On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Approved for Publication June 26, 1996.
Before Judges Baime, Villanueva, and Bilder. The opinion of the court was delivered by Baime, J.A.D.
The opinion of the court was delivered by: Baime
The opinion of the court was delivered by BAIME, J.A.D.
A jury found defendant guilty of possession of cocaine (N.J.S.A. 2C:35-10a(1)), possession of heroin (N.J.S.A. 2C:35-10a(1)), possession of heroin with intent to distribute (N.J.S.A. 2C:35-5a(1) and b(3)), receiving stolen property (N.J.S.A. 2C:20-7), and possession of a firearm by a person convicted of robbery (N.J.S.A. 2C:39-7b). On the weapons conviction, defendant was sentenced as a persistent offender to an extended term of twenty years with a ten year parole disqualifier. On the convictions for receiving stolen property and possession of heroin with intent to distribute, defendant was sentenced to terms of five years with two and one-half year parole disqualifiers. The sentences were to run consecutively to each other and to a prison term defendant was serving in Pennsylvania. The remaining convictions were merged.
On appeal, defendant contends (1) his motion for a new trial was improperly denied, (2) he was denied his Sixth Amendment right to counsel at the hearing on his motion for a new trial, (3) the trial court erroneously denied his motion to suppress evidence, (4) his custodial statements were involuntary and should have been excluded, (5) his prior convictions were remote and should not have been admitted for impeachment purposes, (6) the trial court erred by refusing to sever the count charging possession of a firearm by a person convicted of robbery, (7) the prosecutor's delay in supplying him with a certificate of operability respecting the firearm found in his possession denied him a fair trial, (8) "other crimes" evidence was erroneously admitted, (9) his automobile was improperly seized, and (10) the sentences imposed were manifestly excessive. We agree that the trial court erred by compelling defendant to represent himself in his motion for a new trial. Defendant's remaining arguments (points three through ten) clearly lack merit. R. 2:11-3(e)(2). I.
The facts were hotly disputed at trial. The State's evidence disclosed that on November 17, 1992, police officers from Atlantic City and Galloway Township obtained a warrant from a Superior Court Judge to search the premises located at 617 County Boulevard in Galloway. The residence at that location belonged to defendant's parents. In addition to authorizing a search for "any controlled dangerous substance," the warrant specifically authorized the search of "Leroy Doe" and "Peanut Doe."
The warrant was issued on the basis of an affidavit submitted by Detective Brett Foster of the Atlantic City police. In that affidavit, Foster related that during the week of November 3 to November 9, 1992, he had received information from an informant, whose reliability had been demonstrated in the past, that narcotics were being sold at the residence by "two black males in their 40's named Leroy and Peanut . . . ." During the same week, the police conducted a "controlled buy" in which the informant purchased heroin from Peanut (later identified as defendant's brother, Isaac) in the presence of defendant. Finally, the officer stated in the affidavit that he personally conducted a surveillance of the property in the course of which he observed several people visiting the house, remaining for a brief period of time, and then leaving. In the officer's opinion, such behavior was "indicative of narcotics activity."
At approximately 8:30 p.m. on the evening of November 17, the officers executed the warrant. As they approached the driveway, they observed defendant and two other people attempting to leave in a 1977 Cadillac. Several officers stopped the vehicle, ordered the occupants to exit, and searched them. The search of defendant's person yielded two packages of cocaine from one of his pants pockets.
While the vehicle's occupants were being searched, a second group of officers forcibly entered the house. *fn1 The occupants in the house included defendant's elderly parents, several children, and Isaac. Once inside, the police handcuffed the adult males and directed all of the occupants into the living room. Defendant and the other two suspects seized outside were also brought into the house and confined to the living room. As soon as all were present, one of the detectives verbally informed the occupants of their Miranda *fn2 rights.
The police then proceeded to question Isaac in one of the bedrooms. Following that interrogation, the officers brought defendant into the bedroom by himself. One of the officers told defendant that he was a "target" of the search warrant, at which point defendant stated that he had to be "straight" with them. He then informed the police that he had drugs in his pants. A search of defendant's person revealed twelve packets of heroin hidden in the waistband of his underwear.
Defendant was then returned to the living room, and the police conducted a thorough search of the house. In one of the bedrooms, they found a yellow pad which was subsequently identified through expert testimony as a drug ledger. In a second bedroom, the police recovered a quantity of empty glassine baggies used for packaging drugs and a loaded .45 caliber Ruger handgun hidden under a mattress. After unloading the weapon, one of the officers took it into the living room and asked the occupants about its ownership. Defendant initially denied ownership of the gun. When no one else claimed it, however, the officer threatened to arrest all of the occupants and charge them with unlawful possession of a handgun. At that point, defendant acknowledged that the gun was his. Defendant admitted he had no permit for the weapon and claimed to have purchased it recently from a Hispanic male in Atlantic City for two bags of heroin. Testimony at trial revealed that the weapon had been stolen in August 1992 from an apartment in Paterson, New Jersey.
Defendant's witnesses at trial, including his parents, nephew, and a close friend, claimed that the police never informed the occupants of the house of their Miranda rights. In addition, they contended that defendant was never taken into a bedroom for individual questioning.
Defendant testified in his own defense. He denied being informed of his rights and making any inculpatory statements concerning the drugs. He also claimed the police had no warrant when they entered the premises and had planted the cocaine recovered from his person while he was outside the house. He further asserted the police found the empty glassine baggies in an abandoned vehicle in the backyard. Defendant disclaimed any knowledge concerning the gun. He contended that he admitted owning it ...