On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-08-2670.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2010
Before Judges C.L. Miniman and LeWinn.
Defendant was indicted on three third-degree narcotics-related offenses. Following the denial of his motion to suppress, defendant negotiated a plea agreement whereby he pled guilty to third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5 and -7; the State recommended a maximum sentence of four years with a two-year parole ineligibility period. Defendant was subsequently sentenced in accordance with the plea agreement. He now appeals, challenging the denial of his motion to suppress and contending that his sentence is excessive. We affirm the denial of defendant's motion to suppress and the length of his sentence. We remand for the purpose of allowing defendant to file a motion to modify his parole ineligibility period pursuant to the recent amendment to N.J.S.A. 2C:35-7.
The pertinent factual background may be summarized as follows. Prior to the hearing date on defendant's motion to suppress, counsel advised the judge that defendant "would just ask to make legal arguments as to the suppression . . . motion that's been filed[,]" as there was "no factual dispute." Concurring that there was no factual dispute, the judge stated: "I don't believe that we need an evidentiary hearing. It's really based on whether it was permissible or not." Counsel responded: "yes Your Honor[,] that's correct."
At the outset of the motion hearing, the judge recited the facts to which counsel had stipulated:
On May 7, 2007, officers of the . . . Newark Police Department were on patrol in the area of South Orange Avenue in Newark. The purpose of the patrol was to address drug complaints in the area.
During the patrol, they noticed a group of individuals obstructing a public passageway in front of 842 South Orange Avenue. The officers, noticing the scene, stopped their vehicle and approached the crowd. Upon approaching the group, the officer observed an individual with . . . defendant . . . sitting in the front passenger side seat of a parked Mercury Cougar.
When the defendant noticed the officers approaching, the defendant concealed or appeared to conceal an unknown object and placed it underneath his seat. And these are based upon the observations of the officers. The officers ordered the defendant out of his vehicle; however, the defendant did not comply, stating he was handicapped.
The officers, at that point, opened the door to the vehicle where they then noticed a clear plastic bag of suspected cocaine on the side of the seat. Subsequent to this discovery, the defendant was placed under arrest.
After reviewing the controlling legal principles, the judge concluded that, "[b]ased upon the totality of the circumstances, it was reasonable for the officers to make inquiry of the defendant and to further make a request of him to step out of the vehicle." When defendant asserted that he was handicapped, the judge found that "it was reasonable for the officers to open his car door based upon the public interest and police patrolling, not knowing if there were weapons or otherwise [sic] within the vehicle being maintained by the . . . defendant. . . . And once they opened the door, the evidence was in plain view."
At sentencing, the judge noted that defendant had six prior indictable convictions, four of which were for narcotics-related offenses. The judge found three aggravating factors: number three, the risk that defendant will commit another offense; number six, the extent of defendant's prior criminal record; and number nine, the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(3), (6) and (9). The judge found no mitigating factors applicable.
Finding that the aggravating factors "preponderate over any mitigating factors," the judge sentenced defendant to a term of four years, and imposed a two-year parole ...