STATE OF NEW JERSEY v. VINCENT SALERNO

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1162-17T4


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VINCENT SALERNO, a/k/a
VINCENT SALERNO, JR.,

     Defendant-Appellant.
_____________________________

                    Submitted October 25, 2018 – Decided December 3, 2018

                    Before Judges O'Connor and Whipple.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 17-01-0004.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Alicia J. Hubbard, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Erin M. Campbell, Assistant Prosecutor,
                    on the brief).

PER CURIAM
      Defendant appeals from an October 10, 2017 judgment of conviction.

Defendant pled guilty to possession of a firearm while conspiring to distribute a

controlled dangerous substance (CDS),  N.J.S.A. 2C:39-4.1(a), after an

indictment charged him with drug, firearm and weapons possession, and

conspiracy to possess and distribute drugs. We affirm for the following reasons.

      On September 20, 2016, Jersey City police oversaw two controlled buys

of heroin by a confidential informant from defendant's apartment.             On

September 22, 2016, the police obtained a search warrant for the apartment.

Melissa Hoffman, with whom defendant shared a bedroom, "Brittany," a white

female, "Vinny," a white male in his thirties, and "Chris," a white male in his

thirties, were persons subject to the search warrant.

      When police arrived at defendant's apartment building, they observed

someone who fit defendant's description exit the building and engage in a hand-

to-hand transaction with two men. The police arrested defendant on the street

after police searched his book bag and found suspected heroin.1 Prior to the

search, a police officer asked defendant what the book bag contained, to which

defendant allegedly responded "dope."       Defendant moved to suppress his


1
   Although both defendant's brief and the State's brief refer to heroin, all
defendant's indicted CDS charges are for fentanyl, an analog. The indictment
makes no reference to heroin.
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statement and the heroin. The trial judge suppressed defendant's statement but

not the heroin, finding the search warrant authorized the book bag search.

      Simultaneously, police officers executed the search warrant on

defendant's apartment. Defendant did not challenge the validity of the search

warrant, nor does he discuss what the police found. 2

      Although the record provided does not reliably demonstrate what the

search warrant yielded, defendant was indicted for far more than what can

reasonably be tied to the street encounter. Defendant was indicted for weapons

offenses including: second-degree possession of a firearm while committing a

drug crime,  N.J.S.A. 2C:39-4.1, three counts of second-degree possession of a

weapon for an unlawful purpose,  N.J.S.A. 2C:39-4a and b, second-degree

unlawful possession of a weapon,  N.J.S.A. 2C:39-5, three counts of possession

of prohibited devices,  N.J.S.A. 2C:39-3a and d, and second-degree certain

persons not to have weapons,  N.J.S.A. 2C:39-7b. Defendant was also indicted

for the following drug offenses: third-degree possession of controlled dangerous




2
  The State alleges, based on an uncorroborated police report, that police found
a handgun, miscellaneous controlled substances, drug paraphernalia and flash
bang and smoke grenades in the apartment.


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                                       3
substances, 3 N.J.S.A. 2C:35-10, second and third-degree possession of CDS

within a school zone and a public zone,  N.J.S.A. 2C:35-5 and 7, first-degree

conspiracy to possess CDS with intent to distribute,  N.J.S.A. 2C:5-1 and 2C:35-

5b(1), and fourth-degree possession of paraphernalia with intent to distribute,

 N.J.S.A. 2C:36-3.

      Defendant ultimately pled guilty to one count of possession of a firearm

while conspiring to distribute a controlled dangerous substance,  N.J.S.A. 2C:39-

4.1. During his plea colloquy, defendant admitted he possessed a handgun while

conspiring to distribute CDS. Neither party specified whether the charge was

based on CDS found in the apartment, the heroin in defendant's backpack, or the

fentanyl and anabolic steroids alleged in the indictment. He was sentenced in

accordance with a plea agreement to five years in prison with a forty-two month

term of parole ineligibility.

      Defendant raises one point on appeal:

             Point I: THE EVIDENCE IN THIS CASE SHOULD
             BE SUPPRESSED BECAUSE THE POLICE
             LACKED A CONSTITUTIONAL BASIS TO STOP
             AND SEARCH MR. SALERNO.

3
   The CDS charges in defendant's indictment all identify the controlled
substance as Furanyl Fentanyl, not heroin. It is unclear whether the parties are
equating heroin and fentanyl. We also note defendant was named as an
unindicted co-conspirator with co-defendants Melissa Hoffman and Christopher
Salerno to distribute anabolic steroids.
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                                       4
      Defendant argues the trial judge erred when she denied suppression of the

evidence in his book bag. Even if we were to agree with defendant's assertion,

defendant has provided no reason, and we fail to discern, how the handgun

charge, to which he pled guilty, was exclusively connected to a conspiracy to

distribute suspected heroin found in his book bag. As noted, defendant was

charged with conspiring with others to distribute fentanyl and was alleged to

have conspired to distribute anabolic steroids.      Defendant has offered no

explanation as to why these other charges and allegations were not the basis for

the element of conspiracy to distribute or how the book bag search related to the

indictment. The remaining charges in the indictment were dismissed after

defendant pled guilty.

      "[I]f a pre-trial motion only affects a dismissed count, an appeal of that

pre-trial motion presents a moot, non-justiciable question." State v. Davila,  443 N.J. Super. 577, 585 (App. Div. 2016). Defendant presented no reason for us to

conclude the book bag evidence remained relevant once defendant pled guilty

to a weapons charge premised on conspiracy with others. For that reason, we

affirm his judgment of conviction.

      Affirmed.




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