STATE OF NEW JERSEY v. AURELIO C. OJEDA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2574-03T42574-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AURELIO C. OJEDA,

Defendant-Appellant.

_________________________________________________

 

Submitted September 6, 2005 - Decided:

Before Judges Payne and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

1-10-1090.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel and on the brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Hillary

Horton, Deputy Attorney General, of

counsel and on the brief).

PER CURIAM

Defendant Aurelio Ojeda and co-defendant Merced Robles were charged in Passaic County Indictment No. 01-10-1090 with second- degree possession of cocaine in violation of N.J.S.A. 2C:35-5a(1) and b(2) (count two); third-degree possession of cocaine with the intent to distribute it within 1,000 feet of a school in violation of N.J.S.A. 2C:35-7 (count three); third-degree possession of heroin in violation of N.J.S.A. 2C:35-10a(1) (count four); and third-degree possession of heroin with the intent to distribute it in violation of N.J.S.A. 2C:35-5a(1) and b(3) (count five). Trial took place, and following a declaration of a mistrial as the result of a hung jury, Ojeda entered into a guilty plea to "Count One of the indictment, possession of cocaine as amended to conspiracy to possess cocaine, a third degree crime." He received a sentence of three years of probation with 100 hours of community service. Applicable fines and penalties were imposed.

On appeal, Ojeda challenges the order of the trial judge denying his pre-trial motion to suppress evidence. R. 3:5-7(d). He presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS

A. FACTUAL INTRODUCTION

B. THE PREVAILING LEGAL PRINCIPLES REGARDING WARRANTLESS SEARCHES RELATING TO THE REASONABLE EXPECTATION OF PRIVACY, THE PLAIN VIEW DOCTRINE, THE EMERGENCY AID DOCTRINE AND ABANDONED PROPERTY.

C. WHILE THE INITIAL SEIZURE OF THE BAG OF CRACK COCAINE ALLEGEDLY DROPPED BY THE CO-DEFENDANT ON THE COUNTER TOP IN THE RESTAURANT MIGHT HAVE BEEN PROPER, THE ENSUING SEIZURES OF A SECOND BAG CONTAINING CRACK COCAINE AS WELL AS THE OPAQUE M&M CANDY BAG CONTAINING COCAINE AND HEROIN WERE IMPROPER.

We affirm. In doing so, we express no opinion as to the validity of the seizures of the "second bag containing crack cocaine" or the "opaque M&M candy bag containing cocaine and heroin." We note that defendant does not challenge the initial seizure of the "bag of crack cocaine allegedly dropped by the co-defendant on the counter top in the restaurant."

We note as well that when proffering a factual basis for his plea of guilty to the charge of conspiracy to possess cocaine, only the following occurred:

Q Okay. Now going back to January 24th, 2001, you remember that night, correct?

A Yes.

Q Now is it true that you and Mr. Merced (Phonetic) decided that you were going to get some drugs?

A Yes.

Q And you understand that it's illegal to possess drugs, in this case cocaine?

A Yes.

Q And you conspired with Mr. Merced and acted upon that conspiracy to obtain the drugs. Is that correct?

A Yes.

Because Ojeda did not contest the seizure of the cocaine allegedly dropped by his co-defendant Merced on the countertop of the restaurant, a factual basis sufficient to support defendant's plea exists, regardless of the legality or illegality of the seizure of the second bag containing crack cocaine or the M&M bag containing cocaine and heroin. We thus find no error sufficient to require reversal of Ojeda's conviction.

 
Affirmed.

The indictment does not contain a count one.

(continued)

(continued)

4

A-2574-03T4

September 28, 2005