July 2, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SALIK GREEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-03-0266.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 12, 2007
Before Judges Stern and Coburn.
Following the denial of his motion to suppress evidence and of his motion for reconsideration, defendant entered into a negotiated guilty plea to two counts of an indictment charging him with possession with intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and -5b(2) (count two), and possession with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three). Count one of the indictment, charging possession of cocaine was dismissed, and the trial judge imposed concurrent sentences of eight years with forty-eight months to be served before parole eligibility.*fn1
On this appeal to us, defendant argues:
AS THE CONFIDENTIAL INFORMANT DID NOT PROVIDE ANY INFORMATION TO THE JUDGE WHO ISSUED THE SEARCH WARRANT, THE TRIAL COURT'S RELIANCE ON THE AFFIDAVIT OF DETECTIVE GONCALVES WHICH CONTAINED NO PERSONAL OBSERVATIONS OF DEFENDANT OR THE ALLEGED DRUG DEAL, PRODUCED AN UNRELIABLE RESULT IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N. J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.)
THE CONVICTION FOR POSSESSION OF COCAINE (COUNT ONE) SHOULD HAVE MERGED INTO THE CONVICTION FOR POSSESSION OF COCAINE WITH THE INTENT TO DISTRIBUTE (COUNT TWO). (Not Raised Below.)
The State acknowledges that the school zone offense merges into the possession with intent conviction, provided that the parole ineligibility term survives. See State v. Dillihay, 127 N.J. 42 (1992).
The search was pursuant to a search warrant issued by a Superior Court judge, and was directed to the person of defendant and a particular apartment.
The affidavit of Detective Alvaro Goncalves described controlled buys of cocaine by an informant who had previously provided information resulting "in the arrest of 10 individuals" and the seizure of CDS. Because the warrant could not be executed while a separate investigation was pending, a second affidavit was executed after another controlled buy was made. The warrant resulting in the search then issued on September 25, 2002.
Judge John Malone denied defendant's motion to suppress in an oral opinion, and thereafter denied his motion for reconsideration in a written opinion. We affirm the denial of the motion to suppress substantially for the reasons stated by Judge Malone.
Defendant argues the affidavit "cannot be deemed 'reliable' as the only real witness to the event did not give a sworn statement or make him/herself available to the court for questions," and "[w]ithout any meaningful information from the person who actually participated in the alleged illegal activity to establish probable cause deprives defendant of due process and a fair trial." No cases are cited for these propositions, and understandably so. The law is clearly to the contrary where, as here, the affidavits detailed the four controlled purchases and the basis for finding the informant to be reliable. See, e.g., Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L.Ed. 2d 527 (1983); State v. Novembrino, 105 N.J. 95, 122-29 (1987); State v. Perry, 59 N.J. 383, 387-392 (1971).
The conviction is affirmed, but the matter is remanded to the Law Division to enter an amended judgment on the merged offenses.