On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-08-2351 and 05-12-2867.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Cuff and Lihotz.
Defendant Tramaine Hardiman was charged in Essex County Indictment Numbers 05-12-2867 and 06-08-2351. Indictment Number 05-12-2867, returned by an Essex County Grand Jury on December 1, 2005, charged defendant with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); and third-degree possession of CDS (cocaine) within 1,000 feet of school property, N.J.S.A. 2C:53-7 (count three).
In an unrelated incident, Essex County Indictment Number 06-08-2351 charged defendant with two counts each of third-degree possession of CDS (cocaine and heroin), N.J.S.A. 2C:35-10(a)(1) (counts one and four); third-degree possession of CDS (cocaine and heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (counts two and five) and third-degree possession of CDS (cocaine and heroin) within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count three and six).
Regarding Indictment Number 05-12-2867, defendant filed a motion to suppress the evidence obtained without a warrant. R. 3:5-7. The motion was denied. Thereafter, on August 7, 2006, defendant entered a conditional guilty plea to all charges, reserving his right to appeal the denial of his suppression motion. R. 3:9-3(f). On August 18, 2006, defendant entered into a plea agreement with respect to the charges in Indictment Number 06-08-2351. Defendant agreed to enter a guilty plea to counts five and six in exchange for a sentencing recommendation of an extended seven-year period of incarceration with a forty-two month period of parole ineligibility, to run concurrent to his sentence on Indictment Number 05-12-2867 and the dismissal of the remaining charges. Sentencing on both indictments was held on September 29, 2006. On Indictment Number 05-12-2867, the sentencing judge sentenced defendant to five years imprisonment with a three-year period of parole ineligibility. On Indictment Number 06-08-2351, defendant was sentenced as set forth in the plea agreement to be served concurrently with the prior sentence. The remaining charges were dismissed. Applicable fines and assessments were also imposed.
On appeal, defendant presents a single issue for our consideration relating to his motion to suppress evidence, as follows:
SINCE THE SEARCH OF THE CUP CONTAINING COCAINE WAS NOT BASED ON PROBABLE CAUSE AS ESTABLISHED BY CREDIBLE EVIDENCE, DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE AND FEDERAL LAW WERE VIOLATED, AND HIS MOTION TO SUPPRESS EVIDENCE SEIZED WITHOUT A WARRANT SHOULD HAVE BEEN GRANTED. U.S. CONST. AMENDS. IV AND XIV; N.J. CONST., (1947), ART. I, PAR. 7.
The facts supporting the charges in Indictment Number 05-12-2867 were presented by the testimony of the sole witness, State Investigator Max Henry of the Division of Criminal Justice at the June 19, 2006 suppression hearing. The facts are not in dispute.
On August 17, 2005, Investigator Henry and Irvington Township Police Officer Tony Farmer were on routine patrol, wearing plain clothes, and driving an unmarked police vehicle in an area of Irvington known for narcotics and other criminal activity. At 21st Street and 17th Avenue, the officers viewed what they believed was a hand-to-hand drug sale. A woman, holding money in her hand, spoke to defendant. Defendant took the money and then reached into a white cup, which he was holding in his hand, and handed something to the woman. The officers exited their vehicle and walked toward defendant. The woman saw the officers and "took off." When defendant saw the police, who displayed their badges, he "had a look on his face" and then calmly placed the white cup on the ground. Investigator Henry testified that he peered into the cup where defendant had placed it and saw a black bag containing "vials," which were later confirmed to contain crack cocaine. He signaled to Officer Farmer to arrest defendant and then more closely examined the contents of the cup. Defendant possessed $432.
On cross-examination, the defense highlighted the inconsistencies between Investigator Henry's testimony and his written police report filed after defendant's arrest. First, the report stated that when Investigator Henry looked into the white cup, he saw a black plastic bag; the vials of cocaine were not discovered until the black plastic bag was removed. Second, the report states that defendant was arrested after Investigator Henry removed the cocaine vials from the black plastic bag located in the cup, while his trial testimony stated that he did not pickup the cup to examine its contents until after he had signaled for defendant's arrest.
The trial court denied defendant's motion to suppress. The judge determined the State satisfied its burden under the plain view exception to justify ...