Goldmann, Collester and Mintz. The opinion of the court was delivered by Goldmann, P.J.A.D.
[116 NJSuper Page 442] Defendant was indicted for unlawful possession of heroin, in violation of N.J.S.A.
24:18-4. Prior to trial he moved to suppress the evidence, claiming it was the result of an unlawful search and seizure. The motion was denied, defendant tried to a jury, found guilty, and sentenced to a state prison term of 4-6 years and fined $100.
On this appeal defendant first argues that the trial judge erred in denying his motion to suppress because the police did not have probable cause to search and arrest. Their search and seizure, he avers, violated his constitutional rights, and therefore the glassine packet containing the heroin in question should not have been admitted in evidence.
At the hearing on defendant's motion to suppress the court heard the testimony of two of the three arresting officers, members of the Paterson Narcotics Squad, whose qualifications and credentials were stipulated by defense counsel. Officer Clark testified that just before noon of June 23, 1969 he was on routine patrol in an unmarked police car with two other members of the squad, Officers Brejack and Hutchinson, in the area of Bridge Street, Paterson. There is a heavy traffic of narcotics users in that area, at least 100 narcotics arrests having been made there in the last year. Clark said that he and other members of the narcotics squad had had defendant under surveillance for several days prior to the event in question since he was suspected of being involved in the narcotics traffic because of his association in the area with known narcotics violators. When the witness saw defendant walking north on Bridge Street he and his two companions decided to follow him, and when defendant went into a candy store they circled the block, got out of the patrol car, and positioned themselves behind a building at the intersection of Bridge and Godwin Streets, north of the store. Defendant eventually left the store and walked north on Bridge toward the corner where the officers were concealed. Clark testified that he had noticed a young man walking some four or five feet behind defendant. When defendant reached the corner the officers
stepped out from their hiding place and came up to defendant, surprising him. They saw him turn around, hand a folded handkerchief to the young man behind him and heard defendant say something to him. The youth was about to put the handkerchief into his pocket when the officers moved in on the pair. Officers Clark and Brejack intercepted defendant, and Officer Hutchinson stopped the youth and without resistance confiscated the handkerchief. Clark testified that at that moment he saw a glassine packet of white powder fall from the handkerchief. The youth identified himself as Harry Robinson. A search of defendant revealed no contraband.
The trial judge permitted Clark, over defense counsel's objection, to testify to a statement Robinson had made to the officers, within defendant's presence and hearing. What Robinson said was that he had never seen defendant before and that defendant gave him a handkerchief and told him to put it in his pocket. The judge held the statement part of the res gestae, i.e. , part of the surrounding circumstances under which the seizure took place, and allowed it on the issue of whether the search and seizure was reasonable.
Officer Hutchinson corroborated Clark's testimony, adding that defendant looked in the direction of the officers when they started toward him, just before the attempted transfer. The young man attempted to put the handkerchief, balled up in his fist, into his pocket, but then stopped and released it to Hutchinson. The officer placed him under arrest, searched him and found nothing.
Based on this testimony the trial judge ruled there was probable cause for the search, and that the search and seizure was reasonable. He found that there was considerable narcotics traffic in the area; defendant had been, and at the time in question was, under surveillance for traffic in narcotics, and the sudden transfer of the handkerchief was in itself a suspicious transaction. These conclusions were stipulated by defense counsel. The trial judge denied the suppress motion.
The first trial resulted in a mistrial when defendant chose not to continue with 11 jurors, after one of them had become ill. Robinson testified for the State at that trial.
The first day of the second trial consisted of Officer Brejack's testimony, which corroborated that of the officers who had testified at the suppress motion hearing. On the second trial day, and just before the jury entered the courtroom, defense counsel notified the judge that defendant requested permission to address the court. The judge twice warned defendant that anything he said could be used against him, and that what he was doing was against the advice of his attorney. Defendant nonetheless still desired to address the court, and accordingly was permitted to do so. He then advised the judge that the trial should be stopped because Robinson had decided to change his prior testimony and tell the truth. After some discussion the judge inquired of the prosecutor if he was ready to take Robinson's testimony. It was decided to have Robinson testify out of the presence of the jury. After he was sworn the trial judge cautioned him as to the consequences of his failure to tell the truth under oath. Robinson then testified that it was he who was in actual possession of the heroin at all times; he ...