entrance.

After approximately forty-five minutes, Richardson emerged from the apartment building by himself. According to Schuster, after Richardson walked by one of the unmarked surveillance vans, he turned around and started walking back to 5 Hoffman Avenue, dialing his cell phone. Schuster "felt that he was more than likely notifying Mr. Shepherd of the police presence." The officers detained Richardson.

Schuster and other officers entered 5 Hoffman Avenue. Schuster "first tried ringing the downstairs doorbells, to try to gain access to the common hall." After getting no response, he "began ringing the second floor doorbells, and banging on the doors, and nobody responded."

Detective Christopher Plowucha was assigned to watch the rear of 5 Hoffman Avenue on the evening of December 13, 2005, assisted by Patrolman Yurkovic. The two were in plain clothes and an unmarked car. Plowucha observed Gregory and Shepherd "knock[] out the screen window or window on the second floor" and start to climb down the fire escape. Plowucha announced himself as a police officer and ordered the men to stop. Gregory and Shepherd then climbed back into the apartment. Plowucha pursued them, ascending the fire escape. Plowucha testified that he made two radio transmissions to Schuster, "once when [Gregory and Shepherd] were coming down and once when they stopped coming down and they were going back up."

Following the transmission from Plowucha that Gregory and Shepherd were heading down the fire escape, Schuster and his companions forced their way into the common hallway in the building. Once on the second floor landing, Schuster encountered the owner of apartment 2-A, who informed the officers that 2-A was his apartment. Schuster told the owner to open the door, but he maintained that he could not because "he was locked out." Schuster then received the transmission from Plowucha that Gregory and Shepherd were headed back into the apartment.

Schuster and the other officers then forced open the door to the apartment and "ran through the apartment to the bedroom." Schuster reported other officers observed Shepherd "discarding some heroin in a closet" and Gregory "discarding some cocaine in that same bedroom." Both men were placed under arrest. In addition to Gregory and Shepherd, there were four other individuals in the ...


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