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State of New Jersey v. Daniel J. Sussman

July 19, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANIEL J. SUSSMAN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-10-1102.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 1, 2011

Before Judges Wefing and Baxter.

Tried to a jury, defendant was convicted of unlawful possession of a handgun, N.J.S.A. 2C:39-5b. The trial court sentenced defendant to five years in prison, with a three-year period of parole ineligibility. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

In the early evening of June 29, 2008, Officer Michael Ekelburg of the Burlington Township Police Department saw defendant sitting side saddle on an all-terrain vehicle (ATV), using his feet to move the ATV across Route 130 South, which contains three lanes of traffic. He was crossing the roadway in the middle of the block and at an angle. Traffic on Route 130 was slowing down so as not to hit the defendant and ATV.

The officer went up to Sussman after defendant had successfully navigated his way across the road. The ATV did not display any registration, plates or decal, and the officer asked defendant to whom it belonged; he replied that it was his father's, and he was going to call his father. Defendant then said that it belonged to him. The officer asked for proof of ownership, but defendant had none with him and began to call relatives to ask them to look for it. The officer then asked if defendant knew where on the ATV the serial number was located, and defendant said he did not. The officer inspected the entire frame but could not locate a serial number. The officer then told defendant that he would have to impound the ATV until defendant produced proof of ownership. Defendant said he would walk to his nearby home, get the necessary proof and bring it to the police station. He then left.

Officer Ekelburg called for assistance to transport the ATV to the police station. While he was waiting, he continued to inspect the ATV in search of a serial number. He noticed that under the seat was a latch that was unlocked. He opened the latch, which released the seat, exposing a compartment that contained both the vehicle's battery and a loaded .38 caliber handgun. Defendant was charged with illegal possession of the handgun.

Prior to his trial getting underway, Sussman filed a motion to suppress. Officer Ekelburg was the only witness at the motion. After hearing his testimony, and the argument of counsel, the trial court denied the motion. At trial, the State presented two witnesses - Officer Ekelburg and Randall Toth.

Mr. Toth qualified as an expert in firearms and testified that he had examined the weapon found in the ATV and that it was an operable firearm. Defendant did not testify and presented no witnesses.

On appeal, defendant raises the following contentions:

POINT I

BECAUSE THE COURT'S DENIAL OF THE MOTION TO SUPPRESS EVIDENCE WAS BASED IN PART ON TESTIMONY THAT SHOULD HAVE BEEN EXCLUDED UNDER PRINCIPLES OF ...


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