On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-12-03019.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Messano.
An Atlantic County grand jury indicted defendant Shawn T. McGraw for third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35- 5(b)(2) (count two), second-degree conspiracy to possess cocaine with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(b)(2) (count three); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four); and second-degree possession of cocaine with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count five).
After defendant's motion to suppress the cocaine seized from his apartment was denied, he entered a negotiated plea to count two on June 1, 2009. In accordance with the plea agreement, defendant was sentenced to a seven-year prison term with three years of parole ineligibility.
On appeal, defendant raises the following points:
THE AMENDED SEARCH WARRANT WAS DEFECTIVE FOR LACK OF A DATE OR TIME OF ISSUANCE WHEN AMENDED BY TELEPHONE AND FAX.
THE SENTENCE IMPOSED BY THE COURT WAS MANIFESTLY EXCESSIVE.
After reviewing the record in light of the applicable legal standards, we affirm the order denying defendant's motion to suppress and his sentence.
The following facts were adduced during the suppression hearing. On September 18, 2008, Detective Jamie Moore of the Atlantic City Police Department personally appeared before a Superior Court judge and obtained a warrant to search defendant's apartment for cocaine and other controlled dangerous substances. The warrant, which was signed by the judge at 1:50 p.m., had a checkmark next to the following method of execution: "By knocking and announcing the identity and purpose of law enforcement officers."
Moore testified that the original search warrant was "verbally approved as a no-knock." However, on September 26, 2008, when she realized that the warrant required the police to "knock and announce," she telephoned the judge and he said: "'You're absolutely right. It does fit the parameters for a no-knock. I will amend it.'" The judge then crossed out the knock-and-announce requirement on the original warrant and wrote: "'No knock' authorized on 9/18/08. The court ...