On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5879.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Reisner.
On October 2, 2007, defendant was arrested and charged with being in possession of untaxed cigarettes, N.J.S.A. 54:52-18 and N.J.S.A. 54:40A-28. He unsuccessfully moved in the municipal court for the suppression of the untaxed cigarettes seized both from his person and from the trunk of his car, following which defendant pled guilty. The municipal judge then imposed a $350 fine and other costs.
Defendant appealed to the Law Division, where he again moved for the suppression of evidence, and also moved for the withdrawal of his guilty plea. For the reasons expressed in a written opinion, Judge Joseph P. Donohue granted the suppression motion in part.
As the judge explained, a police officer observed from a distance defendant engage in a hand-to-hand transaction, which appeared to him to be a drug transaction, with one of several persons gathered near the open trunk of defendant's vehicle. Upon the approach of the police vehicle, the group walked away and defendant entered his vehicle, placed a green object into his front right pocket, and began to drive away. The officer pulled defendant's vehicle over to the side of the road and, after approaching the vehicle, directed defendant to step out. As defendant exited his vehicle, the officer observed a pack of cigarettes with a white Virginia tax stamp in his right front pocket. Following that discovery, the officer searched the trunk of defendant's vehicle, finding a great many more packs of untaxed cigarettes.
Judge Donohue found the seizure of the cigarette pack in defendant's pocket to be lawful, but granted the motion to suppress as to the cigarettes seized from the trunk of defendant's vehicle. The judge also denied defendant's motion to vacate the guilty plea and sentenced him to a $50 fine together with other costs.
Defendant then filed this appeal, presenting the following arguments:
I. THE LAW DIVISION ERRED IN NOT VACATING THE DEFENDANT'S GUILTY PLEA FOR ONE PACK OF CIGARETTES WHICH WERE DISMISSED BY THE UNION COUNTY PROSECUTOR'S OFFICE FROM WHICH THE [ARRESTING OFFICER] STATED THE DEFENDANT SOLD A QUANTITY OF CIGARETTTES.
II. [THE ARRESTING OFFICER] ADMITTED TO FALSELY ARRESTING THE DEFENDANT FOR THE ONE PACK OF CIGARETTES. [THE ARRESTING OFFICER] ALSO ADMITTED TO ILLEGALLY SEARCHING AND SEIZING THE DEFENDANT'S VEHICLE AND MONIES. HE LATER GAVE THE DEFENDANT A SUMMONS FOR THE CIGARETTES IN HIS TRUNK.
We reject these arguments.
Even though Judge Donohue granted the suppression motion regarding the cigarettes seized from the trunk of defendant's vehicle, he also correctly found that the untaxed pack of cigarettes in defendant's pocket was lawfully seized. Possession of that single pack was sufficient to provide the factual basis for defendant's free and voluntary guilty plea. And, in recognizing the lesser severity of the offense than suggested by the record before the municipal judge, who sentenced defendant in light of the larger cache of untaxed cigarettes in defendant's trunk, Judge Donohue, in his discretion, imposed a lighter $50 fine. Judge Donohue's rulings on the motion to suppress evidence and the motion to vacate the guilty plea were based on correct principles of law and the sentence he imposed fell well within his ...