Allcorn, Morgan and Horn.
Convicted by jury of possession of heroin (N.J.S.A. 24:21-20(a)) and possession of heroin with intent to distribute (N.J.S.A. 24:21-19(a)(1)), defendant appeals, contending that (1) the trial judge erred in denying his motion to suppress evidence uncovered in a warranted search on the ground that the affidavit upon which the warrant issued contained an insufficient showing of probable cause; (2) the verdict was against the weight of the evidence and defendant's motion for a new trial on that ground should have been granted; (3) error occurred when the court refused to strike evidence that defendant was engaged in selling narcotics, and (4) the judge should have merged the two convictions.
The evidence upon which the convictions must rest disclosed that on May 16, 1971, following a three-day surveillance of an apartment house at 185 Monticello Avenue, Jersey City, police officers, armed with a search warrant, entered apartment 10 at that address in order to search for narcotics. During their surveillance of the building the officers had observed several males, some of whom were known narcotics users, enter the front door of the apartment house,
remain in the building for a short period of time, and then leave in a hurried manner. No effort was made to determine to which apartment in the apartment house these suspected purchasers of narcotics resorted. None of them were stopped after leaving for questioning as to which apartment they had been visiting and for what purpose. According to the officers on surveillance, their suspicion that these persons had purchased narcotics was based on the knowledge that several of them were users and the hurried manner in which they departed the building.*fn1
The entry into the apartment house on May 16, 1971 was accomplished by "slipping" the bottom lock of the hallway entrance to the apartment house with a thin knife. Ascending to the fourth floor where apartment 10 was located, they rang the bell and served the warrant on defendant Brown who answered the door.
A search of the apartment revealed 50 glassine bags of white powder, later identified as heroin, found in the pocket of a white dress hanging in a closet of one of the two bedrooms in the apartment. Twelve additional glassine bags containing white powder were found on the person of a Wallace Young, who was in the apartment at the time of the search. Although defendant was searched at the apartment and later at police headquarters, no narcotics were found on his person. No money was found in the apartment or on either defendant or Young.
Although evidence of defendant's relation to the apartment was sparse, there was enough to support a conclusion that he lived there for an undetermined period of time. Hence, one of the officers testified that he had seen him on several occasions in the neighborhood entering the building
in question and defendant himself, when at police headquarters after the search, gave apartment 10 at 185 Monticello Avenue as his place of residence. The record, however, is silent as to whom the apartment was leased, the nature of Wallace Young's relationship to the apartment other than his presence there during the search, and whether others were living there as well. Although women's clothing was found in the closet in which the heroin was also found, nothing in the evidence suggested to whom the clothing belonged or whether the owner or owners of the clothing lived there.
Hence, the evidence supporting the jury's verdict concerning possession, viewed in a light most favorable to the State, discloses that defendant, a resident of apartment 10 at 185 Monticello Avenue, Jersey City, was present and living in the apartment where narcotics were found concealed in the pocket of a dress belonging to some unknown person, hanging in a bedroom closet, and in the possession of another person also found present in the apartment.
Applying State v. Sapp , 144 N.J. Super. 455 (App. Div. 1975), rev'd on the dissenting opinion, 71 N.J. 476 (1976), decided by the Supreme Court after trial of this case, we conclude that the State's case was insufficient as a matter of law.*fn2 In Sapp , as here, defendant resided in premises where narcotics were found and from which narcotics were being distributed. In both cases the drugs were found in concealed places; in Sapp , however, narcotic paraphernalia was found in plain view. The majority in the Appellate Division concluded that defendant lived ...