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State of New Jersey v. Davidson Desir

December 20, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVIDSON DESIR, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-10-2386.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 12, 2012

Before Judges Nugent and Haas.

Defendant Davidson Desir appeals from a September 9, 2011 order denying his petition for post-conviction relief (PCR). We affirm.

I.

A.

After his motion to suppress was denied, defendant pled guilty to first-degree possession of heroin, with intent to distribute. N.J.S.A. 2C:35-5b(1). He was sentenced to thirteen years in prison, with a six and one-half year period of parole ineligibility.

Defendant filed a direct appeal and raised the following arguments:

POINT I

BECAUSE THE STOP AND SEARCH OF THE CAR IN WHICH THE DEFENDANT WAS A PASSENGER WAS ILLEGAL, ALL EVIDENCE DISCOVERED DURING AND SUBSEQUENT TO THE MOTOR VEHICLE STOP SHOULD HAVE BEEN SUPPRESSED.

POINT II [DEFENDANT'S MOTHER'S] CONSENT TO SEARCH HER HOME WAS NOT KNOWINGLY AND VOLUNTARILY GIVEN AND, THUS, ALL EVIDENCE SEIZED FROM MR. DESIR'S BEDROOM MUST BE SUPPRESSED.

We affirmed defendant's conviction in an unpublished opinion. State v. Desir, No. A-0380-09 (November 1, 2010).

On November 29, 2010, defendant filed a petition for PCR. He alleged he was denied the effective assistance of appellate counsel because his attorney did not argue that his mother lacked the authority to consent to the search of defendant's bedroom. On September 9, 2011, Judge Anthony J. Mellaci, Jr., who was also the judge at the time of the motion to suppress and plea, held oral argument, determined an evidentiary hearing was not required, and denied defendant's petition for PCR.

B.

We begin by referencing the essential background facts as set forth in our earlier opinion and in the transcript of the suppression hearing. Following a three-month investigation in which individuals other than defendant had sold controlled dangerous substances to undercover police officers, the police determined to arrest the targets of their investigation. Desir, supra, slip op. at 12. As they prepared to move in to arrest the targets as they were standing by a car, a second car arrived at the scene. (Id. at 13). The second car's passenger, who was later identified as defendant, got out of the car, opened the trunk, and took out a yellow plastic bag, from which he removed a pair of purple latex gloves. Ibid. According to the police, "such bags were often used by those involved in handling narcotics to avoid the drug being absorbed through their skin." Ibid. One of the targets walked over and stood next to defendant at the trunk of defendant's car and spoke to him. Ibid. Defendant then got into the car and it drove away. Ibid.

Based on these circumstances, the police believed defendant had been involved in a drug transaction with the targets of their investigation. Ibid. The police pursued and stopped defendant's car and an officer saw two bags of marijuana in plain view inside the car. Ibid. Defendant and his girlfriend, who was the driver of the car, were arrested. Judge Mellaci found that the vehicle stop and the seizure of the drugs was valid and, "perceiv[ing] no basis for reversing [the judge's] determination that the search was valid under the applicable legal principles governing investigative detention[,]" we affirmed this determination. Id. at 13-14.

After her arrest, defendant's girlfriend told the police that defendant resided with her, but he kept his "stash" of drugs at his parents' house. Id. at 14. "[T]he police went to this house believing it might contain illegal drugs owned by defendant." Ibid. Four of the officers who responded to defendant's parents' home, Detective Michael Bonanno, Officer Eddy Raisin, Detective Scott Samis, and Sergeant Thomas Nuccio, testified concerning what occurred at that time.

Initially, no one was at the residence when the police arrived around 6:00 p.m. Eventually, defendant's cousin pulled up in a car. The cousin told the officers he was staying at the home and he would contact defendant's parents to ask them to come home to speak with them. However, Officer Raisin was familiar with the family and he called defendant's father at work. The father told the officer to call defendant's ...


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