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State of New Jersey v. Marlon Simon

May 2, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARLON SIMON, A/K/A KEVIN ROBINSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-04-00726.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 14, 2011

Before Judges Cuff and Waugh.

Following denial of his motion to suppress evidence, defendant pled guilty to count three of a six-count indictment: third degree possession of a controlled dangerous substance (CDS) within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7. The judge imposed a six-year term of imprisonment subject to a three-year period of parole ineligibility. The judge also imposed the appropriate fines, penalties and assessments.

On appeal, defendant raises the following argument:

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO SUP[P]RESS EVIDENCE BECAUSE THE FACTS OF THIS CASE MEET NEITHER THE SEARCH INCIDENT TO ARREST NOR THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT.

We affirm in part and reverse in part.

On January 8, 2006, around 9 p.m., Sergeant John Gillen, a twenty-eight year veteran of the Jersey City Police Department and a ten-year veteran of the Narcotics Squad, received a telephone call from a reliable informant. Gillen learned that a delivery of cocaine in $10 vials would occur at a tavern on Lembeck Avenue. According to the informant, an unidentified person at the tavern would place a telephone call and a black male, known as Marlon, would respond with the cocaine. Marlon would be driving either a black Cadillac with tinted windows and "fancy wheels" or a beige four-door Buick Century.

Based on this information, Gillen established surveillance with perimeter units at the tavern. Officer Michael Burgess and Detectives Matos and Marrero were involved in the surveillance operation. Two other officers, Goodman and Lugo, may also have been involved. All were in plain clothes. Gillen observed the front door of the tavern, which faced a corner illuminated by street lights, from a squad car parked fifty to one hundred feet from the front door.

At approximately 9:20 p.m., Gillen observed co-defendant Thomas Thompson open the front door of the tavern and stand on the front steps. Thompson placed two or three telephone calls. Approximately ten minutes later, Gillen observed a beige four-door Buick Century stop at the corner. Thompson entered the front passenger seat of the car and the Buick pulled away from the corner. Gillen notified the surveillance units of the arrival and departure of the beige Buick, and followed the Buick keeping approximately ten car lengths between the cars. Burgess and Matos were in another vehicle near Romar Avenue; Marrero followed Gillen's vehicle.

Gillen saw the Buick stop on Lembeck Avenue near Our Lady of Mercy School. A white male entered the back passenger side seat of the Buick. The car turned left on Pearsall Avenue, drove to mid-block and stopped. Burgess observed the white male in the back passenger side seat leave the Buick and run into an alleyway. Gillen made the same observation.

Gillen directed the other vehicles to stop the Buick at the corner of Romar and Pearsall. Matos and Marrero pulled in front of the Buick; Gillen pulled up behind the Buick. As they did so, the officers exited their vehicles and announced they were police. Gillen approached the passenger side of the Buick; Burgess approached the front passenger door; Matos approached the front of the Buick; and Marrero the driver's side door. Observing movement inside the Buick, Burgess opened the front passenger door. Using his flashlight, Burgess observed Thompson in the front seat clutching vials with green tops in his hand. Burgess suspected the vials contained cocaine, informed the other officers Thompson was "positive," and arrested Thompson. As he did so, Burgess advised him of his Miranda*fn1 rights, and recovered ten green-capped clear vials containing the suspected cocaine from Thompson.

Marrero removed defendant from the driver's seat of the Buick and placed him against the back passenger door. Gillen walked from the front of the Buick to the driver's side of the Buick, looked inside and then reached under the front seat. There, Gillen found a plastic bag containing four bundles of thirty-nine vials containing a white substance, which he suspected was cocaine. The bundles were wrapped in elastic bands. At that point, Gillen ordered Marrero to place defendant in handcuffs and advise him of his Miranda rights. Gillen ...


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