October 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RYAN O. LEGALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-04-0284.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Fisher and Nugent.
This is defendant Ryan Legall's second direct appeal from a judgment of conviction of a third-degree drug offense, a disorderly persons offense, and two motor vehicle offenses, as well as from the mandatory extended term sentence the court imposed on the drug offense. Because our judicial system contemplates only one direct appeal as of right to a court of general appellate jurisdiction, we dismiss this appeal.
In the early morning hours of March 24, 2006, Bernards Township police officers arrested defendant and his passenger, both of whom had been sleeping in defendant's car. Before falling asleep, defendant had backed into a parking space at a gas station, leaving his headlights on. Spotting the headlights and noticing that the car had no front license plate, a patrol officer stopped, approached the car, and smelled the odor of marijuana. Using his flashlight, the officer looked into the car and saw marijuana on the passenger's shirt and front seat. He radioed for assistance and two other officers soon arrived. The officers woke the occupants, removed them, searched the car, and seized marijuana and a nearly empty bottle of Hennessy cognac. While defendant was sitting in the back of a patrol car, an officer saw him attempt to move something with his feet. The officer seized the item which proved to be a zip-lock bag of cocaine.
The police charged defendant with the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2; and two motor vehicle offenses, possession of a controlled dangerous substance (CDS) in a motor vehicle, N.J.S.A. 39:4- 49.1, and possession of an open container of alcohol, N.J.S.A. 39:4-51b. On April 19, 2006, a Somerset County grand jury charged defendant with second-degree possession with intent to distribute a CDS, cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count one); and third-degree possession with intent to distribute a CDS, marijuana, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count two).
Defendant subsequently filed a suppression motion, which the trial court denied. On July 20, 2009, a jury acquitted defendant on count one and convicted him on count two. Immediately following the jury verdict, the trial court, sitting as a municipal court judge pursuant to Rule 3:15-3, convicted defendant of the disorderly persons and motor vehicle offenses.
At the sentencing proceeding, the court granted the State's motion to have defendant declared eligible for an extended term of imprisonment pursuant to N.J.S.A. 2C:43-6(f) and N.J.S.A. 2C:43-7(c). The court sentenced defendant on the third-degree drug offense to a term of six years imprisonment with three years of parole ineligibility and on the disorderly persons offense to a concurrent six-month term of imprisonment. The court also imposed appropriate fees and penalties, and remanded the motor vehicle convictions to municipal court for sentencing.
On December 9, 2009, defendant appealed from the judgment of conviction. According to his Criminal Case Information Statement, the sole issue he raised on appeal was that "[t]he trial court erred in finding Mr. Legall to be extended term eligible based on his record." His appeal was placed on the Excessive Sentencing Oral Argument (ESOA) calendar and argued on April 13, 2010. We affirmed the sentence in an order dated April 16, 2010. On June 22, 2010, defendant filed this appeal. Defendant raises the following issues:
POINT I - THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.
POINT II - THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION FOR AN EXTENDED TERM OF IMPRISONMENT.
POINT III - THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S PRIOR CONVICTION COULD BE ADMITTED TO IMPEACH THE DEFENDANT SHOULD THE DEFENDANT EXERCISE HIS RIGHT TO TESTIFY IN HIS OWN DEFENSE.
We decline to address these issues because defendant did not raise them in his first direct appeal and he is not entitled to file another direct appeal.
The New Jersey Constitution provides that "[a]ppeals may be taken to the Appellate Division of the Superior Court from the law and chancery divisions of the Superior Court and in such other causes as may be provided by law." N.J. Const. art. VI, § 5, ¶ 2. Our judicial system "contemplates one appeal as of right to a court of general appellate jurisdiction." Midler v. Heinowitz, 10 N.J. 123, 129 (1952); State v. Fletcher, 174 N.J. Super. 609, 614 (App. Div. 1980), certif. denied, 89 N.J. 444 (1982). See also In re Application of LiVolsi, 85 N.J. 576, 592 n.17 (1981). The ESOA Program confers the New Jersey constitutionally guaranteed right to appeal. See State v. Bianco, 103 N.J. 383, 391-93 (1986).
Defendant was afforded his constitutional right to one appeal when he filed his first appeal. Defendant cites no authority for the proposition that he is entitled to a second direct appeal; in fact, defendant makes no mention of the first appeal in his appellate brief or anywhere in the appellate record. The first reference to defendant's first appeal appears in the State's brief. Defendant is not entitled to a second appeal.
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