On appeal from two judgments of the Superior Court of New Jersey, Law Division, Ocean County.
Approved for Publication April 1, 1996.
Before Judges Michels, Baime and Villanueva. The opinion of the court was delivered by VILLANUEVA, J.A.D.
The opinion of the court was delivered by: VILLANUEVA
The opinion of the court was delivered by VILLANUEVA, J.A.D.
The State appeals from an order denying its forfeiture claim for $36,000 in cash that was found in a strongbox underneath a one-pound bag of marijuana and $610 found in a purse discovered during a valid search. The State also appeals from a judgment acquitting Kenneth L. Jones (defendant) entered by the Law Division Judge seventy-two days after the Judge had originally found defendant guilty of possession of marijuana, in violation of N.J.S.A. 2C:35-10a(3). *fn1 We consolidated the two appeals.
During the execution of a search warrant on October 28, 1993, at the residence of Beverly Blight (Blight) at 318 Ash Road, Bass River Township, members of the Ocean County Narcotics Strike Force (Strike Force) found $36,560 *fn2 in cash and more than one and one-half pounds of marijuana.
On January 13, 1994, the Ocean County Prosecutor's Office filed a verified complaint for forfeiture of the $36,560, alleging that it constituted proceeds of illegal drug activity or, alternatively, had been or was intended to be used in the furtherance of unlawful activity or was an integral part of such activity. N.J.S.A. 2C:64-1 to -9.
On May 18, 1994, the Ocean County Grand Jury returned an indictment against Blight and Kenneth Jones (defendant) charging them with third degree conspiracy to distribute marijuana, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(11) (count one); fourth degree possession of marijuana in excess of fifty grams, in violation of N.J.S.A. 2C:35-10a(3) (count four); and third degree possession of marijuana with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and 5b(11) (count five). The indictment also charged Blight with fourth degree distribution of marijuana, in violation of N.J.S.A. 2C:35-5b(12) (counts two and three).
This case arises from the distribution of marijuana from Blight's residence during September and October 1993. Prior to trial, the trial court accepted Blight's and defendant's waiver of a jury trial. By consent of all parties, the trial court consolidated the forfeiture and criminal actions for purposes of trial. Immediately following the opening statements of counsel, Blight entered an unconditional plea of guilty to all but count one of the indictment.
Earlier that year, in an unrelated drug transaction, Richard Ashworth was arrested for drug-related activities and pleaded guilty to the charge of conspiracy to distribute marijuana. The State agreed to recommend a probationary sentence in exchange for Ashworth's cooperation with the Strike Force with regard to an investigation of suspected drug activity at 318 Ash Road. Specifically, Ashworth was instructed to arrange and conduct controlled purchases of marijuana from Blight while wearing a wireless body transmitter and using currency furnished by investigators.
During the trial the State offered the following evidence. During his conversation with Blight on the afternoon of September 7, 1993, Ashworth arranged to purchase marijuana at Blight's residence later that evening. After Ashworth arrived at Blight's residence, she asked him to "step into my office," referring to the master bedroom. After proceeding into the master bedroom with Blight, Ashworth asked to purchase an eighth of an ounce of marijuana and Blight provided him with a clear plastic zip-lock bag containing marijuana.
On September 21, 1993, Ashworth arranged a second controlled purchase of marijuana from Blight. Upon arriving at her house that evening, Ashworth and Blight discussed at length whether Blight's source could secure large quantities of marijuana to be purchased by Ashworth. Blight noted that with regard to her drug transactions, "everybody makes a buck." During the conversation, Blight walked into the master bedroom while Ashworth remained in the living room. That evening Ashworth purchased sixth-eighth's of an ounce of marijuana from Blight.
On September 30, 1993, Ashworth again arrived at Blight's house and was greeted at the door by defendant. Defendant, Ashworth and Blight then proceeded to the master bedroom where Ashworth and Blight again discussed the possibility of her source obtaining a large quantity of marijuana and the appropriate price for it. At one point, defendant noted that Blight's source was "very shaky to say the least." As Ashworth and Blight continued to discuss the price of the marijuana, defendant, while sitting on a platform bed, interjected, "You almost feel better about it when somebody is gonna do it for nothin', if somebody is gonna go it for nothin', ya know what I mean," and observed that, "Nobody is doin' dick for nothin'." While in the bedroom, Ashworth observed various quantities of marijuana in a gray strongbox which Blight removed from underneath the bed and then unlocked. Ashworth could see that the box contained various papers, including a piece of paper with his name written on it that reflected the amount of money he owed to Blight for the marijuana.
On October 7, 1993, Ashworth returned to Blight's house. Again defendant was present. As Ashworth, Blight and defendant stood together in the kitchen, Blight extolled the virtues of the marijuana she possessed and indicated that she and defendant had just smoked a thin joint and gotten high. Defendant added that "It's good pot," and stated that he was surprised by its potency. When Ashworth asked Blight if she was willing to sell marijuana in the amount of "eight-eighths," defendant repeated "eight-eighths." Defendant later asked Blight if her source had "come here to personally" sell her the marijuana.
Based upon the information gathered by Ashworth, investigators obtained a search warrant for Blight's residence, which they executed at approximately 7:00 p.m. on October 28, 1993. During a search of the bottom drawer of an unlocked filing cabinet located in the master bedroom, Investigator Jeffrey Vogt discovered a one-pound bag of marijuana. The investigator then uncovered a locked strongbox located directly underneath the bag of marijuana. He did not recall that any of the interior doors of the residence were locked when the search warrant was executed.
While searching the master bedroom, Investigator Michael Franzoso observed in plain view a second plastic bag of marijuana, later found to weigh one-half pound, atop the bed's headboard. He also found a triple-beam scale on the floor of the bedroom. In addition, the investigator recovered from the master bedroom a film container filled with foil-wrapped marijuana, a bag of marijuana cigarettes and assorted narcotics paraphernalia.
Investigators then attempted to locate the key to the locked strongbox. Keys obtained from Blight and defendant did not fit the lock. While searching underneath the cushions of a couch in the living room, Sergeant Jeffrey Bissey located keys. Blight, who was observing the search, exclaimed, "Oh, you found my keys. They've been lost for approximately two months," and thanked him. The sergeant opened the locked box with one of the keys and discovered bank envelopes containing $36,000 in currency. Each envelope was marked with a figure that corresponded with the amount of currency contained therein. Another $610 was recovered from Blight's purse during the search.
On November 5, 1993, Investigator Scott Haemmerle examined each envelope found in the strongbox to ascertain whether the serial numbers of the currency seized matched those on the currency previously furnished to Ashworth to conduct the controlled buys. Of the nineteen $20 bills, two $10 bills, and one $50 bill provided to Ashworth for the controlled buys on September 7 and 21, the investigator discovered the same $50 bill in an envelope numbered "sixteen." The investigator contemporaneously noted the match on the confidential fund expense voucher he was required to complete.
Sergeant Jeffrey Harper of the Strike Force, an expert in narcotics and narcotics trafficking, testified that given the facts of this case, the marijuana found in Blight's bedroom was possessed for distribution purposes and not for personal use. With respect to the $36,000 found underneath the one-pound bag of marijuana in Blight's filing cabinet, Sergeant Harper stated that in his sixteen years of experience, he frequently observed that drug dealers hide their proceeds to avoid detection by police and customers intent on robbing them. According to Sergeant Harper, drug dealers rarely deposit the proceeds of their illegal activities in banks or other financial institutions in their effort to avoid creating a "paper trail" from which authorities could be alerted to their illicit conduct. Lastly, Sergeant Harper testified that the price of one pound of marijuana was generally $1,200 to $1,600 and that a dealer could readily generate a net profit of $4,540 by selling the marijuana in one-eighth ounce quantities for $30.
Blight and defendant elected to testify at their joint trial. According to Blight, she first became acquainted with defendant in 1980 when she moved to 318 Ash Road and became his neighbor. She and defendant became "emotionally dependent on each other" and intimate in their relationship after defendant's wife left him in 1983. Defendant briefly moved in with her at 318 Ash Road for several weeks in the mid-1980's. Blight also claimed that prior to October 28, 1993, although defendant would frequently visit her house, his visits were short and he stayed overnight no more than once or twice a month. According to Blight, even though they had been engaged for six years, defendant was living in a bedroom of a next-door neighbor, Charles Suit, when investigators conducted the search of her house on October 28, 1993. *fn3
Blight also claimed that she was drug dependent and that defendant had attempted unsuccessfully to secure her admission into various substance-abuse treatment programs prior to the search of her home. She denied that defendant sold drugs, although she acknowledged that he would occasionally smoke a joint with her.
Blight further maintained that her only source of subsistence, aside from dealing drugs, was public and emergency assistance, food stamps, and the occasional sale of puppies and candles. She also claimed that the $610 found in her pocketbook by investigators constituted profits from the sale of candles. Blight acknowledged that defendant "contributed substantial amounts" to her "financial position" and had established a trust account for her containing approximately $7,000.
She further claimed that when she was not home, she would lock the door to her master bedroom with a heavy dead-bolt lock for which she possessed the only key. Blight explained that the strongbox discovered by investigators belonged to defendant, who left the box at her house that morning because they were scheduled to meet with a lawyer to discuss purchasing a house. Although she acknowledged that she, too, possessed a key to the strongbox, Blight maintained that it contained only defendant's money derived from an inheritance. Blight claimed that she had lost her key to the strongbox for two months and did not have access to the strongbox "all the time." She adamantly denied, however, ever taking money from the box. She later claimed, though, that she would occasionally give defendant her paperwork to keep for her in the box.
Finally, Blight claimed that defendant had no knowledge of the large quantities of marijuana in her bedroom on October 28, 1993, and that she had placed the strongbox in the filing cabinet after visiting the lawyer. She further contended that she told the investigators during the search that the box belonged to defendant and that it contained only his money. Blight also denied profiting from the sale of marijuana, claiming that she turned over all proceeds to her source, whom she identified as her brother, in exchange for marijuana for her personal use.
During cross-examination, Blight acknowledged that defendant had applied for and obtained a credit card for which they were both jointly liable. Blight also conceded that defendant was aware that she was selling marijuana but asserted that he disliked Ashworth because defendant "pretty much caught on to what was going on" and "never discussed marijuana" with her or Ashworth "ever." She further stated that defendant would only smoke marijuana when "enticed" by her to do so.
Blight claimed that defendant usually carried the strongbox with him and would entrust it to her only when he stayed at her house or "for some reason," which was "hardly ever." Later, however, she testified that she kept her son's bonds in the box as well as her passport and birth certificate and "possibly" those of her children. She denied stating to an investigator, "That's my money, I've been saving that for a long time," when the strongbox was opened in the living room during the search.
When asked by the trial court whether she or defendant dominated their relationship, Blight asserted that she did and "still do[es]." Immediately thereafter, she denied having any control whatsoever over defendant's strongbox. Blight further. explained that defendant did not possess the key to her bedroom because "nothing of his was in there" and he was not permitted there without her permission. She admitted, however, that she and defendant had been engaged for six years and that defendant purchased an interest in her residence at 318 Ash Road in May 1994.
Blight acknowledged misrepresenting information on her application for public assistance in September 1992 by failing to disclose her trust account established by defendant. Blight also reluctantly conceded that defendant would occasionally deposit personal checks and paychecks into her bank account.
According to defendant, from 1982 to 1987, he resided at 321 Ash Road before selling the house for a profit of $1,264, which he kept in his strongbox. He also identified a deposited check in the amount $9,897.02 which he claimed was given to him by his mother following his father's death in February 1987. He said he withdrew the entire amount from the bank and kept it in his strongbox. He further identified a letter dated December 11, 1987, from an estate attorney which reflected a $2,310.46 advance on his inheritance following the death of his mother. Defendant claimed that he deposited that check, waited until it cleared, then withdrew the entire balance and added it to the money in his strongbox. When presented with his bank records obtained from Southern Ocean State Bank, he indicated that an initial deposit of $20,000 reflected in a statement constituted the bulk of his inheritance, which he gradually withdrew and kept in his strongbox. Finally, defendant testified that in July 1990 he established a trust account for Blight using $5,410.68 he had withdrawn from a pension plan.
He further maintained that the funds he had accumulated remained in his strongbox and that he would take the box with him wherever he went. Although he "never really completely felt safe" when he carried the box, he nonetheless believed it was "very safe" at Blight's house ...