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State v. Pena

Superior Court of New Jersey, Appellate Division

December 12, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
NELSON M. PENA, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 9, 2013

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-03-0345.

Whitney Elliott, attorney for appellant.

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Melissa A. Tirone, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Before Judges Sapp-Peterson and Lihotz.

PER CURIAM.

Defendant Nelson M. Pena was charged with third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and (b)(3). Following the denial of his motion to suppress, he pleaded guilty to the amended charge of third-degree conspiracy to possess cocaine, N.J.S.A. 2C:5-2(c) and 2C:35-10(a)(1), for which a three-year probationary sentence was imposed. On appeal, defendant maintains suppression should have been granted, arguing:

POINT I.
BECAUSE DETECTIVE ALSTON SEIZED PATILLO WITHOUT REASONABLE SUSPICION, THE COCAINE DISCOVERED AS A RESULT OF THAT SEIZURE SHOULD BE SUPPRESSED (PARTIALLY RAISED BELOW).
POINT II.
WHEN DETECTIVE ALSTON ASKED PATILLO IF HE POSSESSED ANYTHING ILLEGAL, THAT QUESTION AMOUNTED TO A REQUEST FOR CONSENT TO SEARCH PATILLO, BEFORE WHICH DETECTIVE ALSTON DID NOT ADVISE PATILLO OF HIS RIGHT TO REFUSE CONSENT; THE COURT SHOULD THUS REVERSE THE TRIAL COURT'S DENIAL OF MR. PENA'S MOTION TO SUPPRESS (PARTIALLY RAISED BELOW).

In his reply brief, defendant raises similar ...


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