STATE OF NEW JERSEY v. DUANE KELLY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5074-03T45074-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DUANE KELLY,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 28, 2006 - Decided March 15, 2006

Before Judges Lefelt and R. B. Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Union County,

Indictment No. 02-03-0460.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Stephen W.

Kirsch, Assistant Deputy Public

Defender, on the brief).

Zulima V. Farber, Attorney General,

attorney for respondent (Maura K.

Tully, Deputy Attorney General, of

counsel and on the brief).

PER CURIAM

Defendant Duane Kelly appeals from his Union County convictions of burglary, theft, possession with intent to distribute a controlled dangerous substance within 500 feet of public housing, eluding, resisting arrest, possession of a weapon in the course of a drug crime, and certain persons not to have weapons. Defendant also appeals from his sentence of forty years imprisonment with eight years of parole ineligibility. He raises two points on appeal: (1) "the trial judge improperly denied the defendant's motion to suppress the marijuana which was seized from defendant's backpack," and (2) "the sentence imposed is unconstitutional and manifestly excessive." We reject defendant's suppression argument, but remand for resentencing.

The facts can be summarized as follows. A Clark Police Officer pursued defendant who was driving a stolen Ford truck. Unknown to the officer at the time, defendant was fleeing the scene of two murders. During the pursuit, the officer observed defendant crossing into the opposing lanes of traffic, driving through a backyard, accelerating to sixty miles per hour, running four stop signs, jumping a curb, narrowly missing two pedestrians, striking the central-air-conditioning unit of a funeral home, striking a parked car and a masonry pillar, and then slamming into a tree coming to an "abrupt stop." Defendant fled on foot running waist-deep into a nearby reservoir, where he suspiciously held his hands under the water for some time. Eventually, defendant surrendered and he was handcuffed and secured.

Another officer approached the disabled truck and noticed a handgun in plain view "wedged between the broken windshield and the dashboard." The officer seized the gun, opened a Nike backpack that was found on the front passenger seat, and discovered marijuana in the pack.

On appeal, defendant does not challenge the seizure of the handgun, but claims in his first appeal point that the search of the backpack violated his constitutional rights. We do not agree, as "a defendant operating an automobile known to him to have been stolen has no reasonable expectation of privacy in its contents." State v. Bohuk, 269 N.J. Super. 581, 595 (App. Div.), certif. denied, 136 N.J. 29, cert. denied, 513 U.S. 865, 115 S. Ct. 183, 130 L. Ed. 2d 117 (1994); see also State v. Lugo, 249 N.J. Super. 565, 568 (App. Div. 1991) (recognizing no expectation of privacy in the stolen vehicle no matter how the contraband has been hidden or packaged).

Defendant contends in his second appeal point that imposition of prison terms greater than the presumptive term violated State v. Natale, 184 N.J. 458 (2005) and that imposition of consecutive terms for second-degree eluding the police and for second-degree certain persons not to possess weapons violated State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

The sentencing judge appears to have considered factors beyond defendant's criminal record to impose the aggregate sentence, which consisted of maximum terms for each conviction in excess of the presumptive. Accordingly, under Natale, supra, 184 N.J. at 484, we must remand for re-sentencing without consideration of any presumptive term. We also add the following observations regarding the consecutive terms.

The judge set forth his reasons for imposing a consecutive sentence for the eluding conviction. He explained it was "a very bad eluding." It was "a separate type of crime. It's a crime of violence unlike the drug case. It's a crime which caused a lot of risk, lot of people on that date and time and therefore in my judgment [the prison term for that conviction] should be consecutive." These reasons address the relevant Yarbough factors.

On June 4, 2004, however, the judge also imposed a consecutive ten-year prison term for the "certain persons" conviction despite the fact that this same weapon generated a statutorily mandated consecutive term pursuant to N.J.S.A. 2C:30-4.1d. In a previous sentence on December 12, 2003, the ten year term was "concurrent to the other two Indictments." On June 4, 2004, no explanation was provided for changing the concurrent to a consecutive term. On April 15, 2005, the trial judge indicated during another resentencing of defendant that the consecutive term in question was imposed because "[i]t is a separate and distinct crime and a separate and distinct punishment." In the statement of reasons attached to the confirming order, the judge further explained the purpose of the consecutive term was "to demonstrate to this defendant and to others with a similar criminal record, that the Courts of this State will not tolerate people with serious criminal records who insist on carrying firearm[s] and thereby endanger[ing] the citizen[s] of this State." We are uncertain whether the warning in the order was intended to memorialize, supplement, clarify or replace the judge's findings at the sentencing hearing. Normally, the comments made at sentencing control. State v. Pohlabel, 40 N.J. Super. 416, 422 (App. Div. 1956).

Upon remand, therefore, we remind the judge that if consecutive sentences are re-imposed, the factors specified in Yarbough, supra, 100 N.J. at 643-44, should be addressed.

 
Defendant's convictions are affirmed, but the matter is remanded for resentencing in accordance with this decision.

(continued)

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A-5074-03T4

March 15, 2006