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State v. Guest

July 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TIMOTHY GUEST, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-10-3067 and 06-09-2996.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 3, 2010

Before Judges Axelrad, Fisher and Espinosa.

Defendant appeals from his convictions and sentence on drug-related charges. We affirm.

Defendant resolved charges in three indictments through a negotiated plea agreement following the denial of his suppression motions. Indictment No. 06-09-2996 charged him with one count of second-degree conspiracy to both possess and to possess with intent to distribute controlled dangerous substances, N.J.S.A. 2C:5-2 (count one). Defendant was charged in Indictment No. 06-10-3067 with: third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); first-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5(b)(1) (count two); third-degree possession with intent to distribute cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (counts four and eight); second-degree possession of a firearm while violating narcotics laws, N.J.S.A. 2C:39-4.1 (counts five and seven); second-degree conspiracy to possess and distribute cocaine between February 3 and 10, 2006, N.J.S.A. 2C:5-2 (count six); fourth-degree violation of permit regulations for firearms and handguns, N.J.S.A. 2C:39-10 (count nine); and fourth-degree possession of hollow point bullets, N.J.S.A. 2C:39-3(f) (count ten). Indictment No. 06-10-3068 charged defendant with second-degree possession of weapons by a convicted felon, N.J.S.A. 2C:39-7(b).

Defendant moved to suppress evidence that was seized on January 9, 2006; on January 18, 2006 following his arrest; and the evidence seized pursuant to search warrants in February of 2006. Defendant also moved to dismiss count one of Indictment No. 06-09-2996 based upon insufficient evidence.

Judge John C. Kennedy conducted an evidentiary hearing and set forth a detailed description of the relevant evidence in his written opinion, which we substantially adopt here. In that opinion, he also set forth his reasons for denying defendant's motions.

Thereafter, defendant pled guilty pursuant to a plea agreement to count one of Indictment No. 06-09-2996, and counts two, three, four, six and nine of Indictment No. 06-10-3067. Indictment 06-10-3068 and the remaining counts of Indictment No. 06-10-3067 were dismissed. The State agreed to recommend an aggregate sentence of ten years with three-years parole ineligibility and that all sentences run concurrently. Defendant reserved the right to appeal the motions to suppress and dismiss the indictment. Defendant was sentenced, consistent with the terms of the plea agreement to a term of ten years with a three-year minimum period of parole ineligibility on count two of Indictment No. 06-10-3067 and concurrent terms for all other charges.

In this appeal, defendant presents the following issues:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE.

A. THE EVIDENCE RECOVERED FROM THE JANUARY 9, 2006 VEHICLE STOP OF DEFENDANT MUST BE SUPPRESSED AS CAPTAIN DeFRANSISCI AND DETECTIVE ANTONIO PEREZ DID NOT ESTABLISH A REASONABLE BELIEF THAT DEFENDANT WAS INVOLVED IN CRIMINAL ACTIVITY.

B. THE EVIDENCE RECOVERED FROM THE JANUARY 28, 2006 STOP OF DEFENDANT MUST BE SUPPRESSED AS THE EAST ORANGE POLICE OFFICERS HAD NO REASON TO BELIEVE THAT DEFENDANT AND ...


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