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State v. McCleod

October 22, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL D. MCCLEOD, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-05-0408.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 5, 2010

Before Judges Skillman and Yannotti.

Defendant Michael McCleod was tried before a jury and found guilty of third-degree distribution of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and third-degree conspiracy to distribute a CDS, contrary to N.J.S.A. 2C:5-2. The trial court also found defendant guilty of possession of marijuana in an amount less that fifty grams, a disorderly persons offense, contrary to N.J.S.A. 2C:35-10(a)(4). Defendant appeals from his conviction and the sentences imposed. For the reasons that follow, we affirm.

At the trial, the State presented evidence establishing that in March 2006, detectives and officers in the Somerset County Prosecutor's Office (SCPO) were engaged in a narcotics investigation of co-defendant Kristina Gwiazdowski. On March 24, 2006, an undercover officer arranged to purchase eleven bags of cocaine from Gwiazdowski for $600. The officer had purchased drugs from Gwiazdowski on two prior occasions. Gwiazdowski and her friend, Erin Santora (Santora), met the officer at a convenience store in Somerville.

Gwiazdowski and Santora then drove to another location in Somerville, where the officer provided Gwiazdowski with $600 in marked currency he had obtained from the SCPO. Gwiazdowski and Santora went to the house on Southside Avenue in Somerville where defendant resided. They entered through the side door and went down into the basement, where Santora introduced Gwiazdowski to defendant. Gwiazdowski gave defendant money, and he gave her the cocaine. Gwiazdowski and Santora left the house, and the police apprehended them as they were driving away.

The officers thereafter applied to the Law Division for a search warrant. The court issued a warrant allowing the officers to search the house on Southside Avenue, with the exception of the bedroom of the woman who owned the house. The officers then executed the warrant. They found defendant in the basement, where his bedroom was located. He was in possession of some of the marked currency that the undercover officer had provided to Gwiazdowski. The officers also found marijuana on defendant's person and in a dresser in his bedroom.

At sentencing, the trial court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f). The court merged the indictable offenses and sentenced defendant to eight years of incarceration with a three-year period of parole ineligibility. The court imposed appropriate fines and penalties. The court also imposed a $250 fine for the disorderly persons offense. This appeal followed.

Defendant raises the following issues for our consideration:

I. THE SEARCH WARRANT WAS CONSTITUTIONALLY DEFECTIVE

a. BECAUSE THE STATE FAILED TO ESTABLISH A SUBSTANTIAL BASIS FOR A FINDING OF PROBABLE CAUSE IN ITS APPLICATION FOR THE SEARCH WARRANT, IT WAS HARMFUL ERROR TO DENY DEFENDANT'S MOTION TO SUPPRESS (Raised Below)

b. BECAUSE THE SEARCH WARRANT FAILED TO TREAT A SINGLE UNIT IN A MULTIPLE UNIT STRUCTURE AS A SEPARATE RESIDENCE, THE WARRANT WAS CONSTITUTIONALLY DEFECTIVE AND IT WAS PLAIN ERROR TO DENY DEFENDANT'S MOTION TO SUPPRESS (Not Raised Below)

II. THE TRIAL COURT ERRED IN APPLYING THE PROTECTIONS OF [STATE v. BRUNSON, 132 N.J. 377 (1993)] TO [THE] STATE'S WITNESS ...


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