On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-04-0539.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Grall.
Defendant James Dawson appeals from a final judgment of conviction and sentence. The jury found defendant guilty of third-degree possession of a controlled dangerous substance, heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1)and b(3) (count two); and third-degree possession of heroin with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three). The trial judge denied defendant's motion for a new trial, which was based on a claim of error in the grand jury proceeding. The judge merged defendant's convictions on count one and two into his conviction on count three. Based on defendant's prior conviction for possession of a controlled dangerous substance with intent to distribute, the judge sentenced defendant to a ten-year extended term of incarceration, five years to be served without possibility of parole, N.J.S.A. 2C:43-6f. Appropriate assessments, fines and monetary penalties were also imposed.
On appeal defendant presents the following claims: the court erred in denying his motion to suppress the heroin he possessed; the State's evidence, without the heroin, is inadequate to support his conviction; and his sentence is manifestly excessive and the product of judicial fact-finding that violated his right to a jury trial.*fn1 For the reasons stated below, we affirm defendant's conviction but remand for resentencing in accordance with State v. Thomas, 188 N.J. 137 (2006).
The following factual statement is drawn from the police report detailing the observations of the officers who conducted the investigation that culminated in defendant's arrest. At approximately 5:45 a.m. on December 8, 2003, officers of the Paterson Police Department and the Passaic County Prosecutor's Office set up to conduct a surveillance of an apartment building located at 332 Summer Street in Paterson, an area known for illegal drug trade. They watched defendant pace back and forth between the corner of 16th Avenue and the building. One man and one woman approached defendant, spoke to him and remained outside the building. At 6:00 a.m., the driver of a new model Toyota Camry stopped across the street from the building. Defendant went to the car and reached inside. After less than a minute, defendant returned to the building and went inside. The man and woman who had spoken to defendant followed him, stayed for a minute and left the building and the area. Defendant remained inside.
After watching other persons enter and promptly leave the building, the officers called for back up. Detective Challice went through the open door of the building and inside. He saw defendant in the hallway on the first floor above ground level. Defendant was looking at his hand, in which he held what appeared to Challice to be bundles of packages of heroin. Upon seeing the detective, who had his badge displayed, defendant jammed the bundles into his pants pocket.
Challice arrested defendant and recovered 140 glassine envelopes, which consisted of two fifty-envelope bricks and one partial brick that held forty envelopes. Challice also recovered eighty dollars in cash. A field test of the substance in one of the envelopes was positive for heroin.
Because neither the State nor the court had received defendant's motion to suppress, the trial judge considered the police report, which defendant had received, as the State's statement of facts in support of the search executed without a warrant. See R. 3:5-7(c); State v. Green, 346 N.J. Super. 87, 90-91 (App. Div. 2001) (considering a similar use of a police report in deciding a suppression motion). Defendant, who had not filed a counter statement of facts or a certification, did not dispute the facts. His attorney argued that the facts were not sufficient to give Detective Challice reason to enter the building or seize the bundles defendant jammed in his pockets. Without reference to the circumstances, the attorney did no more than assert that the defense contested Detective Challice's claim that he was able to identify what defendant held as bundles of heroin when he saw them in defendant's hand.
On the basis of the evidence included in the police report, the judge denied the motion to suppress. He concluded that the officer had an adequate basis to seize defendant and the drugs in his pocket.
We reject defendant's claim that the judge erred in denying his motion to suppress without a hearing. Because defendant did not "place material facts in dispute" an evidentiary hearing was not required. Green, supra, 346 N.J. Super. at 90. A "defendant's assertion that he denies the truth of the State's allegations," is not sufficient to place a material fact in dispute. Id. at 91.
We also reject defendant's claim that the search was unlawful. The detective's observations of defendant's conduct and the conduct of those who entered and promptly left the apartment building gave the officer a reasonable and articulable basis to suspect criminal activity warranting further investigation. State v. Pineiro, 181 N.J. 13, 20 (2004). There is no question that the detective had a right to enter the hallway of the open apartment building to conduct that investigation. See State v. Jordan, 115 N.J. Super. 73, 75-76 (App. Div.), certif. denied, 59 N.J. 293 (1971). From that lawful vantage point, the detective saw bundles of heroin in the defendant's hand and watched him jam the bundles into his pocket. Under the totality of these circumstances, the detective had probable cause to arrest and search defendant -- i.e., knowledge of facts that would lead a person of reasonable caution to believe that defendant was committing a crime and had the evidence of that crime in his pocket. See State v. Moore, 181 N.J. 40, 46 (2004) (discussing the standard for probable cause to arrest and search). The search incident to that lawful arrest did not require a warrant. Id. at 45. Accordingly, the judge's decision to deny the motion to suppress was proper.
Because the heroin was properly admitted into evidence at trial, defendant's claim that he is entitled to a new trial lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The officers involved in this investigation gave testimony that was consistent with the information included in the police report that we previously described. Additional evidence was presented. The building was situated within 1000 feet of a school. The envelopes taken from defendant contained heroin. Defendant, who testified at trial, acknowledged that he possessed the heroin. He explained that he was an addict. He said he found the "stash" in the building and took it for his own personal use. The evidence amply supported defendant's ...