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State v. Gonzalez

October 22, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICARDO GONZALEZ,*FN1 DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-07-1656.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2010

Before Judges Skillman and Yannotti.

Defendant Ricardo Gonzalez pled guilty to second-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b), and was sentenced to three years of incarceration with a one-year period of parole ineligibility. Defendant appeals from the judgment of conviction dated April 3, 2009. We affirm.

Defendant was charged, along with Dave P. DaSilva (DaSilva) and Michael T. Clouse (Clouse), with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one); fourth-degree possession of a prohibited device, specifically hollow point bullets, N.J.S.A. 2C:39-3(f) (count two); and third-degree receiving stolen property, N.J.S.A. 2D:20-7(a) (count three). Defendant also was charged with the possession of fifty grams or less of marijuana, which is a disorderly person offense, N.J.S.A. 2C:35-10(a)(4). Defendant, DaSilva and Clouse moved to suppress the evidence obtained in the search of defendant's motor vehicle. Following an evidentiary hearing, the court denied the motion.

The State thereafter filed a motion pursuant to N.J.S.A. 2C:43-6.2 to reduce the required mandatory minimum period of parole ineligibility on count one to one year. On January 22, 2009, the court granted the State's motion. On that same day, defendant pled guilty to count one.

In exchange for defendant's guilty plea, the State agreed to recommend a three-year prison term with a one-year period of parole ineligibility. The State also agreed to the dismissal of the other charges against defendant and all of the charges against DaSilva and Clouse.

On April 3, 2009, the trial court sentenced defendant to three years of incarceration with one year of parole ineligibility. The court dismissed the other charges in the indictment against defendant and the charges against his co-defendants. The court also imposed appropriate penalties and assessments. This appeal followed.

Defendant raises the following arguments for our consideration:

THE STATE FAILED TO SATISFY ITS BURDEN OF PROVING THAT THE WARRANTLESS SEARCH OF THE CAR WAS JUSTIFIED BY THE SEARCH INCIDENT TO ARREST EXCEPTION OR THE AUTOMOBILE EXCEPTION. THUS, THE FRUITS OF THAT UNCONSTITUTIONAL SEARCH SHOULD HAVE BEEN SUPPRESSED.

A. Search Incident to Arrest Exception.

B. Search Incident to Automobile Exception.

We briefly summarize the testimony presented at the suppression hearing. On May 10, 2008, Officer James McCue (McCue) of the Sea Bright Police Department (SBPD) was on duty, working the 8:00 a.m. to 4:00 p.m. shift. McCue was one of two SBPD officers on duty at the time. They had responsibility for covering the entire municipality. At ...


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