On appeal and cross-appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Milmed, Joelson and Gaulkin. The opinion of the court was delivered by Milmed, P.J.A.D.
Defendant was charged in a three-count indictment (No. S-434-81) with: (first count) unlawful possession of cocaine with intent to distribute that controlled dangerous substance (N.J.S.A. 24:21-19(a)(1)); (second count) unlawful possession of cocaine (N.J.S.A. 24:21-20(a)(1)), and (third count) unlawful possession of over 25 grams of marijuana (N.J.S.A. 24:21-20(a)(4)). He moved to suppress the evidence taken by the police from his premises pursuant to a search warrant, on three grounds, viz., that (1) "information presented in support of the warrant was stale"; (2) "information presented in support of the warrant was uncorroborated by the police," and (3) "the person who signed and authorized the issuance of the warrant was not a judge or magistrate of the municipal court in the city of Englewood." The trial judge who heard the motion, by order, denied it on each of the first two grounds advanced by defendant, but granted it on the third ground. We granted the State's motion for leave to appeal as well as defendant's motion for leave to cross-appeal. We now reverse the order of suppression.
The essential facts may briefly be summarized. In his affidavit which he submitted in support of his February 24, 1981
application for a warrant to search defendant's premises in Englewood, Detective Sergeant Philip Morgan of the Englewood Police Department, assigned to its Youth Bureau, stated that on February 20, 1981 the mother of a 14-year-old female reported to a detective at the Youth Bureau that her daughter "had been sexually assaulted and forced to take narcotics by" the child's aunt*fn1 and the aunt's boyfriend, defendant Charles Jones, and that the "incident took place at 61 Tenafly Road, Englewood, N.J." on February 13, 1981. Morgan further stated that on February 23, 1981 the child, in a statement to an investigator and stenographer from the Bergen County Prosecutor's Office, reported that on February 13, 1981 her aunt:
Morgan additionally noted that the child had reported "that the cocaine is kept in a desk type piece of furniture in the bedroom" but that she did "not know where the marijuana was in the house on the evening of Feb. 13, 1981."
On the strength of the affidavit submitted to him by Detective Sergeant Morgan, Gerald Escala, on February 24, 1981, issued the search warrant in his capacity as acting judge of the Englewood Municipal Court. The warrant was executed the same day. The property seized included marijuana, suspected cocaine, narcotics paraphernalia, pistols, ammunition and a shotgun.
On this appeal and cross-appeal defendant continues to challenge the validity of the search warrant on the same three grounds he advanced before the trial judge. Defendant's claims are entirely without merit, and we reject them.
On February 15, 1980 Judge Trautwein, then assignment judge for Bergen County, appointed Judge Gerald Escala of the
Westwood Municipal Court to be acting judge of the Municipal Court of the City of Englewood "for the year 1980. . . ." The appointment was included in a general order, made pursuant to R. 1:12-3(a), designating acting municipal court judges of the Englewood Municipal Court for 1980. The order provided that the acting judges so designated "shall sit temporarily for the Primary Judge and hold court and conduct all judicial business before the Englewood Municipal Court," and that they
On March 11, 1981 Judge Trautwein, in a substantially similar general order, again appointed Judge Escala to serve as an acting judge of the Municipal Court of the City of Englewood, this time "for the year 1981. . . ." As noted above, the challenged search warrant was ...