On appeal from Superior Court of New Jersey, Law Division, Union County, No. 05-12-1310.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Wefing and Parker.
After the trial court denied his motion to suppress, defendant entered a negotiated plea of guilty to one count of possession of a controlled dangerous substance, cocaine. The trial court sentenced defendant to three years on probation, conditioned upon defendant serving 364 days in the Union County jail. N.J.S.A. 2C:45-1(e). Defendant has appealed, challenging the denial of his motion to suppress. R. 3:5-7(d). After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction but remand for resentencing.
One witness testified at the suppression hearing, Police Officer Anthony Gural of the Elizabeth Police Department. Officer Gural was on routine patrol in a marked vehicle on September 27, 2005; his partner was driving. At approximately one o'clock in the morning they passed a gas station which included a convenience store. Some five to six individuals were congregated in the area. The officers knew the area to be a high-crime area known for narcotics trafficking and, although they had received no specific complaints that evening, they had, in the past, received complaints from the attendants and others of people congregating there. The officers pulled into the station with the intent to disperse the assembled group.
Officer Gural testified that defendant approached the patrol car and, leaning on the car, asked whether the officers did not have anything better to do. Gural said that he was able to see a clear plastic Ziploc baggie in the left front pocket of defendant's shirt and vials within the baggie. Gural stepped out of the patrol car and walked around it toward defendant. As he approached defendant he got a better view of the baggie and the vials within it. Officer Gural grabbed the baggie which contained seven glass vials and placed defendant under arrest.
Defendant raises the following issues on appeal:
POINT I THE ONLY ITEM IN PLAIN VIEW AT THE TIME THE OFFICER SEARCHED DEFENDANT WAS A ZIPLOCK BAGGIE, WHICH, IN THE ABSENCE OF OTHER SUSPICIOUS CIRCUMSTANCES, DID NOT PROVIDE THE OFFICER WITH PROBABLE CAUSE TO ASSOCIATE THE BAGGIE WITH CRIMINAL ACTIVITY. ACCORDINGLY, THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED. U.S. CONST. AMEND. IV; N.J. CONST. (1947) ART I, PAR. 7 POINT II THE COURT BELOW DENIED DEFENDANT A FAIR AND OBJECTIVE HEARING ON THE MOTION TO SUPPRESS BY INTERFERING WITH DEFENSE COUNSEL'S CROSS-EXAMINATION OF THE POLICE OFFICER AND ENGAGING IN A LEADING EXAMINATION OF THE WITNESS, THEREBY BECOMING AN ADVOCATE FOR THE STATE TO ESTABLISH PROBABLE CAUSE FOR THE SEIZURE. U.S. CONST.
AMEND. XIV POINT III THE SENTENCE ORDERED IN THE JUDGMENT OF CONVICTION FAILS TO COMPORT WITH THE SENTENCE IMPOSED BY THE COURT AT THE SENTENCING PROCEEDING AND VIOLATES STATE LAW. N.J.S.A. 2C:43-2b(2)
The premise of defendant's first argument is that the officer initially saw only the plastic baggie, not the vials within it. That premise rests upon the police report Officer Gural prepared after the arrest. Within that report, Officer Gural wrote:
As Williams bent over to speak to us through the drivers side window, I observed a clear zip lock baggie in his shirt breast pocket.
The baggie I observed in Williams' pocket is commonly used to carry glass vials used for CDS distribution. We exited our vehicle, approached Williams and grabbed the baggie that was now partially hanging out of Williams' pocket. The baggie contained 7 glass vials containing a white powder, suspected cocaine.
Defendant contends that there is a discrepancy between this report and Gural's testimony at the motion to suppress, where he said that he observed the vials within the baggie before he seized it. Gural was, however, cross-examined about this issue at the motion to suppress and asserted that he merely forgot to include within his report that he saw the vials as he was seated in the police car and as he approached defendant. The trial court accepted Gural's explanation and found his testimony ...