On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-04-0329.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2011
Before Judges Payne and Simonelli.
Following the denial of his motion to suppress, defendant Don A. Sampler, Jr. entered an open guilty plea to second-degree conspiracy to possess with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:5-2, and first-degree possession of five ounces or more of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(1). Defendant was sentenced to a thirteen-year term of imprisonment with five years of parole ineligibility and five years of post-release parole supervision. On appeal, defendant raises the following arguments:
THE EVIDENCE FOUND ON THE DEFENDANT'S PERSON SHOULD HAVE BEEN SUPPRESSED AS THE FRUIT OF THE WARRANTLESS SEARCH OF THE CAR.
IN LIGHT OF THE CIRCUMSTANCES OF THE CASE AND THE DEFENDANT'S CHARACTER, THE SENTENCE IMPOSED ON HIM WAS EXCESSIVE AND MUST BE REDUCED. IN ADDITION, THE DISPARITY BETWEEN DEFENDANT'S SENTENCE AND THAT OF HIS MORE CULPABLE CO-DEFENDANT REQUIRES A REDUCTION OF SENTENCE UNDER STATE v. ROACH.
A. THE SENTENCE WAS EXCESSIVE.
B. IN LIGHT OF THEIR SIGNIFICANT INDIVIDUAL DIFFERENCES, DEFENDANT'S SENTENCE IS UNFAIRLY DISPROPORTIONATE TO THAT WHICH THE DRUG KING-PIN RECEIVED.
We affirm defendant's conviction, and reverse his sentence and remand for re-sentencing.
The record reveals the following facts. In January 2006, the Somerset County Prosecutor's Office Organized Crime and Narcotics Task Force Unit (Task Force) began investigating crack and powder cocaine distribution by Dwayne Austin in Somerset and Union counties. As part of the investigation, the Task Force obtained a communication data warrant authorizing the wire and electronic interception and monitoring of all incoming and outgoing calls for two of Austin's cell phones. Task Force detectives also had made numerous controlled buys of cocaine from Austin.
During several intercepted phone calls between defendant and Austin on March 3, 2006, the detectives heard defendant make arrangements to meet with Austin and purchase four ounces of cocaine from him for $3200. They also heard defendant make arrangements to meet with Austin and purchase seven ounces for $5600 during several intercepted calls on March 16, 2006. Detectives conducted surveillance of ...