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State of New Jersey v. Scott Nemeth

November 20, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SCOTT NEMETH, DEFENDANT-APPELLANT,



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-04-0430.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 8, 2012

Before Judges Nugent and Haas.

Defendant appeals from the October 28, 2011 judgment of conviction that imposed a sentence of five-years imprisonment, with a three-year period of parole ineligibility. We affirm.

I.

Defendant was the subject of four separate Mercer County indictments, which each included multiple charges. On August 10, 2010, he was charged in Indictment Number 10-08-0884 with four counts of third-degree possession of a controlled dangerous substance (CDS) (ecstasy, oxycodone, cocaine and buprenorphine), N.J.S.A. 2C:35-10a(1) (counts one, two, five and eight); three counts of third-degree possession of CDS (oxycodone, cocaine and buprenorphine) with intent to distribute, N.J.S.A. 2C:35-5a(1) (counts three, six and nine); three counts of third-degree possession of CDS (oxycodone, cocaine and buprenorphine) with intent to distribute on or near school property, N.J.S.A. 2C:35-7 (counts four, seven and ten); and fourth-degree maintaining a narcotics nuisance, N.J.S.A. 24:21-21a(6) (count eleven).

On December 16, 2010, defendant was charged in Indictment Number 10-12-1316 with two counts of third-degree possession of CDS (cocaine and oxycodone), N.J.S.A. 2C:35-10a(1) (counts one and four); two counts of third-degree possession of CDS (cocaine and oxycodone) with intent to distribute, N.J.S.A. 2C:35-5a(1) (counts two and five); two counts of third-degree possession of CDS (cocaine and oxycodone) with intent to distribute on or near school property, N.J.S.A. 2C:35-7 (counts three and six); and fourth-degree maintaining a narcotics nuisance, N.J.S.A. 24:21-21a(6) (count seven).

On April 9, 2011, defendant was charged in Indictment Number 11-04-0394 with third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); and third-degree possession of CDS (cocaine) with intent to distribute on or near school property, N.J.S.A. 2C:35-7 (count three).

Finally, on April 28, 2011, defendant was charged in Indictment Number 11-04-0430 with third-degree possession of CDS (oxycodone), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS (oxycodone) with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); third-degree obtaining CDS (oxycodone) by fraud, N.J.S.A. 2C:35-13 (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7a (count four); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count five); second-degree possession of a weapon during the commission of a CDS offense, N.J.S.A. 2C:39-4.1a (count six); and second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7b (count seven).

Defense counsel filed a motion to suppress in each of the four indicted matters and a request for a Miranda*fn1 hearing in connection with Indictment Number 10-12-1316. Judge Gerald Council scheduled a status conference for Friday, May 13, 2011. Defendant did not appear on time. When he arrived approximately sixty minutes late, the judge revoked defendant's bail and he was incarcerated. A search of his person revealed he was in possession of "a small quantity of Percocet."

The prosecutor and defense counsel began plea negotiations and arrived at a tentative agreement. Defendant completed the plea forms. However, defense counsel described defendant as "appear[ing] somewhat jangly" on May 13, meaning he may have been under the influence of CDS. Accordingly, the attorneys and the judge decided to address the proposed plea agreement the following Monday, May 16, 2011. Defendant remained incarcerated over the weekend.

On May 16, defense counsel advised the judge that, if the plea was accepted by the court, he would be seeking to have defendant released on bail for at least thirty days pending sentencing. The prosecutor had no objection to this request. However, the judge made it clear he was not committed to releasing defendant on bail and that he would consider the request separately after the plea colloquy had been completed. Judge Council specifically asked defendant if he understood his bail application was not contingent upon him pleading guilty and that "[t]he two are not connected. Your guilty plea and your bail are not connected." Defendant replied he understood.

Judge Council also asked defendant whether he was "currently under the influence of any drugs, alcohol, medication or anything else that would affect your ability to understand what's going on?" Defendant replied, "No." He stated he was thinking clearly and wanted to ...


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