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State v. Talley

June 3, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN JULIUS TALLEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-04-1274.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 3, 2010

Before Judges Lisa and Coburn.

After losing his motion to suppress evidence seized by the police, defendant entered a plea agreement with the State. He pled guilty to violating N.J.S.A. 2C:39-7(b), a second degree crime that prohibits certain persons from having a weapon, which in this case was a loaded handgun. He received a sentence of imprisonment for six years with five years of parole ineligibility. On appeal, defendant's only contention is that the trial judge erred in denying his motion to suppress. We disagree and therefore affirm.

I.

At 8:30 p.m., on January 2, 2008, Winslow Township police officers executed a search warrant at *** Stevens Avenue, a private residence in which the target, Gary Bey, lived. Before applying for the warrant, the police officers made three undercover purchases of narcotics from Gary Bey. The exchanges of money for narcotics occurred outside *** Stevens Avenue, usually in the yard along the side of the house. On each occasion, Bey would walk outside and meet the undercover officer who was seated in a car and the purchase would be made through the car window. The last purchase was made ten minutes before the officers arrived to execute the warrant. Before the last purchase, a concerned citizen told the police that defendant, John Julius Talley, and Bey were "probably working together" at *** Stevens Avenue distributing narcotics.

The application for the search warrant, dated December 28, 2007, only described the first two purchases, which occurred on December 21 and 26, 2007. It asked for authority to search the premises known as *** Stevens Avenue, a single-story building, and "all persons present, reasonably believed to be connected with said property and investigation, for evidence including: controlled dangerous substances . . . ." The warrant, signed by a judge of the Superior Court and dated December 28, 2007, authorized the search of the premises and included permission to search "all persons present therein reasonably believed to be connected with said property and investigation . . . ."

Although lookouts were not observed during the three narcotics purchases, the testimony regarding execution of the warrant indicated that lookouts are "almost always present."

When the police arrived, it was very dark outside. A truck was parked in the front yard of Bey's house about fifteen feet from the front left window. Two men were inside, both "slouching down into the center" of the vehicle. They appeared to be trying to hide from the police. Believing that the two men were working with Bey, the police approached the truck. One of the officers opened the passenger door and pulled the defendant, whom he recognized from prior dealing, out of the truck and handcuffed him. The officer noticed a bulge in defendant's pants which felt to the officer like the grip of a handgun. In fact, it was a loaded .38 caliber revolver. After retrieving the gun, the officer placed defendant under arrest.

Still at the scene, the officer checked with headquarters and found that there were two outstanding warrants for defendant's arrest. The officer testified that even if he had not found the gun initially, he would have detained the defendant at the scene while checking for arrest warrants and would then have recovered the gun during a search incident to the arrests on the outstanding warrants.

The defendant admitted that he was in possession of the gun, but denied that he or his companion had slouched down in response to the appearance of the police. Indeed, he said they both remained sitting upright. He also denied that he was present as a lookout for Bey.

II.

The judge found the testimony of the police officers to be more credible than that offered by the defendant. Since there is sufficient evidence to support the judge's findings, we must accept his determination with respect to what occurred. State v. Locurto, 157 N.J. 463, 472, 474 (1999). On the other hand, no special deference is required ...


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