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State v. Izzo

March 15, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANA IZZO, A/K/A DANA L. PORTER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-10-0760.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 24, 2010

Before Judges Sapp-Peterson and Espinosa.

Defendant Dana Izzo pled guilty to possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), pursuant to a plea agreement after her motion to suppress evidence was denied by the trial court. She appeals the order denying her motion to suppress statements she made to police prior to her arrest and drugs she surrendered to police at her workplace. R. 3:5-7(d). We affirm.

The evidence presented at the suppression hearing is set forth in detail in the trial court's written opinion and need not be repeated here. We note only the following salient facts.

At approximately 11:45 a.m. on September 18, 2007, Officers Joseph Buda and William Sampson of the Manville Police Department arrived at defendant's place of employment, Cool-OMatic, in response to a report of suspected drugs in a parked vehicle. Officer Buda met with Arthur Stainer, the business owner, who advised that "several" of his employees saw a man approach defendant's car and place an item that they suspected to be "a bundle of heroin" under the driver's side floor mat. The employees did not wish to be identified. Stainer had not witnessed the incident but knew that defendant had used heroin in the past. Officer Buda also knew of defendant's prior heroin use and knew Stainer to be a well-respected member in the community. Based upon his prior contacts with Stainer, Buda had no reason to doubt him.

Officer Buda asked Stainer if he could speak to defendant in private to avoid embarrassing her. Stainer took the officers to his office and then brought defendant to the office, closed the door and left.

The versions provided by the State and defendant of what occurred thereafter are similar. Defendant asked Officer Buda, "What's the problem?" According to defendant, Officer Buda referred to her twenty-one year old daughter, Jessica, stated that Jessica had always been very cooperative, which worked to her benefit, and that he hoped that she would be cooperative as well. Defendant said that Officer Buda then told her that they had been called because a white male had put something in her car. Officer Buda explained that it was in her interest to cooperate if she had drugs in her possession because the officers would allow her to leave on her own, without handcuffs, and drive herself to police headquarters. In the alternative, Officer Buda stated that he had a K-9 unit trained in the detection of drugs available to inspect her car and, if she did not cooperate and drugs were found, the car would be towed and she would be removed in handcuffs.

Defendant removed several small plastic baggies held together with a rubber band from her pants and surrendered it to Officer Buda. She then started to cry. Defendant stated that she was "going through a rough time lately" and that she uses drugs as a temporary fix although she knows that they do not provide an answer for her problems. Officer Buda asked if she had anything else in her car or on her person. Defendant removed a hypodermic needle from her pocket and stated that she had nothing else.

Defendant was placed under arrest for possession of a controlled dangerous substance and possession of a hypodermic needle. A search incident to arrest was conducted. She was permitted to leave her place of employment without handcuffs. Defendant drove herself to police headquarters, where she was read the Miranda*fn1 warnings and executed a standard Miranda waiver form at 12:15 p.m., thirty minutes after the officers had arrived at Cool-O-Matic.

At police headquarters, defendant confessed that she ordered the package of heroin from a person named "Dave" who directed her to leave $150 under the driver-side floor mat of her car. She received a call from him, advising that he had left the heroin in her car. She retrieved it and intended to use the heroin during her lunch break. The package surrendered by defendant held twelve small wax baggies containing a chalky-colored substance that tested positive in a field test for heroin.

Defendant was charged in a one count indictment with possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and in a complaint with the disorderly persons offenses of possession of narcotics paraphernalia, N.J.S.A. 2C:36-2, and possession of a hypodermic syringe, N.J.S.A. 2C:36-6. Her motion to suppress the drug evidence and her statements was denied. Defendant then pled guilty to the indictment pursuant to a plea agreement in which the disorderly persons offenses were dismissed and the State agreed to recommend a sentence of non-custodial probation. Defendant was sentenced to probation for a period of three years with the ...


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