On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 05-02-0239.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2007
Before Judges Lintner and Alvarez.
Following the denial of a motion to suppress drugs found on his person, defendant, Michael Grant, entered a conditional plea of guilty to the sixth-count charge of Passaic County Indictment No. 05-02-0239, possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a. He was sentenced, as recommended in the plea agreement, to a five-year term with two and one-half years of parole ineligibility. He appeals, and we find no merit to his arguments. R. 2:11-3(e)(2).
We need not recount in detail the facts pertaining to the crime. The police responded to an anonymous citizen's complaint that drugs were being sold at 236 Summer Street in Paterson.*fn1
Plainclothes officers Jack DeSalvo and Russ Curving responded. They parked their unmarked police vehicle several blocks away and approached the address on foot. As they approached defendant, who matched the citizen's description, was counting something in his hand. He looked up and asked, "[h]ow many you need?" The officers responded by pulling out their badges.
Defendant dropped the objects in his hand and ran down the driveway towards the rear of the building at 236 Summer Street. Curving picked up the objects, which he identified as crack cocaine, and both officers pursued defendant into the building where they found two other men, co-defendants Chay Wright and John Patterson, in the first floor apartment stuffing marijuana into plastic baggies. All three were placed under arrest.
Defendant told a different version. According to defendant, he was walking down the street when the two officers approached, ordered him to put his hands on the car, patted him down, handcuffed him, and put him in the police vehicle. The officers then entered the first floor apartment at 236 Summer Street and came out ten minutes later with Wright and Patterson, whom he had never met before. He denied having any drugs on his person or dropping them to the ground and he suspected that the officers were looking for evidence that they could use against him.
Defendant presented testimony from Juanita Avent and Wright. Avent was in the second floor apartment at 236 Summer Street looking out the window. She saw the officers approach defendant and heard defendant ask what was the problem. The officers ordered defendant to lean up against the car, searched him, and placed him in the car. Defendant had nothing in his hands and he did not run from the police.
Wright, Avent's boyfriend and the father of her three children, testified that the officers, without knocking first, entered the front room of the first floor apartment where he and Patterson were packaging marijuana. Wright claimed that he did not know defendant and defendant was not chased into the apartment. Both defendant and Wright had prior criminal convictions.
The Law Division judge credited the testimony of Officer DeSalvo and found defendant's and Avent's versions not credible. He disbelieved Wright's testimony that defendant never entered the first floor apartment. He noted Avent's relationship to Wright and their motivation to give a contrary version of the police pursuit of defendant into the first floor apartment. On appeal, defendant asserts the following points:
POINT I THE COURT ERRED IN DENYING THE SUPPRESSION MOTION BECAUSE THE POLICE OFFICER'S TESTIMONY WAS NOT AS CREDIBLE AS THAT OF THE DEFENSE WITNESSES.
POINT II BECAUSE THE JUDGE OVERLOOKED IMPORTANT MITIGATING CONSIDERATIONS, THE BASE TERM SHOULD BE ...