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State of New Jersey v. Hassan M. Cherry

July 22, 2011


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-07-1238.

Per curiam.


Argued May 23, 2011

Before Judges Grall and LeWinn.

Defendant was indicted on numerous drug-related offenses. Following the denial of his motion to suppress, he pled guilty to one count of second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2). He was sentenced to a term of five years imprisonment subject to a twoand-a-half-year parole ineligibility period; the appropriate fines and penalties were imposed and the remaining counts of the indictment were dismissed pursuant to the plea agreement. He now appeals the denial of his motion to suppress. We affirm.

The pertinent evidence adduced at the motion hearing may be summarized as follows. While on patrol on July 11, 2008, South Amboy Police Officer Paul Noble received a dispatch to respond to a residence on Main Street "on a report of an unwanted male." Upon his arrival, he spoke to Holly Horvath, who had called in the complaint. She told Noble "that a black male who gave her the name as Hassan had approached her while she was sitting on her porch, began to threaten her, her daughter and one of her daughter's friends."

As they were speaking, Horvath told Noble that the individual was "across the street on Stevens Avenue" in an SUV; "[s]he pointed in the direction where the vehicle was still located . . . ." Noble observed what appeared to be "an SUV Range Rover type vehicle." The vehicle left the curb and began heading north on Stevens Avenue. Noble entered his vehicle and radioed all other police vehicles in the area. As he approached Stevens Avenue heading north, Noble no longer saw the vehicle. He decided to turn left on Sixth Street on the thought that the vehicle may have turned onto a side street.

As Noble was driving on Sixth Street, he observed the vehicle make a right turn directly in front of him. The officer activated his lights, made a u-turn and pulled up behind the vehicle, which then pulled over. Noble radioed his location and the car's license plate number to police headquarters. Officers Matthew Barcheski and Ted Nycz also arrived on the scene. Noble approached the vehicle and asked the driver, later identified as defendant, for his credentials; he stated that he smelled "a strong odor of marijuana coming from the vehicle."

Noble asked defendant where he had been, and he responded that he "had stopped a few blocks back . . . and asked some girls that were sitting on the porch for some directions." At that point, Noble returned to Horvath's residence to interview her further.

On cross-examination, Noble was confronted with a tape of the 911 dispatch in which he was heard saying to the dispatch officer that "they told me he went up that street."*fn1 When asked why he said that, Noble responded that he was not "aware at the time [he] said [defendant] was going up the street." He reiterated that Horvath "motioned" to him where defendant's vehicle was located. He estimated the distance between Horvath's residence and the location where he stopped defendant's vehicle was three blocks.

Barcheski testified that he also received the 911 dispatch regarding an "unwanted male" at Horvath's residence. While en route there, Noble radioed him "that the suspect vehicle [had] already left." Noble said he had the description of the vehicle and he was "going to be out with a Land Rover."

Barcheski arrived on Sixth Street to back up Noble. Nycz also arrived on the scene. Barcheski asked defendant why his car smelled of marijuana and then advised him of his Miranda*fn2 rights. Nycz conducted a search of the interior of defendant's vehicle; in addition to marijuana, he found a plastic bag containing twenty-two packets of suspected cocaine.

At the conclusion of the testimony the judge rendered a decision from the bench. The judge found that Noble's testimony that he saw and followed defendant's vehicle was credible. Noting that Horvath either "pointed across the street or pointed out the vehicle," the judge found that "[a]s the officer observed the vehicle he saw it pull away, . . . saw the direction it went . . . . He described the . . . vehicle with sufficient specificity . . . [and] when he pulled out to ...

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