On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-08-0556.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt and Sapp-Peterson.
Defendant Andres Melendez appeals his conviction for two counts of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). He claims that evidence seized from his motor vehicle should have been suppressed because it was the product of an illegal stop and warrantless seizure, the court limited his ability to cross-examine the arresting officer, improperly introduced his prior convictions, and imposed a disproportionately severe sentence. We reject all of defendant's arguments and affirm his conviction and sentence.
The conviction arose out of a July 11, 2004 surveillance conducted in North Plainfield by the Somerset County Prosecutor's Office Organized Crime and Narcotics Task Force, along with the North Plainfield Police Department. The evidence presented at the suppression hearing, if credited, revealed that Sergeant Francisco Roman (Roman), a veteran of law enforcement at that time for five years, with training and experience in narcotics investigations, was stationed in an unmarked car near the corner of Duer and Craig Streets. The area was known for foot traffic and narcotics activities. Around 11:45 p.m. that evening, Roman observed a burgundy Grand Prix approach the area. A man, later identified as defendant, exited the driver's seat of the vehicle and walked in front of the car. The car remained running and the headlights remained illuminated. Roman observed defendant quickly approach an unidentified male, and based upon his training and experience, Roman at that point believed that he was witnessing a "hand-to-hand narcotic transaction."
Defendant re-entered the vehicle and proceeded to drive up Duer Street, which eventually became Madison, and then made a right turn onto West Front Street, "basically . . . [circling] the block." As the vehicle approached a Sunoco gas station, Roman activated the lights on his unmarked vehicle as defendant's vehicle was coming out of Somerset Street near the gas station. The vehicle entered the gas station but did not stop. The vehicle traveled around a gas pump. Roman observed defendant throw an item over his right shoulder towards the back seat. Other officers, who Roman had radioed, arrived and defendant then stopped his vehicle.
Roman exited his vehicle and approached defendant's car. As he did so, he noticed defendant was making "furtive" movements with his hands toward the center console. At that point, Roman told defendant to turn off the car and step out of the vehicle. Once out of the vehicle, Roman advised defendant that he had been stopped as part of a narcotics investigation. Defendant immediately volunteered to Roman that "[he] did not buy any drugs." Roman then told the front passenger to exit the vehicle and the rear passenger to keep her hands where they could be seen.
At that point, Roman leaned into the vehicle with a flashlight and illuminated the console where defendant had been reaching. Roman immediately observed a small glassine wax fold, which he knew was common packaging for heroin. Roman then placed defendant under arrest for possession of CDS. Roman made defendant place his hands on the back of the car and attempted to remove the suspected heroin. It was then that some of the suspected heroin fell out onto the floor and Roman noticed that "Anaconda," a popular brand name for heroine, was stamped on the fold.
While the backseat passenger remained seated, Roman then used his flashlight to illuminate the rear compartment of the car, where he had observed defendant throwing an object. Roman observed a Newport cigarette box on the floor behind the driver's seat. He then opened it and found two baggies which he suspected, based on his training and experience, contained cocaine. Defendant was arrested. Roman then learned from backup that the two passengers had warrants out for their arrest and they were also were arrested. At the time of her arrest, the backseat passenger had a crack pipe on her person. The suspected drugs were later tested and proved to be heroin and cocaine, respectively.
On August 5, 2004, a Somerset County grand jury indicted defendant with two counts of third-degree possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10(a)(1). The two passengers were not charged.
Prior to trial, defendant moved to suppress the cocaine and heroin found in his car as the fruits of an illegal search. The motion judge, in denying the motion, found,
Here the presence in an area which is frequented [by] drug users, the lateness of the hour is not in itself evidence of criminal activity. Here the Court does find the detective had a reasonable, articulable suspicion to pull over the defendant. He's there on a covert surveillance, he's an experienced narcotic detective, he observed activity that appears to be a hand-to-hand drug exchange in a high narcotic area and observes the defendant drive away immediately thereafter, follows the vehicle, attempts to have the vehicle stopped so he can do a further investigation, notices the vehicle does not stop immediately, instead they are circling the gas station. Observes further furtive activity by the defendant, observes the defendant turn and toss what turns out to be a cigarette box into the back seat. Observes the defendant as he approaches the vehicle with police starting to surround the vehicle at this point, the defendant is not turning towards the officer who is approaching the car and calling out but rather turns towards the console. Officer's concerned for a weapon. Asks the defendant to step from the vehicle. The defendant makes certain statements with regard to drug activity. And the officer using his flashlight looks into the gear shift area and observes what appears to be a heroin fold. And at that point does not retrieve the heroin fold but instead tells the defendant he is under arrest for drug activity.
I find that there is probable cause for the officer's objective reasonable basis and probable cause for the officer to do what he did on that particular night given the totality of the ...