On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 07-05-1112, 06-06-1397 and 06-01-0063.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010 -- Decided
Before Judges R. B. Coleman and Lihotz.
In this appeal, defendant Sean Forehand challenges the denial of his motion to suppress evidence following which he entered pleas of guilty to certain charges contained in three separate indictments, in exchange for the State's recommendation of the dismissal of certain remaining counts and a sentence for no more than five years in prison with a three-year period of parole ineligibility. We reject defendant's challenge to the denial of his motion and affirm.
On January 11, 2006, a Monmouth County Grand Jury returned Indictment Number 06-01-0063, charging defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3) (count two); third-degree possession of CDS on or within 1000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7 (count three); third-degree attempted distribution of CDS, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:35-5b(3) (count four); and third-degree attempted distribution of CDS on or within 1000 feet of school property, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:35-7 (count five).
On June 28, 2006, a Monmouth County Grand Jury returned Indictment Number 06-06-1397, charging defendant with fourth-degree contempt, N.J.S.A. 2C:29-9b (counts one and four); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1); and third-degree terroristic threats, N.J.S.A. 2C:12-3b (count three).
On May 9, 2007, a Monmouth County Grand jury returned Indictment Number 07-05-1112, charging defendant with third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count one); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count two); fourth-degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5d (count three); second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b(1) (count four); and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7a(1) (count five). Tykeyia N. Jackson was similarly charged in counts one, two, and three of this indictment.
On July 12, 2007, a hearing was held before Judge Paul F. Chaiet, on defendant's motion to suppress evidence seized without a search warrant in connection with Indictment Number 07-05-1112. The sole witness at the hearing on the motion was Patrolman Kevin Redmond of the Ocean Township Police Department. During the motion, the court also viewed the mobile video recorder videotape which had a "sound malfunction." Based on the evidence considered, Judge Chaiet denied the suppression in part and granted it in part.
Thereafter, defendant entered into the plea agreement with the State which he now contests. He agreed to enter a plea of guilty to count three of Indictment No. 06-01-0063, N.J.S.A. 2C:35-10a(1), third-degree possession of a CDS on or within 1000 feet of school property with intent to distribute; count two of Indictment No. 07-05-1112, N.J.S.A. 2C:39-5b, third-degree possession of a weapon for an unlawful purpose; and count one of Indictment No. 06-06-1397, N.J.S.A. 2C:39-7a(1), fourth-degree contempt. On November 30, 2007, defendant appeared before Judge Edward M. Neafsey for sentencing, and was sentenced in accordance with the plea agreement to imprisonment for a five-year term with three years parole ineligibility on count three of Indictment Number 06-01-0063, nine months on count one of Indictment Number 06-06-1397, and four years on count two of Indictment Number 07-05-1112. All prison sentences were ordered to run concurrent and all other counts of the several indictments were dismissed. Judge Neafsey imposed applicable mandatory fines and penalties. On appeal, defendant's sole contention is that the motion judge erred in denying his motion to suppress.
These are the facts developed at the hearing on the motion to suppress. At approximately 2:30 a.m. on May 3, 2006, Patrolman Kevin Redmond of the Ocean Township Police Department was on patrol on Norwood Avenue. At that time, Redmond observed a white Nissan Maxima traveling southbound with a rear "license plate light out," a violation of the New Jersey Motor Vehicle Code. Based on that observed violation, Redmond conducted a motor vehicle stop and approached the driver's side of the vehicle. There were two occupants in the vehicle, a male driver, eventually identified as defendant, and a female passenger, later identified as Tykeyia Jackson. Defendant had binoculars hanging from his neck. Jackson had grocery bags and a digital camera on her lap. After Redmond asked defendant for his driver's license, registration and insurance documents for the vehicle, defendant replied that he did not have a license and that he could not produce the vehicle's documents because he borrowed the car from a friend and did not know where the registration and insurance card were located. Redmond also asked Jackson for her license; she said she did not have a valid license.
Defendant initially identified himself to Redmond as James
K. Forehand, and gave his address and birth date. Redmond returned to his patrol vehicle and called headquarters to run a check of the information he had been given. Redmond also ran a check of the same information in his patrol vehicle. At this point, Patrolman Timothy Maycon of the Ocean Township Police Department arrived at the location of the stop as backup. With backup present, Redmond asked defendant to exit the vehicle and stand behind it. From the computer check, Redmond learned that James Forehand had a "NYC" tattoo on his left arm. Defendant did not have this tattoo, but instead he had a tattoo of the Grim Reaper on his arm. Police dispatch subsequently informed Redmond that outstanding summonses had been issued to a driver of the same ...