On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Ind. No. 04-07-2643.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 10, 2007
Before Judges Coburn and Chambers.
Defendant appeals from his conviction by a jury for third-degree possession of a controlled dangerous substance (CDS) in violation of N.J.S.A. 2C:35-10(a)(1) (count four), third-degree possession of CDS with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) (count five), second-degree possession of CDS within 500 feet of public housing with intent to distribute in violation of N.J.S.A. 2C:35-7.1 (count seven), and second-degree eluding police in violation of N.J.S.A. 2C:29-2(b) (count eight). The court granted the State's motion for an extended sentence under N.J.S.A. 2C:44-3(a). On the eluding charge, defendant was sentenced to fifteen years, with five years of parole ineligibility. Counts four and five were merged into count seven, and for that count, he was given a concurrent sentence of ten years with a three year period of parole ineligibility. He was also assessed the requisite fees and monetary penalties. The jury acquitted defendant of fourth-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(5)(a) (count one), fourth-degree possession of a weapon in violation of N.J.S.A. 2C:39-5(d) (count two), and third-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(d) (count three).
The issues raised by defendant in this appeal include the question of whether the "hot pursuit" doctrine permitted the warrantless entry into his residence and seizure of evidence found there. Since the record presents sufficient exigent circumstances to allow the warrantless entry into the residence and seizure of the evidence found there in plain view, defendant's motion to suppress was properly denied. We affirm the conviction, but remand for resentencing in accordance with State v. Pierce, 188 N.J. 155, 168-69 (2006).
On March 29, 2004, several officers from the Newark police department observed a transaction that they believed to be an illegal drug transaction in which a woman handed money to the driver of a red Pontiac Grand Prix and received an object in return. The officers, who were in an unmarked vehicle, pulled up by the car; one officer exited the vehicle and approached the driver, later determined to be defendant. The officer identified himself as a police officer. Upon learning this, defendant rammed his car into the police vehicle and sped away at a high rate of speed, driving erratically, and going through several red traffic lights.
The police officers followed, but eventually lost sight of the red vehicle, although they were able to obtain its license plate number. This information was immediately relayed to the police dispatcher who then advised the officers that the vehicle was not reported stolen or missing and provided them with the name of the owner and her address. The police officers immediately drove to that address, and circled the housing complex several times. They then observed the vehicle they had been chasing go into the garage adjacent to the unit at the address they had been given. They did not see the driver of the vehicle nor, due to the configuration of the dwelling and the garage, could they see the driver exit the car and enter the apartment.
The police then knocked on the apartment door and announced "Newark Police, open the door." They heard a male voice reply "What the fuck you cops want? I am not going to fucking open my door." The officers demanded that the door be opened or they would kick it open. The person replied, "kick the fucking door in, because I'm not going to open it." The officers forced open the door. When conducting a protective sweep of the apartment, they saw in plain view an open safe with over $4,000 in loose currency, and on top of a bedroom dresser, they found a plastic bag with several vials of cocaine and a number of empty vials of the type used to package cocaine for street sale. Defendant had fled the apartment, but surrendered about a week later. The apartment and car belonged to defendant's girlfriend, and he lived in the apartment with her.
In this appeal, defendant contends that the following errors were made below:
The trial court erred in denying the defendant's motion to suppress.
A. There was no "hot pursuit" of the defendant, nor did the officers confront any exigency to require the immediate entry to the apartment.
B. Since the intrusion into the apartment was unlawful, the "plain view" doctrine to justify the discovery of the ...