STATE OF NEW JERSEY v. GERALD HOLEMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5005-04T45005-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERALD HOLEMAN,

Defendant-Appellant.

________________________________________________________________

 

Submitted June 6, 2006 - Decided June 21, 2006

Before Judges Coburn and Collester.

On appeal from the Superior Court of New Jersey,

Law Division, Monmouth County, 04-09-2182-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Tess Leopold, Designated Counsel,

of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney

for respondent (Lora B. Glick, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant, Gerald Holeman, was tried before a jury, which found him guilty of possession of cocaine, N.J.S.A. 2C:35-10a(1). The judge imposed a one-year term of probation. Defendant appeals based on the following arguments:

POINT I

POLICE LACKED A REASONABLE SUSPICION TO SUPPORT WARRANTLESS ENTRY INTO HOME THEREFORE IT WAS CONSTITUTIONAL ERROR TO ADMIT THE CDS RECOVERED INTO EVIDENCE

(Not Raised Below).

POINT II

IT WAS PLAIN ERROR TO ADMIT CDS INTO EVIDENCE THAT WAS RECOVERED PURSUANT TO AN IMPERMISSIBLE CUSTODIAL ARREST AND SEARCH INCIDENT FOR A DISORDERLY PERSONS OFFENSE (Not Raised Below).

POINT III

COUNSEL FAILED TO MOVE TO SUPPRESS THE COCAINE RECOVERED FROM DEFENDANT'S PERSON FOLLOWING A WARRANTLESS HOME ENTRY AND CUSTODIAL SEARCH FOR A MINOR OFFENSE THEREBY DEPRIVING DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV

IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL NOT TO CALL THE OTHER POLICE OFFICERS PRESENT OR ASK FOR A MISSING WITNESS CHARGE.

POINT V

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS BECAUSE THE STATE FAILED TO PROVE VOLUNTARINESS AND WAIVER BEYOND A REASONABLE DOUBT.

After carefully considering the record and briefs, we are satisfied that all of his arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

Defendant never moved for suppression of the drugs. Consequently, we have no record or decision to review in that regard. See R. 3:5-7.

We decline to rule on the ineffectiveness of counsel arguments, leaving them to a post-conviction relief proceeding, if defendant wished to pursue the point. State v. Preciose, 129 N.J. 451, 460 (1992).

We affirm the denial of the motion to suppress defendant's spontaneous statement to the arresting officer for the reasons expressed by Judge Cleary, which were as follows:

In this case the officer has testified that he got a call to go to . . . Apartment Five [in Asbury Park]. He knocked on the door. He went inside. There were three persons there. None of them were residing there, and he confirmed their identities.

Then he did what any police officer would do, he ran warrant checks. He found a warrant from Neptune for this defendant. So he placed him under arrest. He testified that he was not talking to him. He placed him under arrest. And I assume for his protection he patted him down and he found crack cocaine in his pants.

He said at that point the defendant said, "man, I forgot that shit was in there."

He said he didn't [ask] that was not in response to any questions that he asked [defendant] and then he took [defendant] to headquarters.

So Miranda v. Arizona does not apply here. That applies to custodial interrogations, and the point is although the defendant was placed under arrest, and you could say he was in custody, the officer wasn't asking him any questions. The officer didn't keep him for any period of time that would make him give those Miranda warnings. He said [defendant] just said this and it seems to me that it was a spontaneous statement by the defendant. And that certainly doesn't come under the Miranda case.

So I will allow the statement in evidence.

Affirmed.

 

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4

A-5005-04T4

June 21, 2006