STATE OF NEW JERSEY v. ANTONIO MALDONADO

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1090-05T51090-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

ANTONIO MALDONADO,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 17, 2007 - Decided

Before Judges Coburn and Gilroy.

On appeal from the Superior Court of New Jersey,

Law Division, Hudson County, No. 1851-10-2003-I.

Stephen D. Brown, attorney for appellant.

Stuart Rabner, Attorney General, attorney

for respondent (Russell J. Curley, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

After losing his motion to suppress evidence, defendant pled guilty to first degree possession of a controlled dangerous substance, cocaine, with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1). Pursuant to the plea arrangement, the trial judge merged the other count of the indictment, which charged a third degree school zone offense, N.J.S.A. 2C:35-7, and sentenced defendant to imprisonment for fifteen years with five years of parole ineligibility. Although the judgment of conviction accurately sets forth the term of imprisonment, it incorrectly refers to conviction for the third degree crime set forth in N.J.S.A. 2C:35-5(b)(2). We remand for correction of the judgment.

When defendant pled guilty, he preserved his right to challenge the validity of the search and seizure on appeal, and that is the only issue we are asked to decide.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant consideration in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Callahan in his oral opinion of January 12, 2005. Nonetheless, we add the following comments.

Based on a fairly lengthy police investigation, which involved, among other things, four controlled purchases of cocaine from defendant between May and June 2003, the Hudson County Prosecutor's Office became involved in the investigation and initiated a fifth purchase, planned for July 15, 2003. The confidential informant, during a telephone conversation monitored by the police, ordered a large quantity of cocaine and agreed to meet defendant at an Exxon station in Jersey City to complete the transaction. Defendant said he wanted to meet at the Exxon station because he had already scheduled meetings with several other customers at that location.

The Exxon station is located on a main thoroughfare, which was usually congested at the time set for the meeting. Defendant arrived by car and walked toward a convenience store located on the property. Police officers blocked off all three entrances to the Exxon station as five police officers approached defendant. They stopped him, read him his Miranda rights, and asked where the drugs were. Defendant indicated the specific location of the drugs in the car. The police opened the area described by defendant and found a large quantity of cocaine.

The owner of the Exxon station complained to the police about their preventing customers from entering, and vehicles and pedestrians on the surrounding streets began stopping to view the scene, thereby impeding traffic. As time passed, the officers became concerned that the other customers defendant had mentioned during the monitored telephone call might arrive, and that they might be armed and dangerous and interested in stealing the car or any additional drugs that might be found in it. They stopped the search and brought defendant's car to the Narcotics Task Force office, which was about two miles away. They then searched the rest of the car, locating an additional 100 grams of cocaine concealed in a location not previously mentioned by defendant. They did that, in part, because the confidential informant had ordered 140 grams of cocaine and their initial search had revealed only 40 grams.

Defendant concedes that if exigent circumstances existed, the search of the car was proper. In State v. Cooke, 163 N.J. 657, 672 (2000), the Court held that exigent circumstances may exist if "unanticipated circumstances that give rise to probable cause occur swiftly." They may also exist when an element of surprise has been lost, a vehicle contains contraband, a confederate is waiting to move the evidence, or where the police would otherwise have needed to call in reinforcements to guard an immobilized vehicle. State v. Colvin, 123 nj 428, 434-35 (1991). Also, "exigent circumstances do not dissipate simply because the particular occupants of the vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom of movement." State v. Alston, 88 N.J. 211, 234 (1981).

Here, the officers did not know that defendant had the cocaine until he told them it was in the car. Given the other circumstances, a highly congested area which was becoming increasingly congested as a result of the police presence and defendant's arrest, and the probability that other customers were present or would soon be arriving, that they might know defendant's car and might search it for drugs or steal it if the police left the scene to get a warrant, and that they might use violence to accomplish those ends, we are satisfied that Judge Callahan correctly found that exigent circumstances warranted removal of the car and its search at the nearby Narcotics Task Force Office. See State v. LaPorte, 62 N.J. 312, 316 (1973), and State v. Martin, 87 N.J. 561, 568 (1981)(both upholding a search at headquarters without a warrant when exigent circumstances justified removing the vehicle from the scene of the arrest).

Affirmed.

 

The arrest record, the indictment and the judgment of conviction spell appellant's last name as indicated above, but the spelling "Maldanado" appears on appellant's brief and throughout the record.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-1090-05T5

February 1, 2007