On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, 01-03-0431.
Before Judges Kestin, Winkelstein and Lario.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
A five-count indictment charged defendant, Hason Cleveland, also known as John Yera, with third-degree possession of heroin and cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5b(3) (count two); second-degree possession of heroin with intent to distribute while within 500 feet of a public park, contrary to N.J.S.A. 2C:35-7.1 (count three); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5b(3) (count four); and second-degree possession of cocaine with intent to distribute within 500 feet of a public park, contrary to N.J.S.A. 2C:35-7.1 (count five). A co-defendant, Ebony Brown, was also named in the indictment.
Defendant subsequently moved to suppress the evidence on which the indictment was predicated. Following a hearing, the motion judge reserved decision, eventually denying the motion for reasons expressed in an oral opinion.
Thereafter, defendant entered a conditional plea of guilty to count five of the indictment. In exchange for the plea, the State had agreed to dismiss the remaining charges. The plea agreement did not call for a sentencing recommendation from the State, leaving the sentence"open ended." The trial court sentenced defendant to a five-year term of imprisonment, to be served concurrently with a sentence defendant was to receive for a criminal matter then pending against him in New York. The trial court also suspended defendant's driving privileges for six months and ordered payment of the penalties, fees and assessments provided by statute.
On appeal, defendant raises a single issue:
DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE POLICE OFFICERS' ENTRY INTO THE ROOM OCCUPIED BY DEFENDANT WITHOUT A SEARCH WARRANT CONSTITUTED AN ILLEGAL SEARCH AND SEIZURE PURSUANT TO THE NEW JERSEY CONSTITUTION.
The pertinent facts as found by the trial court were adequately supported by the evidence developed at the suppression hearing, commanding our deference. See State v. Locurto, 157 N.J. 465, 470-72 (1999); State v. Johnson, 42 N.J. 146, 160-62 (1964); State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993). Other background facts are essentially undisputed.
Sometime in early November 2000, the Asbury Park Police Department learned that defendant had an outstanding parole arrest warrant in New York, relating to his involvement in a shooting incident. A few days thereafter, Patrolman Phillip J. Montgomery received information from a confidential informant regarding defendant's location.
The informant called Montgomery at about 7:55 a.m. on November 7, 2000, reporting that defendant was"staying" with a woman [.arrowhorizex] later identified as Ebony Brown [.arrowhorizex] at the Sterling Inn in Asbury Park. According to this confidential source, the two were sleeping in room 304 at the time of the call. Montgomery understood from the informant that Brown was the room's"legal tenant." The informant also related that defendant had been selling drugs at the Inn and was in possession of a gun.
Montgomery testified that he was familiar with both defendant and the Sterling Inn. He described the Inn as a haven for drug dealers and stated that he had encountered defendant there in the past.
After speaking with the confidential informant, Montgomery and several other officers proceeded to the Sterling Inn to execute the arrest warrant. When they arrived, the informant, who was apparently also renting a room at the Inn, unlocked the front entrance door and permitted the police to enter. Once inside, Officer Ashe headed towards room 304 on the third floor while the remaining officers, including Montgomery, attempted to locate the Inn's management.
Montgomery knocked on the door to the management office, but did not receive a response. Unable to locate any of the Inn's employees, Montgomery decided to join Ashe on the third floor. He discovered Ashe standing near the door to room 304. Montgomery noted that the door was ajar, seemingly because of a malfunctioning lock mechanism. Montgomery testified that, without pushing the door open further, he peered into the room through the five or six-inch opening, and observed a black male and female sleeping in a bed less than six feet away. Montgomery testified that he immediately identified the black male as defendant.
Accompanied by Ashe, Montgomery entered the room with his gun drawn. He identified himself as a police officer, informed defendant that he was a"wanted fugitive" in New York, and placed defendant under arrest. Montgomery helped defendant don a pair of pants. Before doing so, however, he searched the pants and found $1086 ...