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State v. Gutierrez

September 21, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GIOVANNI GUTIERREZ, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-05-0863.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 14, 2009

Before Judges Fisher and Grall.

A jury found defendant Giovanni Gutierrez guilty of possession of a controlled dangerous substance, less than one-half ounce of cocaine, with intent to distribute, a crime of the third degree pursuant to N.J.S.A. 2C:35-5a(1) (count one); third-degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count two); and second-degree possession of cocaine with intent to distribute while within a public housing zone, N.J.S.A. 2C:35-7.1 (count three). The jury acquitted defendant of conspiring to distribute cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1), and acquitted his co-defendant, M.R., on all counts.

After merging defendant's convictions on counts one and two, the judge sentenced defendant as follows: on count two, N.J.S.A. 2C:35-7, an extended term of ten years, five to be served without possibility of parole; and on count three, N.J.S.A. 2C:35-7.1, a ten-year term, five to be served with possibility of parole, concurrent with the sentence imposed on count two. The judge also imposed a $1000 DEDR penalty on count two; a $2000 DEDR penalty on count three; a $50 lab fee on both counts; a $50 VCCB assessment on both counts; a $75 SNSF assessment on both counts; and one $30 LEOTEF penalty.

At about 11:45 p.m. on March 9, 2007, Sergeant Carlo Segarra of the Union City Police Department was patrolling in an unmarked police car. The detective saw someone hand money to M.R., after which M.R. and another person walked around the corner.

The detective repositioned his car so he could see M.R. The detective saw M.R. gesture to his companion as if to indicate that his companion should wait for him. M.R. then walked alone toward a car parked on the street. Defendant was in the car; M.R. knocked on the window and passed money to defendant. After giving defendant the money, M.R. got into the car. Defendant drove away, and the detective followed.

Defendant parked in a driveway less than a block away and on the same street. The detective stopped and left his unmarked police car. As he approached defendant's car in the driveway from behind, he saw defendant take something from a backpack and hand it to M.R. Accepting what defendant had given him, M.R. opened the car door and got out. Upon seeing the detective, M.R. addressed him by name, said he was "not doing anything" and dropped what he had in his hands to the ground. At that point, the detective directed M.R. to stand against the car and told defendant to keep his hands on the steering wheel.

The detective then called for back-up. Sergeant Luster was the only officer to respond. When Luster arrived, the detective retrieved the two clear wraps of cocaine that M.R. had dropped, searched defendant's person and found five more clear wraps of cocaine in his front pants' pocket. In the backpack defendant had left on the front seat of the car, the detective found siX more plastic wraps of cocaine, a large plastic bag of cocaine and an aspirin bottle with twenty-five clear wraps of crack cocaine.

There was evidence that tended to establish that the area in which the events transpired was within 1000 feet of school property and 500 feet of a senior citizen housing facility.

Neither defendant nor co-defendant testified at trial.

On appeal defendant presents two issues:

I. THE TRIAL COURT ERRED IN SUMMARILY DISMISSING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AT THE OUTSET OF TRIAL WITHOUT A HEARING, THEREBY RELIEVING THE STATE OF ITS BURDEN TO DEMONSTRATE THE ...


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