On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-02-00255; 05-01-0059; 05-01-0062.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 6, 2008
Before Judges Lihotz and Messano.
Defendant Corey Ashford appeals from his criminal conviction following a guilty plea entered pursuant to a plea agreement on certain narcotics charges contained in three indictments. Defendant filed a motion to suppress the drugs seized in a warrantless search incident to the arrest of co-defendant Kenneth Shields. Defendant's pleadings adopted the factual testimony provided by Detective Sutton of the New Brunswick Police Department's anti-crime unit, who testified before the grand jury based upon observations from his surveillance conducted from a concealed location. Specifically, defendant's motion challenged the validity of the warrantless search, arguing an absence of exigent circumstances.
In arguments presented on the return date, defendant asserted he was not contesting drugs were found on Shields, but rather that he was the person who sold those drugs to Shields, as attested by Detective Sutton. This challenge was not set forth in the pleadings.
The motion judge reviewed the grand jury testimony of Detective Sutton along with the pleadings filed and stated:
In this case the officers allegedly observed a drug transaction where the defendant  spit bags [of cocaine] out of his mouth into his hand, handed them from his hand to Mr. Shields' hand. Mr. Shields handed [defendant] money and put the bags into his pocket. Clearly[,] there is a degree of urgency because the . . . alleged buyer  was about to leave the scene and the alleged seller could have immediately fled. There is a reasonable belief that the contraband was to be removed absolutely . . . .
This is a drug case, and in this case I believe that the circumstances as outlined in the grand jury testimony are such that while the facts are denied by the defendant [ ], [he] would have the opportunity to . . . have those witnesses cross-examined at trial to probe the reliability of their testimony.
However, the testimony that the police officers gave . . . before the grand jury do set forth the basis for exigent circumstances, and a direct observation made by a police officer is a factor that the court may consider in determining whether or not probable cause exists, State v. Flowers, 328 N.J. Super. 205[, 218 (2000)]. And the arrestee can be searched without a warrant, U.S. v. Robinson, 414 U.S. 218,  235[, 94 S.Ct. 467, 477; 38 L.Ed. 2d 427, 441 (1973)]. And a search without a warrant incident to an arrest is certainly reasonable and permitted.
In this case[,] the court has considered the totality of the circumstances found. The police officers' observations, if true, provided a reasonable basis for suspecting that defendant  as well as co-defendant Shields were engaged in a buy and sell drug transaction, that . . . co-defendant Shields had in his pocket alleged contraband given to him in return for cash by defendant  and there was a reasonable basis for the search.
A warrant [for the search] was not appropriate under the circumstances, the immediacy of the event, the opportunity of the two individuals to leave the scene, the fact that Mr. Shields was in fact leaving the scene, and the possibility that any evidence would have been disposed of or destroyed. Under these circumstances the motion is denied.
When the matter was next listed for review, defendant pled guilty to the following charges: (1) Indictment No. 05-01-0059 -third-degree distribution of CDS on or near school property, N.J.S.A. 2C:35-7 and second-degree distribution of CDS on or near a public building, N.J.S.A. 2C:35-7.1; (2) Indictment Number 05-01-0062 - fourth-degree contempt (violation of a drug restraining order), N.J.S.A. 2C:29-9; and (3) Indictment Number 05-02-00255 - third-degree possession of CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7 and second-degree possession with intent to distribute CDS on or near a public park, N.J.S.A. 2C:35-7.1.
Defendant provided a factual basis to support his plea. The court inquired further and after being satisfied the plea was made knowingly, voluntarily and intelligently, the court accepted the plea. Thereafter, defendant was sentenced, pursuant to the terms of the recommendation made in the plea agreement, to an aggregate of eight years in ...