On appeal from Superior Court of New Jersey, Law Division, Essex County, 06-06-2182-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Collester.
Defendant Calvin Boyd appeals from the denial of his motion to suppress evidence by Judge Nancy Sivilli. We affirm.
At the suppression hearing on October 20, 2006 Lieutenant Tyrone Broner of the Newark Police Department testified he and other police officers responded to the St. James Towers at 440 Washington Street, a multi-family high rise building, to investigate anonymous complaints that a security guard was selling drugs in the lobby and in apartment 11A. When they arrived, the officers proceeded to the eleventh floor. Broner knocked on the door of apartment 11A while the other officers stood off to the side about five feet from the door. A male voice answered, "Who?" Broner identified himself as "T" and said "I want Diesel." The defendant opened the door holding a plastic bag containing small white glassy envelopes which Broner believed contained heroin. Broner again asked for "Diesel." At seeing the other officers in the hallway, defendant shoved the bag in his waistband and started to close the door. Broner stuck his foot in the doorway, grabbed the defendant, pulled him out into the hallway, and grabbed the plastic bag. Later testimony confirmed the bags contained both heroin and cocaine.
The defense witnesses gave an entirely different version of events. Lerlene Walker testified that she lives in apartment 6C of St. James Towers and has known defendant since he was a little boy. She said that on the night of November 10, 2005 the defendant visited with her before he started his shift as a night security guard for the building. He left her apartment at about 11 p.m. to go to the eleventh floor apartment of Stephanie Givens, his girlfriend and the mother of his children. Ms. Walker said that later she was standing in a stairwell when she saw the police arrest the defendant and pat him down. She heard Givens yell and saw two police officers enter the apartment. About fifteen minutes later three officers left the apartment, which led Ms. Walker to surmise that one was in the apartment before defendant was arrested.
Stephanie Givens lived in apartment 11A with her four children. She said that at about 11:30 p.m. on November 10, 2005, she was in her bedroom when a man suddenly appeared in the doorway and asked her for drugs. She had no idea how the man got into her bedroom and said she told him she had no drugs and to leave the apartment. She said defendant had been visiting with her and left to take out her garbage. He reappeared in the custody of the police officers. Givens said the police told her to sit in the living room while the other officers went into her bedroom. After they left with defendant, Givens claimed that $375 in cash was missing from her bedroom.
Defendant testified he worked overnight security for St. James Towers on the midnight to 8 a.m. shift. He said that he was in Givens' apartment that night about to take the garbage to the trash compactor when there was a knock on the door. He answered, and a man asked defendant if he had cocaine. After defendant said he did not have drugs, the undercover officer pushed the door open and entered the apartment followed by two other officers. Defendant further testified that after the men identified themselves as police officers they patted him down and found sixteen or seventeen bags of heroin in his pocket. One of the officers later told him they would call DYFS to take the children and lock up Givens unless he told them where there were other drugs. He then admitted there was cocaine in his waistband.
On October 27, 2006 Judge Sivilli gave her oral decision denying the defendant's motion to suppress. She found that the drugs recovered by the police were in plain view of Lieutenant Broner when the defendant opened the apartment door and that the plastic bag was seized in the common hallway and not in the apartment. She found Broner's testimony to be credible but the testimony of the defendant and his witnesses to lack credibility.
On November 3, 2006 the defendant entered a negotiated plea of guilty to two counts of the indictment against him, namely possession of cocaine and heroin with the intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7. On January 9, 2007, he was sentenced to an aggregate term of four years with a two-year period of parole ineligibility. On appeal defendant makes the following argument:
BRONER'S TESTIMONY WAS NOT CREDIBLE AND THE DRUGS WERE NOT FOUND IN "PLAIN VIEW." THE SEARCH AND ARREST VIOLATED DEFENDANT'S FOURTH AMENDMENT RIGHTS AND THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.
We affirm substantially for the reasons set forth by Judge Sivilli in her oral opinion of October 27, 2006. The factual and credibility findings of Judge Sivilli are well supported by substantial credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999). As the judge found, Broner was lawfully present in the eleventh floor common hallway when he saw the plastic bag containing drugs, and defendant had no legitimate expectation of privacy in the hallway. State v. Johnson, 171 N.J. 192, 206-08 (2002); State v. Stanton, 265 N.J. Super. 383, 387 (App. Div. 1993). There was also probable cause for Broner to ...