On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-11-1627.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2009
Before Judges Parker and Yannotti.
Defendant John D. Highland appeals from a judgment of conviction entered on November 14, 2005 after he pled guilty to third degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); and third degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7 and -5a. After the appropriate mergers, defendant was sentenced on Count Three to a term of six years subject to three years parole ineligibility.
The charges here arose out of a routine surveillance operation in New Brunswick. New Brunswick Police Lieutenant Paul Schuster was observing an area of high drug activity on Remsen Avenue on September 22, 2004 at 6:15 p.m. when he saw defendant walking down the street. Schuster recognized defendant because he had known him for about twenty years. Schuster then saw a woman he knew as Brenda Sutton speak to defendant. After Sutton walked away, defendant shouted to her and walked in the other direction. Schuster later observed a man identified as Steven Slaughter speaking to Sutton, and the two of them walked toward defendant. After a short conversation with defendant, Sutton walked away, leaving defendant with Slaughter. Defendant had a plastic sandwich bag in his hand, which he showed to Slaughter. Schuster knew from his experience with narcotics arrests that drugs are often kept in such bags. He notified the backup unit and they immediately approached defendant and reported to Schuster that defendant had the plastic bag in his fist, but they could see the top of it. Schuster could not see defendant at that point because his view was blocked by the backup unit. When the officers retrieved the plastic bag, they found seventeen bags of cocaine inside it. When defendant was searched, the police found another 188 bags of cocaine and $24 in cash on his person.
Defendant moved to suppress the evidence on the ground that the police lacked probable cause to detain him and seize the bag in his hand. At the suppression hearing, Schuster testified that Sutton appeared to be under the influence at the time she had the conversation with defendant. He testified further that he did not actually see any money change hands or anything transferred from defendant to Sutton or Slaughter. Defendant argued at the hearing that the only thing Schuster actually observed was an intoxicated Sutton speaking to defendant for twenty to twenty-five seconds and defendant having a plastic bag in his hand when he was seized by the police.
The trial court found that "based upon the totality of the circumstances the State has met its burden to prove by a preponderance of the evidence that the search was permissible and not constitutionally invalid," and concluded that "Schuster... had probable cause to believe that a drug transaction was about to occur."
Defendant appeals and argues:
THE MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED INSOMUCH AS DEFENDANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A SIX-YEAR TERM WITH THREE YEARS OF PAROLE INELIGIBILITY BECAUSE A [PROPER] ANALYSIS OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
Defendant contends that the police lacked "probable cause to believe that an offense was committed or was about to be committed.... There was no exchange of money; indeed, there was no exchange of ...