STATE OF NEW JERSEY v. COREY ASHFORD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0031-06T40031-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COREY ASHFORD,

Defendant-Appellant.

_________________________________

 

Submitted: November 6, 2008 - Decided:

Before Judges Lihotz and Messano.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-02-00255; 05-01-0059; 05-01-0062.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Corey Ashford appeals from his criminal conviction following a guilty plea entered pursuant to a plea agreement on certain narcotics charges contained in three indictments. Defendant filed a motion to suppress the drugs seized in a warrantless search incident to the arrest of co-defendant Kenneth Shields. Defendant's pleadings adopted the factual testimony provided by Detective Sutton of the New Brunswick Police Department's anti-crime unit, who testified before the grand jury based upon observations from his surveillance conducted from a concealed location. Specifically, defendant's motion challenged the validity of the warrantless search, arguing an absence of exigent circumstances.

In arguments presented on the return date, defendant asserted he was not contesting drugs were found on Shields, but rather that he was the person who sold those drugs to Shields, as attested by Detective Sutton. This challenge was not set forth in the pleadings.

The motion judge reviewed the grand jury testimony of Detective Sutton along with the pleadings filed and stated:

In this case the officers allegedly observed a drug transaction where the defendant [] spit bags [of cocaine] out of his mouth into his hand, handed them from his hand to Mr. Shields' hand. Mr. Shields handed [defendant] money and put the bags into his pocket. Clearly[,] there is a degree of urgency because the . . . alleged buyer [] was about to leave the scene and the alleged seller could have immediately fled. There is a reasonable belief that the contraband was to be removed absolutely . . . .

. . . .

This is a drug case, and in this case I believe that the circumstances as outlined in the grand jury testimony are such that while the facts are denied by the defendant [ ], [he] would have the opportunity to . . . have those witnesses cross-examined at trial to probe the reliability of their testimony.

However, the testimony that the police officers gave . . . before the grand jury do set forth the basis for exigent circumstances, and a direct observation made by a police officer is a factor that the court may consider in determining whether or not probable cause exists, State v. Flowers, 328 N.J. Super. 205[, 218 (2000)]. And the arrestee can be searched without a warrant, U.S. v. Robinson, 414 U.S. 218, [] 235[, 94 S. Ct. 467, 477; 38 L. Ed. 2d 427, 441 (1973)]. And a search without a warrant incident to an arrest is certainly reasonable and permitted.

In this case[,] the court has considered the totality of the circumstances found. The police officers' observations, if true, provided a reasonable basis for suspecting that defendant [] as well as co-defendant Shields were engaged in a buy and sell drug transaction, that . . . co-defendant Shields had in his pocket alleged contraband given to him in return for cash by defendant [] and there was a reasonable basis for the search.

A warrant [for the search] was not appropriate under the circumstances, the immediacy of the event, the opportunity of the two individuals to leave the scene, the fact that Mr. Shields was in fact leaving the scene, and the possibility that any evidence would have been disposed of or destroyed. Under these circumstances the motion is denied.

When the matter was next listed for review, defendant pled guilty to the following charges: (1) Indictment No. 05-01-0059 - third-degree distribution of CDS on or near school property, N.J.S.A. 2C:35-7 and second-degree distribution of CDS on or near a public building, N.J.S.A. 2C:35-7.1; (2) Indictment Number 05-01-0062 - fourth-degree contempt (violation of a drug restraining order), N.J.S.A. 2C:29-9; and (3) Indictment Number 05-02-00255 - third-degree possession of CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7 and second-degree possession with intent to distribute CDS on or near a public park, N.J.S.A. 2C:35-7.1.

Defendant provided a factual basis to support his plea. The court inquired further and after being satisfied the plea was made knowingly, voluntarily and intelligently, the court accepted the plea. Thereafter, defendant was sentenced, pursuant to the terms of the recommendation made in the plea agreement, to an aggregate of eight years in prison with a four-year period of parole ineligibility and all applicable fines and penalties.

On appeal defendant argues:

THE COURT ERRED IN NOT HOLDING AN EVIDENTIARY HEARING ON THE MOTION TO SUPPRESS AS DEFENDANT DID PRODUCE A COUNTER STATEMENT OF FACTS AND DEFENSE COUNSEL STATED THE EVIDENTIARY PROBLEMS ON THE RECORD. BY RULING ONLY ON THE STATE'S FACTS, DEFENDANT WAS DENIED A FULL AND FAIR HEARING ON THIS MOTION IN DENIAL TO HIS RIGHT TO A FAIR TRIAL.

After considering these contentions in light of the record, the applicable law, and the arguments presented in the briefs, we affirm.

Suppression motions are governed by Rule 3:5-7, which states in pertinent part:

(b) . . . If the search was made without a warrant, the State shall, within 15 days of the filing of the motion, file a brief, including a statement of the facts as it alleges them to be, and the movant shall file a brief and counter statement of facts no later than three days before the hearing.

(c) . . . If material facts are disputed, testimony thereon shall be taken in open court.

Evidentiary hearings need not be set as a matter of course. It is only "when the defendant's counterstatement places material facts in dispute that an evidentiary hearing is required." State v. Green, 346 N.J. Super. 87, 90 (App. Div. 2001); State v. Kadonsky, 288 N.J. Super. 41, 45-46 (App. Div.), certif. denied, 144 N.J. 589 (1996).

Although Rule 3:5-7(b) "does not require defendants to file an affidavit in order to be entitled to a hearing on a motion to suppress evidence obtained as a result of a warrantless search[,]" State v. Torres, 154 N.J. Super. 169, 173 (App. Div. 1977), it does require presentment of a meaningful statement of a factual dispute. State v. Hewins, 166 N.J. Super. 210, 215 (Law Div. 1979), aff'd, 178 N.J. Super. 360 (App. Div. 1981). This requirement is necessary to avoid "prejudice[] [to] the State in its preparation for the motion, and also [avoid] hinder[ing] the court's research in advance of the hearing." Id. at 214. "The rule also seeks to avoid the time-consuming taking of testimony solely for the purpose of affording defense counsel additional discovery, and an opportunity to examine the State's witnesses in advance of trial." Ibid.

Defendant recognizes his motion papers merely advanced legal challenges to the validity of the search. Nevertheless, he argues the supplementary comments advanced at oral argument sufficiently placed material facts in dispute, distinguishing this matter from Hewins and Kadonsky. In Hewins, supra, the trial court reviewed the State's brief, which included a statement of facts, and defendant's answering brief, which contained a counter-statement of facts consisting solely of the assertion that the warrantless search was illegal, 166 N.J. Super. at 212. During the hearing, the defendant was offered an opportunity to amplify his counter-statement of facts. Id. at 213. He refused, arguing he did not admit the truth of the State's allegations and insisting the State produce witnesses to prove the validity of the search and seizure. Id. at 213-214. The court concluded the defendant's abbreviated statement of facts did not place any material fact in dispute and no testimony was necessary. Ibid.

In Kadonsky, supra, it was "not disputed that the defendant's wife, Carol Kadonsky, gave permission for their house to be searched." 288 N.J. Super. at 46. "Apart from the conclusory assertion that an illegal search had occurred and that the evidence seized should be suppressed," the defendant put forth no facts to support this assertion. Ibid. A hearing on the defendant's motion to suppress was not afforded and the motion was denied. Ibid. We affirmed the trial court's finding because no material dispute of facts was presented, and concluded the denial of the defendant's request for an evidentiary hearing was proper.

While we recognize the facts at issue are not identical to those of Hewins and Kadonsky, we conclude the general statements advanced by counsel for the first time at oral argument that defendant was not the seller and Officer Sutton's observation testimony was inaccurate were insufficient to trigger a plenary hearing. Compliance with the requisites of Rule 3:5-7(b) mandates a defendant's suppression motion that challenges the validity of a warrantless search must include notice of the factual challenge to the State's evidence in order to require a plenary hearing. Defendant's argument should have been stated in his motion papers. Inferences, insinuations, and broad allegations of inaccuracies are insufficient when made at argument as they fail to disclose the basis of the dispute. We will not disturb the motion judge's determination to deny defendant's request for a plenary hearing. Green, supra, 346 N.J. Super. at 91; Kadonsky, supra, 288 N.J. Super. at 45.

Affirmed.

 

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A-0031-06T4

December 19, 2008