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State of New Jersey v. Eugene I. Kelly

January 31, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EUGENE I. KELLY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-04-0953D.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 23, 2011

Before Judges A. A. Rodriguez and Grall.

Defendant, Eugene I. Kelly, appeals from his convictions following a jury trial for second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7; and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Judge Bernard E. DeLury, Jr. granted the State's motion to impose an extended term, merged the convictions and imposed an extended sixteen-year term with an eight-year minimum term. We affirm.

Prior to trial, defendant moved to suppress evidence (the weapon). Following an evidentiary hearing, Judge Michael A. Donio denied the motion. Subsequently, pursuant to an agreement with the State, defendant entered a guilty plea to third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Upon the condition that defendant waived his right to appeal, pursuant to Rule 3:9-3(d), the State agreed to dismiss related second-degree charges and to recommend that any custodial sentence not exceed five years. The plea was entered before Judge DeLury.

Prior to sentencing, defendant moved pro se to withdraw his guilty plea. Judge DeLury denied defendant's motion and stated to defendant:

THE COURT: You have 45 days from today's date to appeal. If you fail to do so, you'll lose that right. [If] you had a good reason for your failure, then the Court would give you 30 more days. After that, if you don't appeal, you'll lose your right to appeal. I'd also point out to you, sir, that as a part of the plea bargain, that the Court is now enforcing and sentencing you upon, you had indicated that you were going to waive your right to appeal. You always have your right to appeal, but if you should choose to exercise it, then the State can withdraw from this guilty plea pursuant to the rule and then reinstate the dismissed charges against you and proceed along the prosecution's path to trial. Do you understand your appellate rights, sir?

[DEFENDANT]: Yes, sir.

Judge DeLury imposed a five-year term in accordance with the plea agreement.

Despite the waiver of appeal provision of the plea agreement, defendant moved pro se to appeal his conviction. The State moved to annul the plea agreement. Judge DeLury granted the State's motion, vacated defendant's conviction and restored all charges. Defendant then withdrew his appeal. However, he moved for reconsideration of his motion to suppress, which Judge DeLury denied. The matter proceeded to trial. Defendant was convicted.

On appeal, defendant contends that:

THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS EVIDENCE WHERE THE BASIS FOR THE TERRY STOP WAS THAT [DEFENDANT] WAS SWAYING AS HE SPOKE ON A CELLULAR PHONE AT 2:30 A.M. IN FRONT OF A MULTI-DWELLING BUILDING WHERE HE HAPPENED TO LIVE, AND WHEN [DEFENDANT] TOLD OFFICER GORMAN THAT HE WAS JUST USING HIS PHONE, HIS WORDS SOUNDED SLURRED. U.S. CONST., AMENDS, IV & XIV, N.J. CONST., ART. I, PARA. 7.

In a pro se supplemental brief, defendant contends:

[HE] WAS UNLAWFULLY STOPPED AND SEIZED BY POLICE AND THE EVIDENCE FOUND ON DEFENDANT WAS THE FRUIT OF ...


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