February 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HENRY J. ROMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-05-1272.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2010
Before Judges Gilroy and Simonelli.
On May 31, 2007, an Atlantic County Grand Jury charged defendant with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); second-degree possession of a CDS within 500 feet of a public housing facility, public park or public building, N.J.S.A. 2C:35-7.1 (count three); and third-degree possession of a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count four). Following indictment, defendant filed a motion seeking to suppress evidence found during a search of the rear of the police patrol vehicle in which he had been transported from the scene of arrest to police headquarters. On June 6, 2008, following an evidentiary hearing, the trial court rendered an oral decision denying the motion.*fn1
On July 11, 2008, defendant entered into a negotiated plea agreement whereby he pled guilty to counts three and four in exchange for the State agreeing to dismiss counts one and two and to recommend that defendant not only be sentenced to a term of five years of imprisonment with a two and one-half year period of parole ineligibility, but also that the sentence run concurrent with any federal violation of probation sentence that defendant may serve. On September 12, 2008, the trial court sentenced defendant on count three pursuant to the plea agreement. The court merged count four with count three and dismissed the remaining two counts. The court also imposed all appropriate fines and penalties.
On appeal, defendant argues:
THE TRIAL COURT'S DENIAL OF THE MOTION TO SUPPRESS EVIDENCE WAS [ERRONEOUS] AND A VIOLATION OF DEFENDANT'S FOURTH AMENDMENT RIGHTS.
An appellate court's scope of review of a trial court's factual determination is limited. State v. Robinson, 200 N.J. 1, 15 (2009). On reviewing a motion to suppress, we "'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, factual findings of the trial court are entitled to deference when they "'are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting Elders, supra, 192 N.J. at 244).
We have considered defendant's argument in light of the record and applicable law. We conclude that the argument presented is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge DeLury in his oral decision of June 6, 2008.