STATE OF NEW JERSEY v. KAISIM SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5670-04T45670-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KAISIM SMITH,

Defendant-Appellant.

_________________________________

 

Submitted May 22, 2006 - Decided June 13, 2006

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of

New Jersey, Law Division, Union County,

04-01-000361.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A Union County Grand Jury returned Indictment No. 04-01-000361 charging defendant, Kaisim Smith, with possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count One); possession of cocaine with intent to distribute in a quantity of one half once or more, N.J.S.A. 2C:35-5a(1) and 5b(2) (Count Two); possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three); distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Four); distribution of cocaine within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Five); possession of a weapon during the violation of N.J.S.A. 2C:35-7, N.J.S.A. 2C:39-4.1b (Count Six); maintaining a fortified structure, N.J.S.A. 2C:35-4.1c (Count Seven); aggravated assault, N.J.S.A. 2C:12-1b(2) (Count Eight); and aggravated assault, N.J.S.A. 2C:12-1b(5) (Count Nine).

Defendant filed a motion to suppress. A hearing was held on October 2, 2003, and continued on November 13, 2003. The October 2, 2003, hearing ended following the direct examination of Detective Larry Smith of the Elizabeth Police Department. At the November 13 hearing, testimony was given by Officer Joseph McDonough, following which the judge rendered his opinion from the bench, denying defendant's motion to suppress. Through inadvertence, defendant was never given the opportunity to cross-examine Detective Smith. On September 20, 2004, pursuant to a negotiated plea agreement, defendant pled guilty to the ninth count charge of third-degree aggravated assault. The remaining counts were dismissed and defendant was sentenced to a five-year term with one year of parole ineligibility.

Defendant appeals raising the following points:

POINT I

DEFENDANT WAS DENIED HIS RIGHT OF PROCEDURAL DUE PROCESS BY THE FAILURE OF THE COURT TO ALLOW CROSS-EXAMINATION OF ONE OF THE STATE'S WITNESSES AND DEFENDANT'S MOTION TO SUPPRESS MUST BE REMANDED FOR A NEW HEARING. (Not Raised Below).

POINT II

DEFENDANT'S SENTENCE VIOLATES THE RULING IN STATE V. NATALE AND MUST BE REMANDED.

The State concedes that defendant was not afforded the opportunity to cross-examine Detective Smith and was thereby deprived of his right to due process. We, therefore, summarily reverse the order denying defendant's motion to suppress and remand to permit defendant the opportunity to cross-examine Detective Smith. Following the completion of Smith's testimony, the judge should rule on defendant's motion anew. Should defendant's motion to suppress be denied, defendant should be given the opportunity to withdraw his plea.

We note that the sentencing judge's finding of aggravating factors, N.J.S.A. 2C:44-1a(3) ("risk that the defendant will commit another offense"); N.J.S.A. 2C:44-1a(6) ("extent of the defendant's prior criminal record"); and N.J.S.A. 2C:44-1a(9) ("need for deterring the defendant and others from violating the law"), with no mitigating factors, was not based exclusively on defendant's prior criminal conviction. See State v. Abdullah, 184 N.J. 497, 506 (2005) (decided the same day as State v. Natale (Natale II), 184 N.J. 458, 466 (2005). Therefore, should defendant decide not to withdraw his previously entered plea, resentencing is required under Natale II for consideration whether the judge would impose a lesser sentence in the absence of the presumptive term.

Reversed and remanded.

 

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A-5670-04T4

June 13, 2006