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State v. Bownes

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 22, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
A.D. BOWNES, JR., A/K/A AD BOWNES, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-04-0248.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 7, 2009

Before Judges Yannotti and Chambers.

Defendant A.D. Bownes, Jr. was stopped by a police officer on February 27, 2006, for riding his bicycle without a headlight as required by N.J.S.A. 39:4-10. While defendant initially provided the officer with the wrong name, the officer eventually obtained defendant's correct identity and learned that two arrest warrants were outstanding against defendant. As a result, defendant was arrested, and the officer found a hypodermic syringe, a glass stem, and a wax fold of heroin on defendant's person.

Defendant was indicted for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and fourth-degree hindering prosecution, N.J.S.A. 2C:29-3(b). Defendant was also charged in a complaint with possession with intent to use a hypodermic syringe, a disorderly persons offense, N.J.S.A. 2C:36-6(a), and possession of drug paraphernalia, a disorderly persons offense, N.J.S.A. 2C:36-2. In addition, he was issued a summons for failing to have a headlamp on his bicycle, a motor vehicle offense, N.J.S.A. 39:4-10.

Defendant made various pretrial motions, including motions to suppress evidence and dismiss the indictment, which were denied by the trial court. Thereafter, pursuant to a plea agreement, defendant pled guilty to all of the charges, and he was sentenced to three years probation, 364 days in the county jail, seventy-five hours of community service, and he was required to obtain a drug and alcohol evaluation and to follow its recommendation. In addition, the trial court imposed the requisite monetary fines, penalties, and assessments.

On appeal, defendant raises the following issues:

POINT I THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE.

A. The Police Did Not Have Probable Cause to Search Defendant.

POINT II THE SENTENCES IMPOSED PURSUANT TO DEFENDANT'S CONVICTIONS FOR POSSESSION OF CDS AND DRUG PARAPHERNALIA AND HINDERING APPREHENSION WERE MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

We will uphold the trial court's factual findings on a motion to suppress, provided they are "supported by sufficient credible evidence." State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted). However, we review de novo any legal questions, including whether those facts satisfy the applicable legal standard. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). After a careful review of the record and arguments of counsel in light of the applicable law, we affirm the denial of the motion to suppress for substantially the reasons set forth by the trial judge in his statement of reasons.

With regard to defendant's appeal of his sentence, we note that we may not substitute our judgment for that of the trial court when reviewing sentencing decisions. State v. Cassady, 198 N.J. 165, 180 (2009). We will affirm a sentence provided "the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record" and the sentence does not "shock[] the judicial conscience." Ibid. (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)).

Here the trial court set forth, both on the record at the time of sentencing and in a lengthy written decision attached to the judgment of conviction, the reasons for the sentence. The trial court found aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another offense; aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior criminal record; and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need for deterrence. The trial court also found mitigating factor ten, N.J.S.A. 2C:44-1(b)(10), that defendant would likely respond to probationary treatment. The court found that the aggravating factors outweighed the mitigating factors. These findings are supported by the record. A review of defendant's juvenile and adult record reveals numerous offenses and periods on probation and parole. Further, a sentence pursuant to a plea agreement is presumed to be valid. State v. S.C., 289 N.J. Super. 61, 71 (App. Div.), certif. denied, 145 N.J. 373 (1996).

Affirmed.

20091222

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