On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 03-05-0999-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Winkelstein and Baxter.
In May 2004, defendant was tried and convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), count one,*fn1 but the jury was unable to reach a verdict as to count two, second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(2).*fn2 Defendant was retried and convicted on the second count in September 2004. At trial, he admitted possessing cocaine for his own use, but he denied that he possessed it with the intent to distribute it.
At sentencing, the court merged count one into count two, and imposed a sixteen-year custodial term with an eight-year period of parole ineligibility. The judge also imposed appropriate fees and penalties.
On appeal, defendant challenges the trial court's denial of his suppression motion; he asserts that the court violated his constitutional right to compulsory process by precluding him from calling expert witnesses to support his claim that he possessed the CDS for his own personal use rather than for distribution; and he claims the trial court failed to give an appropriate limiting instruction concerning the $1221 in cash that was found in his possession at the time of his arrest and failed to instruct the jury that it could reject stipulations that were read into the record. Defendant also challenges his sentence.
We conclude that defendant's challenge to the denial of his suppression motion is without merit and that the trial judge properly denied his motion. We agree, however, with his argument that his constitutional right to compulsory process was violated when the court precluded him from calling experts to testify concerning his drug addiction. Consequently, we reverse defendant's conviction for possession with the intent to distribute. The remaining issues are moot.
The charges against defendant arose out of events that occurred in December 2002. On December 19, Freehold Borough patrolman Christopher Colaner submitted an affidavit to obtain a warrant to search apartment #219 at 40 Jackson Street, Rugmill Towers, in Freehold, believed to be rented to defendant. The affidavit stated that, based on information gained from a confidential informant, police surveillance, and department information, police believed Rugmill Towers to be a "documented drug trafficking area within the Borough of Freehold." The affidavit stated:
This officer is . . . aware of resident information indicating drug parties taking place inside the building, as well as known drug users selling stolen property door to door, then purchasing CDS prior to leaving the complex. Resident information and officer observations have shown the use of lookouts in and around the building lobby, with the lookouts being able to give warning to any persons involved in illegal activity tak[ing] place within the complex. Further investigation has revealed drug users to enter the building from the front door during non-security officer hours and to access rear fire doors in order to [sic] aforementioned stairwells to travel to and from the seller's apartment.
The affidavit further related that defendant was "known to be a convicted CDS dealer and target of numerous police investigations," and he was "an associate of several other main CDS dealers in and around Freehold." Apartment #219 was commonly known throughout the Rugmill Towers Complex as the "complex party spot and location to connect with CDS dealer(s)." Colaner had observed "known and convicted CDS dealers" who were "currently active in the sales of CDS" present at the apartment with defendant. Defendant had resist[ed] police arrest in the past, while having used physical force during a past arrest in Freehold Township. On repeated occasions, [defendant] has resisted police arrest in Freehold Borough while attempting to elude patrols. Some of [defendant's] associates are also known to be involved in carrying guns and to frequent his apartment.
The affidavit described controlled buys of CDS from defendant by a confidential informant. "[Defendant] conducts the distribution of CDS from his apartment, . . . keeping his main stash at his apartment and [traveling] with the negotiated amount to the meet location."
Colaner requested a no-knock warrant based on his "concern for the safety of the officers executing the Search Warrant as well as [to] prevent the destruction of evidence." The affidavit stated that
[Drug enforcement officers] are specifically aware of numerous gun calls being currently handled within this jurisdiction with investigations pointing toward drug dealers having been possessing and firing these weapons. The specific location holds a threat of possible evidence destruction, obstruction, resisting, and use of weapons. The use of lookouts could also compromise pre-warrant execution while making notification to the dealer of a police presence.
Your deponent is also concerned that if a no-knock warrant is not issued, officers will be forced to stand fast in a wide open corridor that provides no cover or concealment for awaiting officers. The target residence has only one entrance and exit, while a knock and announce could prepare the target to take the defensive measures and cause law enforcement officers to enter through the one doorway that becomes a high level danger zone. Your deponent is also aware of [defendant] having resisted arrest on several previous encounters with police and to have physically struggled with those arresting officers.
Based on the affidavit, the court issued a no-knock warrant.
On December 19, 2002, at approximately 10:45 p.m., Colaner and approximately eight other officers executed the warrant. Colaner entered the apartment first. He observed four persons, including defendant, seated in the living room, and ordered them to get down on the floor, where other officers secured them. Colaner read defendant his Miranda*fn3 rights and searched his person, discovering a "large sum" of money in his pocket.
When Colaner asked defendant if drugs were in the apartment, he responded that cocaine was in the kitchen. He pointed out a child's "sippy cup" in the kitchen cabinet next to an electronic digital scale. Detective Sergeant Ward opened the cup and discovered two bags of what was later determined to be 37.62 grams of cocaine. He seized the cup and the scale. Defendant was arrested and transported to police headquarters, where police seized the money, totaling $1221, from his person.
After re-advising defendant of his Miranda rights, Detective Michael George obtained a signed statement from him. Defendant admitted that he had "30 grams of powder cocaine" worth about "a thousand dollars" in his apartment, stored in the kitchen cabinet. When asked whether he sold the drugs, he answered, "No. I wouldn't call it that."
Prior to the first trial, defendant moved to suppress the evidence seized as a result of the search warrant. He claimed the affidavit submitted by Colaner misled the court, in that it contained incorrect information, and failed to establish a reason for a no-knock warrant as opposed to a standard warrant. The judge denied defendant's motion, finding that a no-knock entry was required to prevent the destruction of the evidence, to protect the officer's safety, and to effectuate the arrest or seizure of evidence. The residence was known to be associated with drug dealers. Furthermore, the officer was aware that the defendant was involved in transporting and street sales of narcotics and that he had a criminal history for resisting arrest.
Additionally, the officer had reason to suspect that other persons seen loitering in the hallways outside the residence, who were known to be convicted drug dealers, were being used as lookouts. Therefore, the officer had reason to fear for the safety of the officers executing a search warrant and also to be concerned that evidence might be destroyed prior to their being able to make entry into the apartment.
Finally, there is an indication that people seen frequenting the apartment in the past had ...