July 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
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 PIERRE SANON WERE INVOLVED IN CRIMINAL ACTIVITY.
C. THE EVIDENCE RECOVERED FROM DEFENDANT'S HOME AT 811 PLAZA DRIVE MUST BE SUPPRESSED BECAUSE THE FEBRUARY 14, 2006 AFFIDAVIT OF DETECTIVE FRANCIS IN SUPPORT OF THE WARRANT WAS PREMISED ON ILLEGALLY OBTAINED EVIDENCE AND NO INDEPENDENT PROBABLE CAUSE EXISTED FOR THE SEARCH OF THE PREMISES.
THE TRIAL COURT ERRED IN DENYING AN EVIDENTIARY HEARING REGARDING THE AFFIDAVIT SUBMITTED BY EAST ORANGE POLICE ON JANUARY 19, 2006, TO SUPPORT A SEARCH WARRANT OF DEFENDANT'S VEHICLE.
THE TRIAL COURT ERRED IN FAILING TO DISMISS COUNT ONE OF INDICTMENT 06-09-2996 BECAUSE OF INSUFFICIENCY OF EVIDENCE BEFORE THE GRAND JURY.
THE SENTENCE IMPOSED ON DEFENDANT'S CONVICTIONS WERE MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.
Defendant also raises the following issues in a supplemental, pro se brief:
THE "PAT DOWN" OF DEFENDANT UNDER THE GUISE OF A PROTECTIVE SEARCH WAS ILLEGAL AND RENDER "ALL EVIDENCE FORTH COMING" THE FRUIT OF THE POISONOUS TREE.
THE EVIDENCE RECOVERED FROM THE JANUARY 18, 2006 STOP OF DEFENDANT SHOULD HAVE BEEN SUPPRESSED. AS THE EAST ORANGE POLICE OFFICERS SHOWED NO REASON TO BELIEVE THAT THE GMC DENIALI CONTAINED NARCOTICS.
THE TRIAL COURT ERRED IN FINDING LIEUTENANT BINDI'S TESTIMONY TO BE CREDIBLE. AS THE LIEUTENANT'S TESTIMONY WAS INCONSISTENT AND CONTRADICTIVE OF THE POLICE REPORT AND TESTIMONY OF DETECTIVE HINTON ALSO OF THE EAST ORANGE POLICE DEPARTMENT.
After carefully considering the record, briefs and arguments of counsel, we are satisfied that none of these arguments have merit. We affirm defendant's convictions substantially for the reasons set forth in Judge Kennedy's written opinion.
We review a trial court's sentencing decision with deference and will affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. Cassady, 198 N.J. 165, 180 (2009); State v. O'Donnell, 117 N.J. 210, 215 (1989). In arguing that the sentence imposed was manifestly excessive, defendant does not challenge any of Judge Kennedy's findings that there were no applicable mitigating factors and that the following aggravating factors were applicable: N.J.S.A. 2C:44-1(a)(3); N.J.S.A. 2C:44-1(a)(6); and N.J.S.A. 2C:44-1(a)(9). The sole challenge to the sentence is defendant's contention that the trial court failed to articulate "adequate reasons for imposing a three year period of parole ineligibility."
Judge Kennedy stated, "I am clearly convinced that the aggravating factors preponderate over the mitigating. And that . . . the interest of justice would require a period of parole ineligibility pursuant to and as per and furtherance of the plea agreement." Under the circumstances, these comments were more than adequate.
The sentence of ten years' imprisonment with a three-year period of parole ineligibility was imposed on count two of Indictment No. 06-10-3067, which charged defendant with first- degree possession of cocaine in a quantity of five ounces or more with intent to distribute, N.J.S.A. 2C:35-5(b)(1). The statute requires the imposition of a term of imprisonment that "shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole." N.J.S.A. 2C:35-5(b)(1) (emphasis added). Therefore, the minimum period of parole ineligibility required by this statute was one-third of the ten year sentence. The argument that the imposition of a three-year period of parole ineligibility, consistent with the terms of the plea agreement, was an abuse of discretion is entirely lacking in merit.
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