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State v. Zapata

February 4, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
URIEL ZAPATA, DEFENDANT-APPELLANT.



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

Approved for Publication February 4, 1997. As Amended April 21, 1997.

Before Judges Michels, Muir, Jr. and Kleiner. The opinion of the court was delivered by Michels, P.j.a.d.

The opinion of the court was delivered by: Michels

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Following a joint jury trial with co-defendants Fernando Hernandez (Hernandez) and Germon O. Rodriguez (Rodriguez), defendant Uriel Zapata was found guilty of possession of cocaine in a quantity of one-half ounce or more but less than five ounces with intent to distribute, a crime of the second degree, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (First Count), possession of cocaine with intent to distribute within 1,000 feet of school property, a crime of the third degree, in violation of N.J.S.A. 2C:35-7 (Second Count), and possession of cocaine, a crime of the third degree, in violation of N.J.S.A. 2C:35-10a(1) (Third Count). *fn1 Defendant's motion for a judgment of acquittal was denied. The trial court merged defendant's convictions for possession of cocaine with intent to distribute within 1,000 feet of school property under the Second Count and possession of cocaine under the Third Count into his conviction for possession of cocaine with intent to distribute under the First Count and committed defendant to the custody of the Commissioner of the Department of Corrections for five years, with a three-year period of parole ineligibility. In addition, the trial court imposed a $2,000 Drug Enforcement and Demand Reduction Penalty, a $50 laboratory fee, and a $30 Violent Crimes Compensation Board penalty and suspended defendant's driver's license in New Jersey for two years. Defendant appeals.

I.

Following defendant's indictment, he and co-defendants Hernandez and Rodriguez moved to suppress the evidence seized pursuant to a warrantless search of the motor vehicle in which defendant was a passenger. According to the proofs at the suppression hearing, on April 16, 1991, at approximately 7:15 p.m., Detective Joseph M. Martin of the Englewood Police Department received a dispatch regarding an anonymous call taken by an Englewood Police Dispatcher. Detective Martin was assigned to the Neighborhood Stabilization Squad, which dealt primarily with narcotic enforcement. The dispatch informed Detective Martin that a few male Hispanics in a tan Chevy were distributing cocaine in a parking lot at Vinnie's Tavern in Englewood. Detective Martin was also given the number of the New York license plate. Upon receiving the dispatch, Detective Martin responded to the area of Vinnie's Tavern.

While Detective Martin was en route, Detective Edward Murray radioed that he had left Vinnie's Tavern's parking lot and was traveling on the street on which the tavern was located. Detective Murray radioed that he was behind a tan Chevy with New York license plates, which matched the description received from the dispatcher. Detective Martin soon observed the vehicle. He cut his vehicle in front of the suspect vehicle and ordered the driver to pull into a parking space along the street. Detective Murray's vehicle blocked the rear of the suspect vehicle.

Detectives Murray and Martin ordered the three passengers to exit the vehicle and directed them to place their hands on the hood of the vehicle. Hernandez was the driver, defendant was the front seat passenger, and Rodriguez was the rear seat passenger. As Rodriguez exited the vehicle, Detective Martin saw a small, plastic, glassine-type of envelope with a red stripe on it, which appeared to contain cocaine. The envelope was protruding from the crease of the rear seat near where Rodriguez had just been sitting. Based on his experience and training and the information provided by the police dispatcher, Detective Martin suspected that the envelope contained cocaine. He immediately seized the envelope as evidence.

Detective Martin then arrested defendant and the two co-defendants. Detective Martin did not find any other evidence of weapons or narcotic paraphernalia. However, he found $1,013.30 in cash on Hernandez, $24.15 in cash on Rodriguez and $136.46 in cash on defendant. He proceeded to attempt to advise the defendants of their rights verbally, but they claimed that they did not understand English. Defendant, Hernandez, and Rodriguez were then transported to Police Headquarters.

Detective Martin further testified that at the time defendant and the two co-defendants were ordered out of the vehicle, they could not have driven away and they were not free to leave. Detective Martin also testified that seven-eighths of the envelope was visible on the seat, but one-eighth was hidden in the back seat crease. Detective Martin impounded the vehicle and notified the Bergen County Police K-9 Unit because he felt that, based on the anonymous call, the evidence found, and his experience, more narcotics were in the vehicle. A police dog indicated that drugs were located in the left vent of the air-conditioning unit. When the unit was removed, Detective Martin found a brown paper bag containing a total of thirty-seven plastic bags of suspected cocaine. Detective Martin testified that he did not see the brown bag in the air-conditioning unit at the scene and that he did not find any other evidence when he conducted a search at the scene.

At the Conclusion of the suppression hearing, Judge Minuskin in the Law Division found that Detectives Martin and Murray, based upon the anonymous call and the corroborated observation of the suspect vehicle,

had reasonable and probable cause to stop the vehicle as authority to be able to investigate and to determine whether or not a crime was being committed, and upon observing in connection therewith based upon that which was said to them the Court believes that they had the right to order the occupants to exit suspecting that this vehicle based on an anonymous tip contained contraband.

The trial court also upheld the seizure of the plastic glassine envelope, the arrest of defendant and his co-defendants, and the seizure of the brown bag containing thirty-seven plastic bags of suspected cocaine hidden in the air-conditioning unit and denied the motion to suppress.

II.

The facts adduced at the suppression hearing were corroborated at trial. Detective Murray testified that after receiving the dispatch message he observed a Brown Chevy Celebrity with New York plates and three passengers leaving the parking lot of Vinnie's Tavern. The vehicle was registered to Elid Montola of New York City. Efforts to locate Elid Montola were unsuccessful. Defendant was determined to be a resident of New York City, Hernandez, a resident of Palisades Park, and Rodriguez, a resident of Englewood.

The substance recovered from the vehicle was determined to be cocaine, totaling 0.75 ounces (approx. 21 grams) and worth up to $1,800. Robert Dodd (Dodd), an Investigator with the Bergen County Narcotic Task Force, testified that the cocaine recovered was possessed with an intent to distribute. Dodd's opinion was based on the amount of cocaine found, the way it was packaged, the New York City registered vehicle, the number of people in the vehicle and their origins, the lack of drug paraphernalia, and the amount of money and its denominations.

Detective Murray testified on recross-examination that he had arrested one of the defendants subsequent to the April 16, 1991 incident. Defense counsel immediately moved for a mistrial. Having determined that Detective Murray was referring to Hernandez, the trial court granted the motion as to Hernandez, but denied the motion as to defendant and Rodriguez. The trial court instructed the jury that Detective Murray had not arrested either of the other defendants before or after April 16, 1991. He further instructed the jury that Hernandez's ...


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