On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-06-1420; 04-12-3713.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and S.L. Reisner.
A jury convicted defendant Hassan Cromer of the following crimes: two counts of third-degree possession of a controlled dangerous substance (cocaine and heroin), N.J.S.A. 2C:35-10a(1); two counts of third-degree possession of a controlled dangerous substance (cocaine and heroin) with the intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and b(3); three counts of third-degree "school-zone" drug offenses, N.J.S.A. 2C:35-7; and three counts of second-degree possession of drugs with the intent to distribute and distribution of narcotics within a public property zone, N.J.S.A. 2C:35-7.1. He appeals from the conviction, and from the aggregate sentence of eight years in prison with four years of parole disqualification.*fn1 We affirm the conviction and the sentence.
The following evidence was presented at a hearing on defendant's motion to suppress evidence. According to Detective Jason West, a member of the Newark Narcotics Enforcement Task Force, at about 8:00 a.m. on September 20, 2004, he and his partner Officer Turzani were conducting a surveillance operation at the James Baxter Terrace housing complex, in response to citizen complaints about drug activity. The complex consists of a series of multi-family dwellings arranged around courtyards.
From a distance of eighty to eighty-five feet away, West observed defendant standing in the courtyard of one of the buildings, at 192 Orange Street. He saw defendant waving to passersby, as though indicating that he had something to sell. West observed a man later identified as John McDonald enter the courtyard and speak to defendant. He then saw McDonald give defendant money. Defendant went up the steps of 192 Orange Street, opened the front door, turned around and reached up toward the top of the inside door frame. Defendant withdrew a small black box, took something out of the box and handed it to McDonald, and then replaced the box in the top of the door frame.
West alerted backup officers, who arrested McDonald, searched him and found an envelope of heroin marked with the name "Rough Riders." Based on this finding, the police then immediately arrested defendant. West then went to the front door of 192 Orange Street, opened the unlocked front door which led to a publicly-accessible entryway and stairs leading up to the apartments, and reached up to the top of the door frame. There, in a space between the door frame and the wall, he found two small black key holder boxes and several vials of cocaine. In the boxes he found several envelopes of heroin marked "Rough Riders" and some with a different label.
Based on this testimony, Judge Fullilove denied defendant's motion to suppress the evidence, concluding that the boxes and the cocaine vials were abandoned in a public place. He also concluded that defendant had no reasonable expectation of privacy in the public entryway of the multiple dwelling at 192 Orange Street. The judge further reasoned that "based on the observations of Detective West, the interaction between McDonald, [and] the finding of [the drugs on McDonald]," there was probable cause to detain defendant "and to . . . go to the location that this defendant was seen going to."
The matter then proceeded to trial. In his initial instructions to the jury, Judge Fullilove told them that the attorneys' opening statements and summations were not evidence.
West's trial testimony was consistent with his testimony at the suppression motion. He told the jury that he observed defendant "flagging down people in the area" or "calling people over to him." He saw McDonald hand defendant "paper currency" and saw defendant enter the apartment building and retrieve "a black object from the top of the door," remove items, and replace the black box. After McDonald was arrested, West searched the door frame and found the black boxes and the vials of cocaine. West also testified that the location where defendant was arrested was within 1000 feet of a "working, operating elementary school," and that the Baxter Terrace complex was public housing.
Officer Martin testified that he arrested McDonald and found him to be in possession of a bag of heroin marked "Rough Riders." After he arrested McDonald, Martin detained defendant, "while Detective West recovered the drugs" from the door frame of the apartment building. He testified that the drugs Detective West recovered from the door frame were also marked "Rough Riders." On cross-examination, Martin admitted that he did not personally observe West recovering the drugs from the door frame, because Martin was busy detaining defendant.
After Detective Martin testified, the State moved into evidence the key holders, the heroin packets retrieved from the key holders, the heroin packet recovered from McDonald and the vials of cocaine. Without defense objection, the State also moved into evidence the Forensic ...