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State v. Josey

April 23, 1996

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEITH JOSEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Approved for Publication April 23, 1996. As Amended June 13, 1996.

Before Judges King, Landau and Humphreys. The opinion of the court was delivered by Humphreys, J.A.D.

The opinion of the court was delivered by: Humphreys

The opinion of the court was delivered by

Humphreys, J.A.D.

The police observed the defendant and a co-defendant selling cocaine on the sidewalk outside of the defendant's apartment. After observing a number of sales, the police attempted to arrest them. The defendant fled into his apartment. The police entered his apartment and arrested him.

The defendant's motion to suppress evidence was denied. He later pled guilty to the following charges: possession of a controlled dangerous substance (cocaine) (third degree) (count one), contrary to N.J.S.A. 2C:35-10a(1); possession of a controlled dangerous substance with intent to distribute (cocaine) (third degree) (count two), contrary to N.J.S.A. 20:35-5a(1) and 2C:35-5b(3); possession of a controlled dangerous substance with intent to distribute on or near school property (cocaine) (third degree) (count three), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-7; distribution of a controlled dangerous substance (cocaine) (third degree) (count four), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); distribution of a controlled dangerous substance on or near school property (cocaine) (third degree) (count five), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-7; possession of a controlled dangerous substance with intent to distribute (marijuana) (fourth degree), (count six) contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(12); possession of a controlled dangerous substance with intent to distribute on or near school property (marijuana) (third degree) (count seven), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-7; obstructing the administration of law or other governmental function (fourth degree) (count eight), contrary to N.J.S.A. 2C:29-1; and resisting arrest (fourth degree) (count nine), contrary to N.J.S.A. 2C:29-2.

He was sentenced as follows:

On count 3 to a prison term of 10 years with a 5 year parole bar; on count 5 to a term of 5 years with a 3 year parole bar to run concurrently with count 3; on count 7 to a term of 5 years with a 3 year parole bar to run concurrently with count 3; on count 8 to a term of 18 months with a 9 month parole bar to run consecutively with count 3; and on count 9 to a term of 18 months, with a 9 month parole bar to run concurrently with count 8. Also imposed were various penalties and fees. In addition, his driver's license was suspended for a total of eighteen months, and money and property seized from him at the time of arrest were forfeited.

The defendant appeals pursuant to R. 3:5-7(d), He contends that evidence should have been suppressed because the police entered his apartment without a warrant. The Middlesex County Prosecutor argued at the hearing before the motion Judge that the entry was justified. In his brief before this court, the prosecutor changes his position. He now concedes that the entry was improper. Nevertheless, he maintains that most of the convictions should be affirmed.

After a thorough examination of the record, we hold that the police entry into the apartment did not violate the defendant's constitutional rights. Hence, the motion to suppress was properly denied. The convictions are affirmed.

I

Two police officers, Det. William Oels and Sgt. Paul Schuster, testified at the suppression hearing. Neither the defendant nor his co-defendant testified. Superior Court Judge Lefelt made the following findings.

On December 11th, 1993 in the morning Detective Oels observed approximately four drug transactions involving Mr. Josey and Mr. Jones [a co-defendant]. He was concerned about the small bags being sold, since they can, apparently, be easily swallowed.

While Oels observed Josey changing clothes throughout his observation, he did not see the stash and could not determine if it was, in fact, kept in the house, in Josey's apartment or in his house.

After observing a larger plastic bag containing, allegedly, too many packets to be swallowed passed from Mr. Josey to Mr. Jones, Oels radioed for the backup officers to move in.

At this time Oels observed Mr. Josey walking back toward the entrance to his house. Mr. Josey's house entrance was in an alley on the side of his house.

Oels also saw Mr. Jones throw the bags that Josey had given him to the ground as the officers arrived. These bags were picked up by the arresting officers.

As Schuster arrived in the back of the alley, which contained Josey's entranceway, Mr. Josey was not in sight.

Schuster saw Jones being cuffed at this time. He did not see Jones throw the items to the ground.

Schuster pounded on the door and demanded entry. He heard footsteps running up the stairs. He broke down the door, and entered the house. There was a struggle with Josey, as Mr. Josey apparently tried to dump a plastic bag with white powder . . . [into] a sink. This bag was, according to Schuster, completely empty at the ...


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