On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 04-07-1026; 04-07-1027; 04-01-0101; 05-02-0158.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 28, 2007
Before Judges Cuff and Lisa.
Following denial of his motion to suppress, defendant Orion Byrd entered guilty pleas to four indictments. On Indictment Nos. 04-01-0101 and 04-07-1026, defendant pled guilty to third degree possession with intent to distribute a controlled dangerous substance (CDS) (heroin) on or near school property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7. On Indictment No. 04-07-1027, he pled guilty to second degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. He also pled guilty to third degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-5b(3), on Indictment No. 05-02-0158. Judge Cantor sentenced defendant to a ten-year term of imprisonment with a five-year period of parole ineligibility on Indictment No. 04-07-1027 (certain person not to have weapons). On the school zone offenses, Indictment Nos. 04-01-0101 and 04-07-1026, defendant was sentenced to five-year terms with three-year period of parole ineligibility, with the sentence on I-04-01-0101 to run consecutive to the terms imposed on I-04-07-1027 and I-04-07-1026, and the sentence on I-04-07-1026 to run concurrent to I-04-07-1027. On I-05-02-0158, defendant was sentenced to a concurrent flat five-year term. Defendant's aggregate sentence on the four indictments is fifteen years imprisonment with eight years parole ineligibility. The appropriate fees, penalties, assessments and revocation of driver's license were also imposed.
Three confidential informants (CIs) advised New Brunswick police that defendant was selling drugs and maintaining his stash in a car parked behind a house owned by the Brown family. The CIs identified the location of the house and the area where defendant sold drugs.
Police commenced surveillance of the area. Using binoculars, an undercover officer observed defendant unlock and enter the car parked in the yard behind the Brown house. The officer saw defendant unlock the glove compartment and remove a bag from which he removed what appeared to be bundles of heroin. Defendant then locked the car and walked away.
The surveilling officer lost sight of defendant and instructed other officers to intercept defendant. They did so; a frisk revealed no drugs, but $796 and the key to the car.
Another officer promptly went to the car. Looking through the window, he saw a bag of heroin on the floor and packaging from a brick of heroin. The officer spoke to Mrs. Brown, who advised him that the car did not belong to her and might belong to someone in prison. She said the car had been parked in her yard for some time and she wanted it removed. Police later learned that the last prior owner of the car was a woman and that the car registration had not been renewed in two years.
A detective entered the car using the key taken from defendant. He found an empty bag on the floor, which he believed had once contained heroin, along with drug packaging material. In the glove compartment, the detective found a brown paper bag containing a sandwich bag, which held thirty bags of heroin packaged in bundles and a small bag of marijuana.
On appeal, defendant raises the following arguments:
BECAUSE THERE WERE NO EXIGENT CIRCUMSTANCES WHICH JUSTIFIED AN EXCEPTION TO THE REQUIREMENT THAT THE POLICE OBTAIN A SEARCH WARRANT, THE ENTRY INTO THE INFINITY WAS UNCONSTITUTIONAL AND THE TRIAL COURT ERRED IN DENYING ...