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State of New Jersey v. Orette Butters

May 24, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ORETTE BUTTERS, A/K/A GARY BRERR, ROETTE BUTTERS, NASIR AKBAR AND OMAR BUTLER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-10-0704.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 14, 2012

Before Judges Axelrad, Sapp-Peterson and Ostrer.

Defendant was convicted after a jury trial of second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2), and sentenced to an extended term, N.J.S.A. 2C:43-6f, of ten years, with five years of parole ineligibility. Defendant argues on appeal the court erred in denying his motion to suppress a statement he made to police, and the State abused its discretion in seeking a mandatory extended term. We affirm.

I.

The sole witness at the July 2010 Miranda*fn1 hearing was Somerset County Narcotics Task Force Investigator Christopher Gelardi. Gelardi testified that defendant, his girlfriend Shannon Hicks, and Hicks's brother Joseph Schmidt were all arrested on September 22, 2009 after police executed a search warrant of Hicks's Somerville home. Police seized numerous vials of crack cocaine, marijuana and other items. Gelardi questioned defendant in the rear of the home, separate from the other arrestees, after orally providing Miranda warnings, and obtaining defendant's waiver of his right to remain silent. Initially, defendant denied any knowledge of the presence of drugs in the home. He then admitted that he used drugs. When pressed, he further admitted that he sometimes distributed drugs at parties and would occasionally "hook a couple people up."

Defendant and the other arrestees were transported to the Somerset County Prosecutor's office, where they were held in separate rooms. Gelardi asked defendant if he were willing to give another statement on tape, but defendant refused, so Gelardi left defendant alone in the room.

Thereafter, defendant called Gelardi over and asked him who was going to be charged. Gelardi explained that all three were likely to be, but the decision was not his to make. Defendant then stated he wanted to accept responsibility for the drugs. Gelardi explained:

A . . . And he said, well, what if I give a statement? I said, if you want to give a statement that's up to you, but before you said you didn't want to go on tape. Do you want to go on tape or do you not want to go on tape? It is up to you. He said, yeah, I want to go on tape and I want to take possession for what was found.

Gelardi denied making any promises in return for defendant's statement.

Q Okay. Did you tell him that by doing that, did you say anything to him about how that might effect the charges if he went on tape?

A I explained to him that we don't decide what the charges are. The assistant prosecutor decides what the charges are. That it's still possible that everybody might get charged or the prosecutor might say that only he gets charged. We don't make any of that decisions [sic] and just because he gives a statement or says that everything is mine doesn't mean that everybody else is just going to go home. That is not up to us.

In his taped statement, defendant confirmed that Gelardi made no promises or threats to him. Gelardi stated, "I just want to be clear that nobody's made . . . any promises to you or threats or anything like that to give a statement[.] [Y]ou decided[,] again, to provide a statement after you ...


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