STATE OF NEW JERSEY v. KENNETH L. STRICKLAND

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5368-04T45368-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH L. STRICKLAND,

Defendant-Appellant.

________________________________

 

Submitted November 1, 2006 - Decided November 20, 2006

Before Judges Collester and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 04-04-0481-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Kenneth L. Strickland was convicted of third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5b(5); and third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7. On March 7, 2005, the sentencing judge granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f) and N.J.S.A. 2C:44-3(a) and imposed an aggregate custodial sentence of eight years with a four-year period of parole ineligibility.

Shortly after 1 a.m. on February 3, 2004, New Brunswick Police Officer Ronaldy Martinez was on patrol in his marked police car when he observed defendant, whom he knew on sight, at the corner of Seaman Street and Lee Avenue. Defendant was wearing a black skull cap, a green and black coat, and black sweat pants. At the hearing on defendant's motion to suppress, Martinez testified that he took defendant into custody because there was an outstanding municipal bench warrant for his arrest.

At police headquarters Martinez searched the defendant and found a plastic bag containing nineteen smaller bags of cocaine in a deep inside pocket of his jacket.

At trial the State called Investigator Mark Levy of the Middlesex County Prosecutor's Office as an expert witness in narcotics distribution and possession of narcotics with the intent to distribute. He opined that based upon the quantity of cocaine, the packaging of nineteen separate bags within a larger bag, and the manner in which they were hidden in the back of defendant's coat, defendant possessed the controlled dangerous substance with the intent to distribute. Testifying on his own behalf, defendant did not deny possession of the cocaine but claimed that the possession was for his personal use and not for distribution.

On appeal, defendant makes the following arguments:

POINT I - THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE BENCH WARRANT UPON WHICH THE ARRESTING OFFICER RELIED WAS INVALID.

A. THERE WAS NO PROBABLE CAUSE TO ARREST DEFENDANT.

B. THE EVIDENCE RECOVERED SHOULD HAVE BEEN SUPPRESSED AS IT WAS THE FRUIT OF THE POISONOUS TREE.

C. THE MOTION TO SUPPRESS SHOULD HAVE GRANTED BECAUSE THE SEARCH EXCEEDED THE PERMISSIBLE SCOPE OF A SEARCH INCIDENT TO ARREST. (Not Raised Below.)

POINT II - IT WAS REVERSIBLE ERROR TO DENY DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

A. THE STATE FAILED TO MEET ITS BURDEN OF PROOF.

B. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III - IT WAS PLAIN ERROR TO PERMIT THE EXPERT TO TESTIFY. (Partially Raised Below.)

POINT IV - THE SENTENCE IMPOSED WAS ILLEGAL IN ACCORDANCE WITH THE BLAKELY-APPRENDI-NATALE STANDARD.

Defendant's arguments are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(E)(2). We make the following brief comments. Defendant's main contention to his argument is that his arrest was illegal and, therefore, any evidence must be suppressed. See State v. Novembrino, 105 N.J. 95, 157-58 (1987); State v. Moore, 260 N.J. Super. 12, 16-17 (App. Div. 1992).

Two municipal bench warrants had issued for defendant, one from New Brunswick and the other from Millburn. The New Brunswick warrant was based on defendant's failure to pay fines and costs imposed as a condition of sentence. Defendant's contention is that because he was incarcerated at the time the warrant was issued, he did not receive notice and could not be legally arrested. The argument is fallacious. Defendant does not deny that the fines were in fact not paid as prescribed by the issuing judge. There is no constitutional requirement of notice before a person is arrested. Indeed, the police officer had a duty to execute the warrant.

Therefore, we affirm defendant's conviction. However, we remand the matter for re-sentencing in light of the recent Supreme Court opinion in State v. Thomas, 188 N.J. 137 (2006).

Affirmed in part. Reversed and remanded in part.

 

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A-5368-04T4

November 20, 2006