On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-07-01271.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 10, 2011
Before Judges J. N. Harris and Fasciale.
After his motion to suppress physical evidence was denied, defendant Rashad Abdurraafi entered a guilty plea to a violation of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). The sentencing judge imposed a term of seven years incarceration, with five years of parole ineligibility. Abdurraafi now appeals, arguing the following:
POINT I: THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE HANDGUN SEIZED FROM THE CEILING PANEL OF DEFENDANT'S MOTOR VEHICLE AS IT WAS THE RESULT OF AN UNLAWFUL SEARCH UNJUSTIFIABLE WITHIN ANY RECOGNIZED EXCEPTION TO THE WARRANT REQUIREMENT. Abdurraafi's pro se supplemental brief presents the following additional points:
POINT I: DEFENDANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED AS A RESULT OF THE JUDICIAL REQUIREMENT NOT BEING MET IN THE ISSUANCE OF THE INSTANT ARREST WARRANT. THEREBY, FAILING TO ESTABLISH PROBABLE CAUSE AS MANDATED & REQUIRED BY NEW JERSEY RULES OF COURT, R. 3:3-3 (A) (1) & NEW JERSEY'S CONSTITUTION ARTICLE I & VII. UNITED STATES CONST. AMEND IV AND XIV.
POINT II: THE STATE HAS VIOLATED THE SEPERATION [SIC] OF POWERS DOCTRINE BY ALLOWING THE ARRESTING OFFICER'S ISSUANCE OF THE INSTANT ARREST WARRANT. THIS VIOLATION IS CLEAR IN LIGHT OF THE FACT THAT THE NEW JERSEY CONSTITUTION DOES NOT HAVE ANY PROVISIONS THAT GRANTS THAT AUTHORITY TO AN EXECUTIVE OFFICER. NEW JERSEY CONSTITUTION ARTICLE I & III.
POINT III: THE REMEDY FOR A DEFECTIVE ARREST IS SUPPRESSION OF THE EVIDENCE THAT WAS SEIZED AS PART OF THE ARREST, THOUGH IT DOES NOT INVALIDATE THE PROSECUTION'S ABILITY TO CONTINUE PROSECUTION.
POINT IV: DEFENDANT'S ASSIGNED COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO (1) INVESTIGATE THE FACTS SURROUNDING THE ISSUANCE OF THE ARREST WARRANT & TO MOVE FOR A SUPPRESSION OF EVIDENCE AND DISMISSAL OF THE CASE ON THE GROUNDS OF AN ILLEGALLY ISSUED ARREST WARRANT. UNITED STATES CONST. AMEND. VI & XIV; NEW JERSEY CONST. ART. I, PARA. 10.
On March 11, 2009, the dispatch unit of the Jersey City Police Department placed a call over the police radio to all units to be on the lookout for a white Astrovan in which the driver was carrying a gun. Uniformed police officers Tarance Bryant and Maria DeCristofaro were on midnight duty at the time, assigned to patrol the East District, when they spotted the Astrovan in the area of Florence and Montgomery streets. After observing the Astrovan driving "somewhat erratically" and crossing over the double yellow lines, the police officers initiated a stop of the motor vehicle.
While Officer Bryant was collecting the driving credentials of Abdurraafi, Officer DeCristofaro approached the passenger side of the Astrovan and illuminated the inside with her flashlight. She immediately observed a damaged ceiling panel inside, and what appeared to be "a gun handle sticking out of the panel." Officer DeCristofaro made a hand gesture to Officer Bryant alerting him to her find, whereupon Officer Bryant asked Abdurraafi to step out of the Astrovan. Upon his exit from ...