March 18, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
YAZID MUSLIM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 07-01-0261, 07-01-0223 and 07-02-0361.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 2, 2010
Before Judges Wefing and Grall.
Following the denial of his motion to suppress the drugs seized at the time of his arrest, defendant Yazid Muslim negotiated a plea bargain. Without reserving the right to appeal from the denial of any pre-trial motion, R. 3:9-3(f), defendant provided a factual basis and pled guilty to possessing a controlled dangerous substance, heroin, with intent to distribute within 500 feet of a public recreation area, the Atlantic City boardwalk, which is a crime of the second degree, N.J.S.A. 2C:35-7.1; to violating a condition of his community supervision by consuming drugs, a crime of the fourth degree, N.J.S.A. 2C:43-6.4d; and failing to register as required by N.J.S.A. 2C:7-2, a crime of the fourth degree, ibid. The judge also imposed the appropriate fines, assessments and monetary penalties. Defendant appeals.
Police officers accompanied a woman to defendant's apartment so that she could retrieve her belongings. Defendant let them into his apartment. An officer saw the drugs on a shelf in an open closet, and he arrested defendant without incident.
Defendant appeals. He raises these issues:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR SUPPRESSION OF EVIDENCE.
II. THE DEFENDANT SHOULD BE ALLOWED TO WITHDRAW HIS PLEA SHOULD HE PREVAIL IN THIS APPEAL. (NOT RAISED BELOW).
III. THE DEFENDANT WAS NOT MIRANDIZED BEFORE HE WAS ASKED TO SIGN THE 'ADMISSION' FORM [ACKNOWLEDGING DRUG USE IN VIOLATION OF THE CONDITIONS OF HIS COMMUNITY SUPERVISION]. (NOT RAISED BELOW).
IV. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
After review of the record in light of the arguments presented, it is apparent that defendant's arguments lack sufficient merit to warrant discussion in a written opinion beyond a brief explanation of our reasons for reaching that conclusion. R. 2:11-3(e)(2). There is no question that defendant would be entitled to withdraw a conditional plea if a ruling on a suppression motion were reversed, but he is not entitled to that relief. While defendant's objections to the denial of his motion to suppress are properly before us pursuant to Rule 3:5-7(d), the trial court's determination that the search was within the plain view exception to the warrant requirement, State v. Bruzzese, 94 N.J. 210, 236-37 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984); State v. Padilla, 321 N.J. Super. 96, 109 (App. Div. 1999), aff'd, 163 N.J. 3 (2000), is fully consistent with the law, and supported by sufficient credible evidence in the record, State v. Locurto, 157 N.J. 463, 471 (1999). By failing to raise the question of a violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966) prior to his plea and to reserve the right to renew a challenge on appeal, defendant has waived any violation. State v. Knight, 183 N.J. 449, 471 (2005); see R. 3:9-3(f). Finally, defendant's sentence, which is the minimum sentence for a crime of the second degree and accompanied by a discretionary period of parole ineligibility, is the product of the judge's assessment of the aggravating factors supported by the record and the absence of any evidence supporting a basis for mitigation. It is not shocking to the judicial conscience, and this court may not interfere. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180 (2009).
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