On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0561.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2008
Before Judges R. B. Coleman and Simonelli.
After the denial of his motion to suppress, defendant Jonny Londonsarrozola entered into a negotiated plea to first-degree possession of a controlled dangerous substance (CDS) (cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1). In accordance with the plea agreement, Judge Heimlich imposed a seven-year term of imprisonment with a two-year period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate assessments, penalties and fee.
On appeal, defendant raises the following contentions.
THE JUDGE ERRED IN DENYING THE MOTION TO SUPPRESS AS THERE WAS NO REASONABLE BASIS FOR THE SEARCH OF DEFENDANT'S PERSON, THE SEARCH OF DEFENDANT'S HOME WAS A DIRECT PRODUCT OF THAT UNLAWFUL SEARCH AND THE DEFENDANT'S CONSENT WAS INVALID.
A. The Search of Defendant's Person Was Unlawful.
B. Defendant's Consent to Search His Home Was the Product of Coercion and the Evidence Recovered Therefrom must Be Suppressed.
We reject these contentions and affirm.
The following facts are summarized from the record. Shortly before 7 p.m. on December 18, 2005, members of the Union County Prosecutor's Office were executing a search warrant at 2020 Grier Avenue, Elizabeth (the property) regarding a narcotics investigation unrelated to defendant. Detective Oliver Kalebota, who had participated in approximately one hundred narcotics investigations, arrived at the property to retrieve some documents necessary to conduct a consent search of a storage facility connected to the investigation.
According to Kalebota, after exiting the property, he saw defendant cross the street and walk toward the property. As defendant approached, Kalebota asked him where he was going. Defendant replied that he was going to his mother's house. After the detective told defendant that he could not go into the property, defendant responded that his mother did not live there. Kalebota did not know what defendant was trying to do, and defendant's behavior confused him. When he looked down at a white plastic bag defendant was carrying, defendant said that he could search it. Defendant then "dumped [the bag's contents] into the street." Defendant complied with Kalebota's instruction to stop. He picked up the items and then emptied the contents of the bag onto the trunk of Kalebota's patrol car. The detective saw cell phones and two Western Union money wire transfers to Colombia, a country known to the detective as associated with narcotics activity. Kalebota asked defendant about the wire transfers, to which defendant responded that he had friends in Colombia.
At that point, defendant began "acting really strange" and "extremely nervous," and "[h]e was breathing heavy, fidgeting, shaking a little, and . . . started to say that he wanted to get down on his knees . . . and cry[.]" Kalebota stopped defendant when he began to kneel down. The detective then saw defendant reach towards his waistband "as if he was grabbing for something." Believing defendant might be armed, and fearing his safety and for that of a nearby lieutenant, Kalebota explained that he: grabbed [defendant's] right hand that he was reaching with, I believe grabbed with my left hand, pulled it away from his ...