On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-10-0628.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2011
Before Judges Kestin and Newman.
Defendant, Heath Taylor, was charged in a four-count indictment with third-degree possession of a controlled dangerous substance (CDS), cocaine, with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree possession of a handgun while possessing cocaine with intent to distribute, N.J.S.A. 2C:39-4.1a. He was also charged in a criminal complaint with three disorderly persons offenses: two counts of possessing drug paraphernalia, N.J.S.A. 2C:36-2; and one count of possessing marijuana under fifty grams, N.J.S.A. 2C:35-1a(4). In addition, defendant was charged with two motor vehicle offenses, speeding and driving while under license suspension.
After defendant's motion to suppress evidence was denied, he was tried before Judge Paul W. Armstrong and a jury on three days in November 2003. Defendant did not appear in court on the final date of trial as summations were scheduled to occur; and the court, after a delay which included counsel's efforts to locate defendant, ruled that he had "waived his right to be present at [that day's] proceeding." The trial continued with summations and the judge's charge to the jury.
Following its deliberations, the jury returned a verdict finding defendant guilty of all counts charged in the indictment. The court then found defendant guilty of the three disorderly persons charges and the speeding offense, dismissing the citation for driving while suspended for lack of proof. In the light of defendant's absence, the court issued a warrant for defendant's arrest.
Within days after the trial concluded, the State moved for extended term sentencing pursuant to Rule 3:21-4(e), and N.J.S.A. 2C:43-7 and 2C:44-3a. Shortly thereafter, defendant moved for a judgment of acquittal notwithstanding the verdict or, in the alternative, a new trial.
The next proceeding in this matter occurred almost four years later, on October 4, 2007, with defendant present. As Judge Armstrong noted in the subsequent sentencing session on February 8, 2008, defendant had been convicted in Virginia in 2004 of two felony charges involving manufacture and sale of a controlled dangerous substance and possessing a firearm, and had served a sentence there before being released on the Somerset County warrant.
On October 4, 2007, Judge Armstrong considered argument on defendant's motion for a judgment of acquittal or a new trial, and denied the application for reasons stated on the record. The State noted that it had made two motions for extended-term sentencing: one for a mandatory extended term under N.J.S.A. 2C:43-6f, by reason of the Virginia drug conviction; and the other for a discretionary extended term under N.J.S.A. 2C:43-7 and 2C:44-3 in respect of the weapon crime. The judge deferred sentencing pending receipt of an updated pre-sentencing report.
At the sentencing proceeding on February 8, 2008, the court granted both extended-term motions. On the second-degree conviction for possessing a weapon while committing a CDS crime, into which the conviction for third-degree unlawful possession of a weapon had merged, defendant was sentenced to a discretionary extended twelve-year term of imprisonment with six years of parole ineligibility. On the second-degree CDS conviction, into which the third-degree conviction for possession of CDS had merged, the sentence was "a required consecutive term, extended term of six years with a three-year parole disqualifier." Fines of $250 were imposed on each of the three disorderly persons convictions. The speeding conviction drew a fine of $50 and a concurrent fifteen-day jail sentence. Appropriate penalties, fees and fund payments were also ordered, and jail-time credits of 337 days were allowed.
On appeal, defendant advances the following issues for our consideration:
THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS IN THAT THE MOTOR VEHICLE STOP LACKED PROBABLE CAUSE AND WAS BASED ON SELECTIVE ENFORCEMENT ...