On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Approved for Publication October 31, 1995. As Corrected December 12, 1995.
Before Judges Dreier, A.m. Stein and Kestin. The opinion of the court was delivered by Dreier, P.j.a.d.
The opinion of the court was delivered by: Dreier
The opinion of the court was delivered by DREIER, P.J.A.D.
Defendant appeals from convictions of third-degree possession of LSD, N.J.S.A. 2C:35-10a(1) and 2C:2-6; first-degree possession of LSD with intent to distribute, N.J.S.A. 2C:35-5 a(1), -5b(6), -8 and 2C:2-6; third-degree possession with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5a, -7, -8 and 2C:2-6; first-degree distribution of LSD to a person under eighteen, N.J.S.A. 2C:35-5a(1), -5b(6), and -8; and second-degree employing of a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-5 and -6. The Judge merged the other convictions into the two first-degree crimes and sentenced defendant to concurrent twelve-year terms for the two crimes, each with a five-year parole disqualifier. Thus, defendant's total sentence amounted to a twelve-year term with a five-year parole disqualifier.
Defendant, then an eighteen-year-old repeating senior at Clifton High School, allegedly approached a fellow student, J.Z., on March 6, 1991, about assisting him in dispensing LSD to students at the school. Their arrangement was that defendant would pay J.Z. for distributing a drug that J.Z. believed to be mescaline. On March 13, 1991, defendant hid small tablets of LSD in a Bic pen with a ten dollar bill wrapped around it and gave the tablets to J.Z. to distribute. During the course of the school day, J.Z. distributed the drugs to students who had prepaid for them. At the end of the day, J.Z. returned the pen to defendant. The next day defendant gave J.Z. a new pen filled with similar tablets, which he distributed in the same manner.
Before school on March 15, 1991, J.Z. met defendant and A.B., another student, at a nearby coffee truck and gave defendant $50. Defendant and A.B. then drove to the senior parking lot at the school where defendant met with T.T. to obtain the drugs hidden in the Bic pen. Once inside the school, A.B. saw defendant give the pen to J.Z. J.Z. proceeded to hand out the tablets to the students.
Later that same day, J.Z. was called to the principal's office by the vice-principal, William Cannici, who questioned J.Z. about his drug dealing. After being asked by Cannici to remove the contents of his pockets, J.Z. removed, among other items, a Bic pen. Although Cannici examined the pen and removed the ink cartridge, he did not see any tablets. Cannici then searched J.Z.'s locker but did not find any contraband. Upon returning to his office with J.Z., Cannici tapped the Bic pen on the desk and two small tablets fell out. Assuming that the tablets were narcotics, Cannici recommended that J.Z. cooperate. J.Z. placed another Bic pen on the desk, which contained, instead of an ink cartridge, 43 small tablets similar to the ones found in the other pen. J.Z. informed Cannici that defendant had supplied J.Z. with the drugs.
Cannici then questioned defendant in his office with the principal present. Although defendant's version of the events did not exactly match J.Z.'s, defendant admitted that he drove A.B. to school that morning, met with T.T. in the senior parking lot and gave the pen filled with drugs to J.Z. at the coffee truck near the school. Defendant also stated that he had given 100 "hits" to J.Z. over the previous two weeks. After interviewing defendant for approximately one hour and fifteen minutes, Cannici left the room. When he returned, defendant had already retrieved his car keys from the top of Cannici's desk and left the building.
A.B. informed Cannici that defendant told him that he hid all the drugs located at his house in a nearby wall. This information was passed on to the local police. Later that day, a Clifton police detective went to defendant's home. After obtaining defendant's father's signature on a consent-to-search form, the detective searched defendant's room where he found and seized a beeper. He also searched a nearby retaining wall and found a plastic bag containing sixty-one LSD tablets and other LSD tablets and pill fragments in a smaller plastic bag.
Defendant moved at trial to suppress his statement and the physical evidence taken from J.Z.'s person and defendant's home.
On appeal defendant raises the following issues:
POINT I. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF DRUGS SEIZED FROM J.Z. BECAUSE THE SEARCH WAS NEITHER CONSENSUAL NOR BASED ON REASONABLE CAUSE AND BECAUSE THE TRIAL COURT ERRED IN FINDING DEFENDANT LACKED A REASONABLE EXPECTATION OF PRIVACY IN DRUGS SEIZED FROM J.Z.
POINT 1A. THE SEARCH OF J.Z. WHICH REVEALED 45 TABS OF LSD SECRETED IN PENS IS NOT JUSTIFIABLE AS A CONSENT SEARCH BECAUSE J.Z. WAS ...