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State of New Jersey v. Gregory Mcclary

July 20, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GREGORY MCCLARY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. 08-07-1336.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 17, 2011

Before Judges Wefing and Payne.

Tried to a jury, defendant was convicted of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), a crime of the third degree; possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1), 5b(3), a crime of the third degree; possession of a controlled dangerous substance with intent to distribute in a school zone, N.J.S.A. 2C:35-7, a crime of the third degree; and possession of a controlled dangerous substance with intent to distribute within five hundred feet of a public facility, N.J.S.A. 2C:35-7.1, a crime of the second degree.*fn1 At sentencing, after granting the State's motion for an extended term, the trial court merged the first two convictions into the third and sentenced defendant to two concurrent terms of eight years in prison, with a four-year period of parole ineligibility. Defendant has appealed his convictions and sentence.

He raises the following contentions on appeal:

POINT I DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, AS THE TERRY STOP WAS NOT BASED ON AN OBJECTIVELY REASONABLE SUSPICION THAT DEFENDANT WAS ARMED AND DANGEROUS POINT II BECAUSE THERE WAS NO PROOF THAT DEFENDANT POSSESSED THE DRUGS WITHIN THE SCHOOL AND HOUSING ZONES, HIS MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED POINT III BECAUSE THE PROSECUTOR'S COMMENT DURING SUMMATION IMPROPERLY ALLUDED TO DEFENDANT'S DECISION NOT TO TESTIFY, HIS MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED POINT IV THE COURT BELOW ERRED BY FAILING TO MERGE DEFENDANT'S SCHOOL ZONE CONVICTION WITH THE PUBLIC HOUSING CONVICTION AND BY IMPOSING FEES AND PENALTIES ON CONVICTIONS THAT MERGED POINT V DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.

On the night of April 8, 2008, Officer Steven Collier of the Jersey City Police Department was on patrol with his partner, Officer Cartihana. They were in plain clothes and driving an unmarked vehicle. They saw an older car pull out at a high rate of speed from the Duncan Avenue housing complex on Duncan Avenue and turn south onto Route 1 and 9. They intended to pull the car over based upon the speed at which it left the housing complex, but there was no safe place to do so on Routes 1 and 9 so they followed the car. Officer Collier radioed in the car's license plate number; there was no report of the vehicle being stolen. When the car reached the intersection with Communipaw Avenue, it made an illegal left turn onto Communipaw. Because of construction activity in the area, again there was no safe place to pull the car over. The car then turned onto Mallory Avenue, which Officer Collier described as being inadequately lit. When the car turned onto Claremont Avenue where the lighting was better, the officers turned on the lights of their vehicle, signaling the car to stop, which it did. As Office Collier got out of his car, he saw the rear-seat passenger, later identified as defendant, move as if to put something in his pocket or underneath him.

Officer Collier approached the car on the driver's side, Officer Cartihana on the passenger side. There were three occupants in the car, the driver, a front-seat passenger, and defendant sitting in the rear. As Officer Collier was speaking to the driver, and reviewing the paperwork the driver produced, he again saw the rear seat passenger make a movement with his left hand. Asked what was going through his mind when he saw this, Officer Collier responded, "He's trying to conceal something and possibly a weapon. . . . For my safety as well as his safety and everybody involved we were afraid it was going to be a weapon."

Officer Collier ordered defendant out of the car and patted him down. Officer Collier felt a bulge in the front pocket of the hoodie defendant was wearing and asked defendant if he had a weapon. Defendant said he did not, that it was drugs. He produced a plastic baggie with approximately fifty vials containing cocaine.

I

Prior to defendant's trial getting under way, he filed a motion to suppress, at which Officer Collier was the only witness. After hearing the officer testify, and the argument of counsel, the trial court denied defendant's motion. On appeal, defendant argues the trial court's decision was in error. We disagree.

Both parties analyze the issue in terms of whether Officer

Collier's actions were permissible within the ...


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