On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-10-0701.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Fasciale.
Defendant was charged with second-degree possession of a controlled dangerous substance (CDS), heroin, with the intent to distribute within 500 feet of a public housing complex, N.J.S.A. 2C:35-7.1, and third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5b(3). He moved for the suppression of evidence seized during a street encounter with police. Judge Julie M. Marino conducted an evidentiary hearing and denied defendant's suppression motion.
In later proceedings before a different judge, defendant pled guilty to both counts of the indictment. At sentencing, the convictions were merged and an eight-year prison term, subject to a four-year period of parole ineligibility and a three-year period of parole supervision upon release, was imposed.
Defendant appealed. His assigned counsel presents the following arguments for our consideration:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE LACKED A REASONABLE AND ARTICULABLE BASIS TO SUSPECT THE DEFENDANT OF CRIMINAL WRONGDOING AND THERE WAS INSUFFICIENT ATTENTUATION TO REMOVE THE TAINT OF THE POLICE MISCONDUCT. MOREOVER, THE STATE FAILED TO PROVE THAT EVIDENCE SEIZED AFTER THE DEFENDANT WAS UNJUSTIFIABLY DETAINED HAD BEEN ABANDONED (Partially Raised Below).
A. The Defendant Was Seized Without Reasonable Suspicion That He Was Engaged In Criminal Activity.
B. The Taint of the Police's Unlawful Stop And Detention of the Defendant was Not Attenuated by Any Action of the Defendant.
C. The State Failed to Establish That Evidence That Constituted an Essential Element of the Offense With Which the Defendant Was Charged Was Knowingly and Voluntarily Abandoned.
II. THE SENTENCE IMPOSED ON THE DEFENDANT IS MANIFESTLY EXCESSIVE AND MUST BE REDUCED OR REMANDED FOR RESENTENCING. IN ADDITION, THE PERIOD OF POST-RELEASE SUPERVISION IS ILLEGAL AND MUST BE VACATED.
A. The Sentence is Excessive.
B. The Period of Parole Supervision Must ...