Opinion
DOCKET NO. A-6447-08T1
02-09-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAN FRANK MCCALLUM, JR., a/k/a KHALIF BELL, JAMES GILDER, DAN E. MCCALLAM, DANIEL F. MCCALLUM, DARREN SMITH, DARRIM SMITH, MIKE SMITH, KAHLIF TAREK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, on the brief). Paula T. Dow, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 07-07-0277.
Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, on the brief).
Paula T. Dow, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, on the brief).
PER CURIAM
We are presented with challenges to the warrantless seizure of a motorist's car keys followed by a search of an object attached to the key chain during a motor vehicle stop. Defendant Dan Frank McCallum, Jr. appeals from his convictions for possession of a controlled dangerous substance (CDS), and hindering his apprehension. He asserts the court erred in denying his pre-trial motion to suppress and his application for admission to Drug Court. On appeal he argues:
POINT I.
THE WARRANTLESS SEIZURE OF THE CAR KEYS AND THE SEARCH OF THE CYLINDER ATTACHED TO THE KEYS CONSTITUTED A VIOLATION OF MR. MCCALLUM'S RIGHT TO BE FREE OF UNREASONABLE SEARCHES AND SEIZURES, NECESSITATING SUPPRESSION OF THE EVIDENCE AND REVERSAL. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.
A. In the Absence of Probable Cause and Exigent Circumstances, the Warrantless Seizure of Mr. McCallum's Car Keys was Illegal.
B. The Evidence of CDS Recovered from the Cylinder was the Result of an Illegal Search.
POINT II.
BECAUSE THE TRIAL JUDGE INCORRECTLY FOUND THAT MR. MCCALLUM WAS PER SE DISQUALIFIED FOR ADMISSION INTO DRUG COURT, THE JUDGE SHOULD HAVE ORDERED AN EVALUATION OF DEFENDANT'S SUBSTANCE ABUSE HISTORY AND RECOMMENDATION OF A SUBSTANCE ABUSE EVALUATOR BEFORE DENYING HIM ADMISSION,
REQUIRING REMAND FOR RECONSIDERATION OF DRUG COURT ADMISSION.
We have considered these arguments in light of the record. We conclude the police met the standards for probable cause and exigency prior to requesting defendant surrender his car keys. Consequently, the warrantless seizure of the keys was properly upheld. Further, the police viewed cocaine residue on the threads of the cylinder attached to defendant's key chain, allowing a search of its contents under the plain view doctrine. Finally, we have no basis to disturb the order upholding the denial of defendant's application for admission to Drug Court. Accordingly, we affirm.
I.
The following facts are taken from the testimony presented during the suppression hearing and the motion record. The events arise out of a traffic stop of defendant's vehicle conducted by State Police on January 29, 2007, at approximately 1:00 a.m. Defendant was traveling along Interstate Highway 80 in a green Ford Explorer when observed by State Troopers Nicholas Mastrella and Jarrod Cramer. The troopers effectuated a motor vehicle stop because defendant was driving between thirty-five and forty-five miles per hour in a sixty-five mile per hour zone and "was weaving a little left and right touching the marked lines."
The troopers approached the passenger's side window of defendant's vehicle and asked for his credentials. Defendant recited his name as "Khaif Bell" and stated his date of birth was "June 6, 1966." Defendant produced the vehicle's registration, a valid insurance card, and explained he had no form of identification because his wallet containing his Florida driver's license was stolen. The troopers returned to their cruiser and searched the databases for Florida, New Jersey, Connecticut, New York, and Pennsylvania for a license matching the pedigree information provided by defendant. When the database search returned no matches, the troopers returned to defendant's vehicle and inquired whether they had incorrectly recorded his information. This time defendant spelled his name as "Khalif." Noting the misspelling, the troopers undertook a second database check, but again no matching driver's license record was found. Around that time, another police cruiser, with two backup troopers, arrived at the scene.
Troopers Mastrella and Cramer returned to defendant's vehicle, one on each side of the car, while the backup troopers remained near the vehicle's rear passenger tire. Trooper Cramer told defendant no record of a license using the information he had given could be located. Defendant insisted his name was "Khalif Bell," contended he was thirty-six years old, and provided a social security number. The stated age was inconsistent with the date of birth defendant previously related. Trooper Cramer requested defendant surrender the keys to his car, while the police continued to check the databases, because he recognized defendant was lying and "suspect[ed] [he] was a flight risk." Defendant turned off the vehicle, pulled the keys out of the ignition, and handed them to Trooper Mastrella, who along with his partner returned to their cruiser to conduct a third database search using the newly provided social security number.
While sitting in the cruiser, Trooper Mastrella looked at defendant's keys and noticed the key ring was attached to a "partially unscrewed," small, red, metal cylinder, approximately "an inch, inch and a half in size[,]" that had "white powdery residue" along "the thread of the cap and also along the rubber seal or rubber washer that's on the cap itself[.]" Relying on his training and experience, Trooper Mastrella, believed the white powdery residue was "[p]ossible CDS, cocaine[.]" Trooper Mastrella showed the threads of the canister dusted with the powdery substance to Trooper Cramer, then unscrewed the cap of the cylinder, revealing its "hollowed out inside." The hollowed portion of the cylinder contained more of the "white powdery residue."
Troopers Mastrella and Cramer, accompanied by the two backup troopers, requested defendant exit his vehicle and walk to its rear. Defendant complied and was placed under arrest. Trooper Cramer administered Miranda warnings. Defendant signed the Miranda card, "Khaleef Bell." In the incident search, the Troopers found "a cigarette with a green vegetation on [defendant's] person." They also retrieved a driver's license "located in the armrest of the vehicle, which . . . had a picture of a younger black gentleman[,]" which was issued to "Khalif Bell."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant was taken to police headquarters where he was fingerprinted and a criminal history check was completed. The troopers discovered defendant's true identity and learned "Khalif Bell" was his son. Defendant was wanted for a parole violation, which he admitted prompted his use of a false name. A vehicle registration check revealed the Ford Explorer defendant was driving belonged to his girlfriend.
Defendant was taken to the Warren County jail where Corrections Officer (CO) Mark Nace processed him for intake. CO Nace observed defendant as he undressed in preparation for a shower. When defendant was asked to remove his athletic supporter, he hesitated, then began to slide his hand near his genital area when CO Nace saw what appeared to be a plastic bag inside the supporter. Defendant was ordered to hand Nace the bag, which was described as:
Mark Nace's name is incorrectly spelled "Mace" in the January 30, 2008 suppression hearing transcript.
a small red plastic bag with green leafy vegetation. There were two . . . one dollar bills that were folded up that had something in them. There were two decks of little clear plastic bags that were altogether and bundled up and there w[ere] . . . two pieces of aluminum foil that had stuff in them also.The substances in the bag were later tested and determined to contain "14 folds of heroin, [two one dollar] bills folded containing . . . cocaine, and two pieces of tin foil containing . . . cocaine."
Defendant was charged with two counts of third-degree possession of CDS, heroin and cocaine, in violation of N.J.S.A. 2C:35-10a(1) (counts one and two), as well as fourth-degree hindering apprehension, in violation of N.J.S.A. 2C:29-3b (count three).
Prior to trial, defendant moved to suppress the contents of the cylinder based on the unlawful seizure of his car keys. During the suppression hearing, Troopers Mastrella and Cramer and CO Nace testified. The State also introduced into evidence the red metal cylinder and two video tapes taken from the police cruisers' mounted video cameras.
The court summarized its findings and conclusions, as follows:
The facts are that [defendant] was driving on Route 80 during the winter at approximately [forty] miles an hour. State Police stopped him because that speed is generally unheard of on Route 80. It causes traffic congestion. You're likely to be run over on Route 80 at [forty] miles an hour.The trial judge entered an order denying defendant's motion to suppress.
Following the stop . . . [defendant] continued to provide . . . unreliable information . . . and every time he provided a piece of information and [the trooper] tried to verify it[,] it was a lie. . . . Rather than removing [defendant] from the vehicle[,] the police did . . . a justifiable thing, they removed the keys . . . and said you stay in the car and we're trying to find out who you are[.]
. . . .
The Court finds there was probable cause to stop defendant on Route 80 for, . . . driving inappropriately. Once that occurred, . . . there were a series of outright lies and attempt[s] to conceal identification. The police had every right to find out who [defendant] was. They were unable to do so. And, again, . . . perhaps as a courtesy to the defendant, or perhaps by error, they allowed him to remain in the car and took his keys. He gave them the keys.
When they returned to their car they did notice . . . a white powdery substance on a little container. They opened that container and there was cocaine.
Subsequently the defendant was arrested, taken to the County Jail, and upon a strip search[,] further drugs were found on his person. The officers would have been remiss in this case to allow the defendant to leave, not knowing who he was or what he was doing.
The Court finds beyond a reasonable doubt that there was probable cause to stop this vehicle, and once the keys had been observed by the police there[] [was] probable cause for them to open the container, and once they found out what they thought was cocaine in that container[,] obviously they had every right to arrest him, and what followed at the police station or the correctional facility was perfectly legal.
Subsequently, defendant applied for admission into the Warren County Drug Court program. The County Prosecutor's Office rejected his application because of his "weapons history"; two or more prior convictions of second and third degree offenses; and a determination he was a significant threat to the community. Defendant appealed to the Law Division. In a written opinion, the court found the prosecutor's denial was not a patent and gross abuse of discretion as the nature and extent of defendant's criminal history statutorily disqualified his admission to Drug Court.
Following trial, a jury convicted defendant of all charges. He was sentenced to an aggregate extended term of five years imprisonment along with applicable fines and penalties. This appeal ensued. We examine the two issues presented in defendant's merits brief.
II.
A.
Defendant raises constitutional attacks against the warrantless seizure of his keys and the warrantless search of the attached red cylinder. He concedes a successful outcome on this issue is necessary to suppress the CDS hidden in his athletic supporter. "Although stopping a car and detaining its occupants constitute a seizure within the meaning of the Fourth Amendment, the governmental interest in investigating an officer's reasonable suspicion, based on specific and articulable facts, may outweigh the Fourth Amendment interest of the driver and passengers in remaining secure from the intrusion." United States v. Hensley, 469 U.S. 221, 226, 105 S. Ct. 675, 679, 83 L. Ed. 2d 604, 610 (1985). In arguing that the contraband was unlawfully seized, defendant's challenges do not focus on the validity of the investigatory motor vehicle stop. See State v. Stovall, 170 N.J. 346, 356 (2002) (holding an investigatory stop is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest). Rather, defendant maintains the trial judge erred in denying suppression of the evidence obtained in the search, arguing the warrantless seizure of his car keys followed by a search of the cylinder attached to the keys violated the Fourth Amendment's protections against unreasonable searches and seizures. U.S. Const., amend. IV; N.J. Const. art. 1, ¶ 7.
The constitutional protections prohibiting unreasonable searches and seizures "impose a standard of reasonableness on the exercise of discretion by government officials to protect persons against arbitrary invasions." State v. Maristany, 133 N.J. 299, 304 (1993). "'[T]he touchstone of the Fourth Amendment is reasonableness.'" State v. Zapata, 297 N.J. Super. 160, 171 (App. Div. 1997) (quoting State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)), certif. denied, 156 N.J. 405 (1998). Under both the United States and New Jersey Constitutions, any "warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000). See also State v. Pineiro, 181 N.J. 13, 19 (2004) (holding warrantless searches must fall within one of the well delineated exceptions). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968) (seizure of a person); State v. Hempele, 120 N.J. 182, 218-19 (1990) (seizure of property). "The State, as the party seeking to validate the warrantless search, 'has the burden of proving the validity of the search[,]'" State v. Moore, 181 N.J. 40, 44-45 (2004) (quoting State v. Maryland, 167 N.J. 471, 489 (2001)), and must demonstrate that the search "falls within one of the few well-delineated exceptions to the warrant requirement." Maryland, supra, 167 N.J. at 482 (internal quotation marks and citations omitted).
We have uncovered no authority discussing circumstances analogous to those presented here; specifically, where a police officer requested a motorist to surrender his keys, leading to a search of an object attached to the keys. Nevertheless, we conclude the principles governing searches following automobile stops provide the necessary and appropriate guidance for our review.
One exception to the warrant requirement, as applied to vehicle searches, is the "automobile exception." The warrantless seizure of property found in an automobile search will be upheld if "the stop is unexpected[,]" the totality of the circumstances satisfactorily justifies a finding of probable cause to believe "the vehicle contains contraband or evidence of a crime[,]" and "exigent circumstances exist[,]" which make it impracticable to obtain a warrant. State v. Pena-Flores, 198 N.J. 6, 28 (2009). See also Cooke, supra, 163 N.J. at 675.
Probable cause has been defined as "something sufficient to engender a belief somewhere between bare suspicion and a conviction of guilt. . . . [T]he issue is not whether the information which reached the officer was true or false but only whether the officer was reasonable in accepting the information as true." State v. Burnett, 42 N.J. 377, 387 (1964). In determining whether probable cause existed in a specific case, we must analyze objectively "what an informed, trained and reasonably experienced police officer under all of the circumstances would have understood in terms of whether there is probable cause." State v. Novembrino, 105 N.J. 95, 162 (1987).As to exigency, the Court has instructed:
[State v. Goodwin, 173 N.J. 583, 598 (2002).]
Exigency must be determined on a case-by-case basis. No one factor is dispositive; courts must consider the totality of the circumstances. How the facts of the case bear on the issues of officer safety and the preservation of evidence is the fundamental inquiry. There is no magic formula—it is merely the compendium of facts that make it impracticable to secure a warrant. In each case it is the circumstances facing the officers that tell the tale.
Legitimate considerations are as varied as the possible scenarios surrounding an automobile stop. They include, for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.
[Pena-Flores, supra, 198 N.J. at 28-29 (internal citations and quotations omitted).]
Applying these standards, we turn our review to a careful examination of all the facts and circumstances leading to the troopers' seizure of defendant's car keys. Here, defendant was driving on a busy interstate highway, in the center traffic lane, well under the posted speed limit, and weaving within his traffic lane. As noted by the trial judge, the erratic driving in the early morning hours posed a hazard to surrounding vehicles, which justified police intervention and detention. Once stopped, defendant could neither produce a valid license nor any valid proof of identification. The registration and insurance were in another person's name and officers' questions were met with inconsistent and false responses. At this point, the troopers' reasonable suspicion that defendant was hiding illicit conduct, including the possibility he did not legitimately have possession of the vehicle, was significant. See State v. Carty, 170 N.J. 632, 637 (2002) ("'The trooper certainly had the right to detain him until he was satisfied that he was in fact dealing with a licensed driver in a car that was not stolen.'" (quoting State v. Carty, 332 N.J. Super. 200, 205 (App. Div. 2000), aff'd, 170 N.J. 632 (2002))). Patiently, the troopers attempted, for a third time, to verify defendant's identity. Trooper Cramer asked defendant his social security number and age. Defendant further prolonged his detention by reporting an age that did not match his previously stated date of birth. The troopers easily recognized the lie, heightening the likelihood defendant was involved in criminal activity, making him a flight risk. Defendant's deception precluded verification of his identity. More important, the reasons for defendant's deception were unclear at that time, posing a great threat to the officers' safety.
Unlike State v. Pierce, where the defendant was stopped for a motor vehicle offense -- driving while on the revoked list, which is considered very serious because an unlicensed driver's possession of a motor vehicle poses a great threat to the safety of himself and the public as he was not found fit to drive, 136 N.J. 184, 207 (1994) -- defendant possessed no proof of identity and falsely answered the troopers' inquiry seeking his name, date of birth, age, and social security number. Concealing his true identity, coupled with the fact he could not offer any credible information he was licensed to drive, raised the spectra of possible illegal conduct and potential harm, transcending the type of incidental or minor traffic offenses that the Supreme Court identified, which would now permit a search of the vehicle incident to arrest. Id . at 214.
Defendant acknowledges his conduct was sufficient to support his arrest, before the police discovered the CDS. See N.J.S.A. 39:5-25 (authorizing issuance of arrest for the violations of the provisions of Title 39, Chapter 3 or 4). Defendant's deception created an uncertainty which the police were required to address. Believing he was a significant flight risk, the troopers decided to allow defendant to stay in his vehicle after he turned over his keys. Although the most prudent course would have been to arrest defendant, we conclude sufficient probable cause existed to seize defendant's car keys to assure he could not drive.
We also determine the request for the keys was not pre-textual. The troopers gave defendant the benefit of all possible doubt by making a third attempt to verify his identity using the provided social security number. There is no evidence supporting a contention that Trooper Cramer sought possession of the keys for the purpose of conducting a search of the cylinder. Thus, the discovery of CDS was neither expected nor anticipated.
We conclude the totality of the circumstances known to the troopers, which include more than a routine traffic violation, rose above mere suspicion to a well-grounded belief that criminal activity was involved. See Burnett, supra, 42 N . J. at 387 ("Probable cause then is something sufficient to engender a belief somewhere between a bare suspicion and a conviction of guilt."). Under the circumstances, we reject the assertion that the troopers should have obtained a warrant prior to requesting defendant's keys.
The State additionally maintains defendant voluntarily surrendered his keys, or alternatively, the troopers only asked for the ignition key to the vehicle, and defendant voluntarily handed over his entire keychain containing the cylinder. Although, defendant concedes he turned his keys over "without resistance," this fact sensitive issue was not presented to the trial court for determination and we decline to review the merits of the State's assertion. See State v. Robinson, 200 N.J. 1, 20-22 (2009) (providing that the Appellate Division will not address issues not presented to the trial court).
Once defendant's keys were in Trooper Mastrella's possession, he saw what he reasonably believed was "possible CDS" on the partially unscrewed metal cylinder. The State argues the plain view doctrine permits unscrewing the cap and looking inside. We agree.
In State v. Mann, the Court explained the plain view exception to the warrant requirement as follows:
Pursuant to the plain view exception, three elements must be satisfied: "First, the police officer must be lawfully in the viewing area. Second, the officer has to discover the evidence inadvertently, meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. Third, it has to be immediately apparent to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure."
[203 N.J. 328, 340-41 (2010) (citing Bruzzese, supra, 94 N.J. at 236 (citations omitted)).]
These three elements are satisfied under the facts here presented. As the trial judge stated: "[Trooper] Mastrella simply looked down at the key ring in his hand when he unexpectedly noticed in plain view what he immediately recognized as possible cocaine on the threads and seal of the already partly opened cylinder container." The trial court's remarks essentially credit the troopers' testimony explaining inadvertent discovery of the white powder on the threads of the cylinder's partially unscrewed top. After seeing the substance, Trooper Cramer's experience and training made it immediately apparent the container held CDS.
We are not persuaded by defendant's suggestion the troopers should have obtained a telephonic warrant prior to opening the cylinder. The circumstances faced by the troopers satisfied the probable cause and exigency requirements to obviate a warrant. Probable cause is found when, "in view of all the circumstances, 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Wilson, 178 N.J. 7, 13 (2003) (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991) (internal quotation marks and citations omitted)). Defendant's deception and the troopers' discovery of the white powder on the threads of the cylinder supported a conclusion the object contained CDS.
Also, the circumstances were sufficiently exigent to justify opening the partially unscrewed cylinder. Although defendant cooperatively handed the troopers his keys, he refused to disclose his identity. The troopers knew defendant was lying and they could not rule out the possibility they were faced with a violent fugitive. Objectively, police safety is a "'preeminent determinant[]' of exigency for purposes of applying the automobile exception." Pena-Flores, supra, 198 N.J. at 28 (quoting State v. Dunlap, 185 N.J. 543, 551 (2006)).
In light of this analysis, we will not second guess the troopers' request for defendant's surrender of his keys or the search of the red metal cylinder attached to his key chain, both of which we conclude were objectively reasonable in light of the surrounding facts and circumstances. See State v. Alvarez, 238 N.J. Super. 560, 569 (App. Div. 1990). We also find no basis to challenge the seizure of the plastic bag viewed by CO Nace during the intake procedures prior to defendant's admission to the county jail.
B.
The second issue raised on appeal challenges defendant's rejection as a Drug Court candidate. Defendant maintains he should not have been rejected until an evaluation of his substance abuse history and a recommendation of a substance abuse evaluator were obtained. We disagree.
The procedures for admission into the Drug Court are set forth in the Administrative Office of the Courts, Manual for Operation of Adult Drug Courts in New Jersey (Manual), (July 2002), available at http://www.judiciary.state.nj.us/directive/ dctman.pdf. "Drug Courts are a creature of the judiciary[,] and the practices and procedures of that court are set forth in the [D]rug [C]ourt Manual." State v. Clarke, 203 N.J. 166, 174 (2010) (internal quotation marks and citations omitted). Consideration for admission to Drug Court is clearly defined.
The Drug Court Manual outlines two separate tracks for admission into Drug Court. The applicant must either meet the requirements for special probation pursuant to N.J.S.A. 2C:35-14, track one, or otherwise beAs the trial judge properly noted, defendant's prior convictions (twenty prior convictions, seventeen of which resulted in a state prison sentence and fourteen for drug distribution), disqualified him for Drug Court admission under the first track and his "history of possession of a firearm during an offense," justified exclusion under the second track. The court stated:
eligible under other sections of the Code of Criminal Justice[,] track two.
Under the first track, to meet the requirements for special probation, the applicant must have committed a crime that is subject to a presumption of incarceration or a mandatory prison term, and the judge must find that the applicant satisfies nine separate factors. A presumption of imprisonment applies to an applicant who is charged with a first or second-degree offense. If the applicant is successful in meeting the requirements for admission under track one, the judge will then impose a five-year period of special probation. Admission under this track is generally obtained with the prosecutor's consent. If the prosecutor does not consent, the trial judge may only admit the applicant under track one if the judge finds a gross and patent abuse of prosecutorial discretion.
The second track permits applicants to be admitted into Drug Court under the general sentencing provisions of the Code of Criminal Justice. An applicant is eligible for Drug Court sentencing under this track if:
a. the person has a drug or alcohol dependence, as determined by a diagnostic assessment and substance abuse treatment and monitoring is likely to benefit the person; and
b. the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, robbery, kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws of any other state or the United States; and
c. the person did not possess a firearm at the time of the present offense and has no history of possession of a firearm during an offense; and
d. no danger to the community is likely to result from the person being placed on probation.
[Id. at 174-76 (internal citations and quotations omitted).]
In January of 1996, defendant was arrested for possession of controlled dangerous substance and distribution of CDS on school property, and for possession of a handgun. The . . . related charges were dismissed pursuant to a guilty plea. However, for a person to be ineligible for drug court under the general sentencing provisions, he only needs a history of (not a conviction for) possessing a weapon during an offense. Based on a review of defendant's criminal history, it is clear that he is ineligible for admission into drug court in light of the January 1996 charges filed against him for Distribution of CDS and Possession of a Weapon.
Defendant had been charged with third-degree possession of a weapon-handgun in violation of N.J.S.A. 2C:39-5b, which was later dismissed pursuant to a guilty plea of offenses arising from the same facts.
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These reasons support the order denying defendant's challenge to the prosecutor's denial of his application for Drug Court admission. We discern no basis to intervene.
Affirmed.