STATE OF NEW JERSEY v. MATTHEW MAZUR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0379-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MATTHEW MAZUR,

Defendant-Appellant.

________________________________________________________________

November 12, 2010

Submitted October 6, 2010 - Decided

Before Judges Kestin and Coburn.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-04-00612.

John W. Hartmann, attorney for appellant.

Paula T. Dow, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant pled guilty to this two-count controlled dangerous substances indictment after losing his motion to suppress the evidence on which the indictment was based. The judge merged count one into count two, which charged third degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1), and sentenced defendant to probation for five years plus the appropriate fines and penalties.

On appeal, defendant offers the following arguments:

POINT I

THE LOWER COURT ERRED IN DETERMINING THAT THE OFFICERS['] COMPLIANCE WITH THE PLAINSBORO GENERAL [ORDINANCE] GOVERNING INVENTORY SEARCHES RENDERED THE SEARCH VALID.

POINT II

THE LOWER COURT ERRED IN FINDING THAT THE INVENTORY SEARCH WAS PROPERLY CONDUCTED.

POINT III

THE TRIAL COURT ERRED IN NOT SUPPRESSING EVIDENCE BECAUSE THE SUPREME COURT'S HOLDING IN STATE V. CARTY APPLIES TO INVENTORY SEARCHES AND REQUIRES OFFICERS TO SEEK CONSENT TO SEARCH AND HAVE REASONABLE ARTICULABLE SUSPICION THAT WEAPONS COULD BE FOUND IN THE CAR.

After considering the record and briefs, we are satisfied that all of the defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons stated by Judge Stolte in her thorough and well-reasoned oral opinion of

April 6, 2009. Nevertheless, we add the following brief comments.

Defendant concedes that his car was properly stopped around midnight on a busy highway, which did not have a shoulder, because of improperly functioning lights. He further concedes that the police decided to impound his vehicle when the only insurance card he possessed and showed had expired about three months before the incident. He acknowledges that under the local ordinance impoundment was dictated because of the lack of insurance and that the ordinance required an inventory search before impoundment. The judge found, and the defendant does not deny, that before starting the inventory of the car's contents, the police advised defendant and his accomplice that they could remove any items of value from the car, and that they declined. Although the defendant and his accomplice were being detained when the inventory began, they were not then under arrest. Indeed, the police had specifically agreed to drive them to a nearby location from which they could arrange for further transportation. During the inventory, the officers smelled marijuana, and on opening a bag in the trunk they found the marijuana on which this indictment was based.

As the judge found, this inventory search fully complied with the requirements of State v. Mangold, 82 N.J. 575, 581-587 (1980). Defendant's claim that this search violated State v. Carty, 179 N.J. 632 (2002), was not raised below. Consequently, defendant has no right to raise it now. R. 2:10-2; R. 3:5-7(f). Apart from that, it is apparent that Carty does not apply to inventory searched conducted pursuant to a proper impoundment of a car.

Affirmed.