On appeal from the Superior Court of New Jersey, Law Division, Essex County, 03-07-2578.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2007
Before Judges A. A. Rodríguez, Collester and Lyons.
Following a jury trial, defendant, Rickford Thom, was convicted of third degree possession of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); second degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(2); third degree possession of cocaine with intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35-7; fourth degree possession of marijuana, N.J.S.A. 2C:35-10a(3); third degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5b(11); third degree possession of marijuana with intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35-7. Defendant moved unsuccessfully for a new trial. After appropriate merger of the offenses, the judge imposed pursuant to N.J.S.A. 2C:43-6f, governing persistent drug offenders, an extended ten-year term with a five-year parole disqualifier for the possession of cocaine with intent to distribute conviction. All other sentences were to run concurrent. We affirm the convictions, but vacate and remand the sentences.
The pertinent facts are as follows. The arrest stems from the March 28, 2003 execution of a search warrant*fn1 at the first floor apartment of a multi-family dwelling located on 16th Street in East Orange by officers from the East Orange Police Department and the Essex County Prosecutor's Office Narcotics Task Force. This dwelling is within 1,000 feet of Gordon Parks Academy.
Prior to trial, defendant moved to suppress his statement to police about where he lived. He also moved to disclose the identity of two confidential informants who assisted police in obtaining the search warrant. One informant was working with the Prosecutor's Office and the other with the East Orange Police Department. Defendant received discovery regarding the Prosecutor's informant, but not the East Orange informant. In addition, defendant sought an adjournment of the trial until all discovery regarding both confidential informants was provided.
The State opposed these requests asserting that the defense was on notice that there was a second confidential informant based on discovery already provided. Moreover, there were two controlled purchases, from someone other than defendant, conducted by the Prosecutor's informant and a similar controlled purchase conducted by the East Orange informant. Therefore, the State argued that it had enough information to obtain a search warrant, independent of the East Orange informant. The State did not plan on introducing at trial any information regarding the controlled purchases conducted by the East Orange informant.
The judge denied defendant's applications, finding that there was sufficient probable cause in the affidavit for the search warrant even without the paragraph regarding the East Orange informant. Therefore, defendant's right to file a motion to suppress was not prejudiced.
At trial, Essex County Prosecutor's Investigator Robert O'Neil, testified that he and several officers executed the search warrant at the 16th Street apartment. There was no answer at the door. The officers knocked on the window. There was no response. Detective John Hernandez opened the front door with a battering ram. O'Neil entered the apartment first, followed by Investigator Joseph DiLauri and other officers. In the meantime, Investigators Thomas Chung and Daniel Francis positioned themselves in the backyard of the dwelling in order to secure the rear perimeter. Chung saw defendant running towards the rear window. Chung announced to defendant, "Police, get on the ground." Defendant turned around and headed back towards the front of the apartment.
According to O'Neil, upon entering the apartment, he saw defendant come out of the rear bedroom and enter the living room. O'Neil and DiLauri ordered defendant to "get down to the ground." Defendant stood there and put his hands up. The officers handcuffed defendant and patted him down. Defendant was wearing a black backpack. Detective John Hernandez searched the backpack and found: 1) a paper bag containing eighty-nine baggies of marijuana; 2) a plastic bag with fifty "jugs" (red tinted glass vials) of cocaine; 3) a plastic bag with approximately seventy grams of marijuana; and 4) a bunch of plastic baggies and empty jugs. A search of defendant's person revealed $126 in his pocket.
At the time of the executed search warrant, defendant's two-year old son was present in the apartment. After the premises were secured, a woman arrived at the apartment and identified herself as the child's mother. The child was released to her.
Defendant was transported to the Essex County Narcotics Task Force office. The officers conducted a systematic search of the apartment. They found, in the closet of a rear bedroom, a black plastic bag with approximately twenty-one grams of cocaine. DiLauri found a trap in the closet floor, which contained a bag with ten jugs of cocaine. O'Neil found two shoeboxes containing cocaine, one with thirty-six jugs and another with forty-one jugs. Other officers found in the rear bedroom: letters bearing the names of Shaneeca Williams and James Florence; packing materials and currency in a dresser; as well as drug paraphernalia, including a digital scale, a glass pot with cocaine residue on it, a cell phone with a digital diary and a surveillance monitor (showing the front porch of the house) connected to a camera pointing out of the front window. Chung conducted field tests, which confirmed that the substances found were cocaine and marijuana.*fn2
At the Task Force's headquarters, defendant was given Miranda*fn3 warnings orally and in writing. Defendant stated that he resided at the 16th Street, first floor apartment.
At trial, Detective Reginald Holloway of the Essex County Sheriff's Department Bureau of Narcotics, testified as an expert in the field of street level trafficking of illicit narcotics. Holloway opined, based upon the amount of drugs and paraphernalia found and the manner in which they were packaged, that the amount of drugs and paraphernalia confiscated from defendant were possessed with the intent to distribute. With regard to the scale that was recovered from defendant's apartment, Holloway opined that, "the scale would be something, an item that would be utilized in the packaging, the weighing and packaging of the narcotics that are going to be distributed." With regard to the closed circuit camera system, Holloway opined that ordinarily he believes the camera would be present for security purposes. However, the camera system found in the context of the other evidence suggests that the camera was used "as a lookout for the individual . . . inside the location to make them aware of any  presence of law enforcement officers or  the competition."
Defendant presented only one witness, his mother, Leslie Thom. She stated that her son lived at 7th Street, not 16th Street. She acknowledged that she was not present during the execution of the search warrant and declared that she loved her son.
At the conclusion of the trial, the judge charged the jury that if it found that defendant attempted to flee; it might infer from the attempted flight a guilty state of mind. The judge ...