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State v. Thomas

May 12, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID THOMAS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-02-0407.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 2, 2010

Before Judges Wefing, Grall and Messano.

Following the denial of his motion to suppress evidence, defendant David Thomas was tried by a jury and convicted of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). Before sentencing, pursuant to a plea bargain reached with the State, defendant pled guilty to a single count of a second indictment, charging him with burglary, N.J.S.A. 2C:18-2. Under the terms of the agreement, the State would recommend an extended term of seven years imprisonment, with a three and one-half year period of parole ineligibility on the drug charge, and a concurrent sentence of three years on the burglary conviction.

On the day of sentence, defendant sought to withdraw his guilty plea to the burglary charge; the judge denied his motion. Subsequently, the judge denied defendant's motion for a new trial, and sentenced defendant in accordance with the terms of the plea agreement.

On appeal, defendant raises the following issues for our consideration:

POINT I.

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BEFORE TRIAL, AS THE ARRESTING OFFICER LACKED PROBABLE CAUSE OR REASONABLE SUSPICION TO STOP DEFENDANT AND THE EVIDENCE HE RECOVERED AT THE TIME OF THE ARREST WAS THE FRUIT OF AN ILLEGAL SEARCH AND SEIZURE.

POINT II.

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA TO THIRD DEGREE BURGLARY, AS THE MOTION WAS MADE BEFORE SENTENCING AT A TIME WHEN THE MOTION SHOULD HAVE BEEN LIBERALLY GRANTED.

POINT III.

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF CDS AT TRIAL AS THE STATE DID NOT PRESENT SUFFICIENT PROOF TO ESTABLISH THE CHAIN OF CUSTODY, VIOLATING DEFENDANT'S CONFRONTATION RIGHTS UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARA. 10 OF THE NEW JERSEY CONSTITUTION.

POINT IV.

THE TRIAL COURT ERRED IN REFUSING TO ADMIT PHOTOGRAPHS TAKEN BY A DEFENSE INVESTIGATOR OF THE AREA WHERE DEFENDANT WAS ARRESTED.

POINT V.

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL AS THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VI.

THE TRIAL COURT ERRED IN IMPOSING A DISCRETIONARY EXTENDED TERM SENTENCE[,] AS THE NOTICE OF MOTION TO SEEK AN EXTENDED TERM SENTENCE WAS NOT FILED WITHIN FOURTEEN DAYS OF CONVICTION AS REQUIRED BY R. 3:21-4(e).

We have considered the arguments raised in light of the record and applicable ...


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