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State v. Kirk

January 27, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELSY KIRK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-07-968.

The opinion of the court was delivered by: Per Curiam

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2009

Before Judges R. B. Coleman, Sabatino, and Simonelli.

Defendant Kelsy Kirk appeals from the judgment of conviction dated December 5, 2005, and entered following a trial by jury between July 12 through 26, 2005, in the Law Division, Middlesex County.

The jury found defendant guilty of third-degree possession of the CDS, cocaine, contrary to N.J.S.A. 2C:35-10a(1); third-degree possession of CDS, cocaine, with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1); fourth-degree possession of the CDS, over fifty grams of marijuana, contrary to N.J.S.A. 2C:35-10a(3); third-degree possession with intent to distribute CDS, more than one ounce of marijuana, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(11); fourth-degree possession of drug paraphernalia with intent to distribute, contrary to N.J.S.A. 2C:36-3. We affirm the judgment of conviction and sentence.

The State applied for, and was granted, an extended-term sentencing pursuant to N.J.S.A. 2C:43-6f based upon defendant's prior CDS related convictions. Defendant was sentenced to an aggregate custodial term of ten years imprisonment with a three year period of parole ineligibility. This appeal ensued.

The facts established at trial include the following. On April 4, 2002, Sergeant John Quick of the New Brunswick Police Department conducted a surveillance operation on defendant's apartment located at 188 Rutgers Street as a result of a confidential informant's report that there was narcotic activity at this address. To corroborate this information, the previous week police had conducted a controlled drug purchase from defendant in which a confidential informant participated. Additionally, more than one citizen informant had contacted the police regarding defendant's narcotic activity.

Sergeant Quick began his surveillance at approximately 10:00 a.m. and set up the operation in a vacant basement apartment with video equipment to monitor the hallways and exterior of the building. This particular operation was set up specifically to monitor defendant's residence, apartment B5. At approximately 11:30 a.m., Quick observed defendant exit apartment B5 and leave the building. Quick testified that he reported this to his superior, Lieutenant Schuster, with the understanding that Schuster was going to apply for a search warrant. Quick then left the building. Meanwhile, Schuster applied for, and was granted, a search warrant for apartment B5. Quick returned to the surveillance location in the apartment building later that afternoon at approximately 2:00 p.m. At 3:00 p.m. Quick observed defendant return to apartment B5. Defendant did not appear to be carrying anything. Defendant left the apartment approximately five minutes later and was soon after arrested by a back-up unit. No drugs or money were found on defendant's person.

Quick and the back-up unit officers executed the search warrant on apartment B5. Six small, red ziplock bags of marijuana were found in the living room. Throughout the apartment, numerous discarded plastic bags were found that had the corners cut off of them.*fn1 A shoebox containing a gram scale and two identification cards with defendant's photograph, but in an alias name, were also found. Various items belonging to defendant were found about the apartment, including clothing, newspaper clippings, bills and invoices. In the freezer, a brown paper bag was retrieved containing approximately five ounces of cocaine. The bag of cocaine was warm to the touch and had no frost or ice on it. Also in the freezer, $11,000 in cash was found in two ice-encrusted Eggo boxes, along with twenty-three ice encrusted plastic bags of marijuana. A loaded Glock nine millimeter handgun was found underneath the kitchen sink, and two bulletproof vests, similar to police issue, were found elsewhere.

In total, 5.23 ounces of cocaine, 3.2 ounces of marijuana, and $12,027 in cash were seized from apartment B5. Although the apartment was leased to Maria Medina, the landlord had given Medina a second set of keys and was introduced to defendant by Medina. Defendant was also known by other residents to reside in apartment B5 with Medina.

Defendant raises the following issues on appeal:

I. THE AFFIDAVIT OF LT. SCHUSTER FAILED TO PROVIDE PROBABLE CAUSE TO BELIEVE THAT EITHER DRUGS OR RELATED PARAPHERNALIA WOULD BE FOUND AT 188 RUTGERS STREET, APT. B-5, NEW BRUNSWICK ON APRIL 4, 2002.

II. THE PREJUDICIAL EFFECT OF OTHER CRIMES EVIDENCE ADMITTED THROUGH THE TESTIMONY OF SEVERAL WITNESSES OUTWEIGHED ANY PROBATIVE VALUE.

III. DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY THAT ON APRIL 4, 2002, SGT. QUICK WAS INVESTIGATING DEFENDANT.

IV. THE TRIAL JUDGE'S DENIAL OF DEFENDANT'S MOTION FOR DISCLOSURE OF THE CONFIDENTIAL INFORMANT'S IDENTITY WAS AN ABUSE OF DISCRETION WHICH RESULTED IN A DENIAL OF THE DEFENDANT'S RIGHT TO DUE PROCESS.

V. THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT THAT DEFENDANT POSSESSED COCAINE AND MARIJUANA WITH THE INTENT TO DISTRIBUTE AND THE GUILTY VERDICT ON THOSE CHARGES WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.

VI. THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

VII. THE COURT ERRONEOUSLY ORDERED THAT DEFENDANT'S SENTENCE FOR COUNT SIX, POSSESSION WITH INTENT TO DISTRIBUTE C.D.S., NAMELY MARIJUANA, TO RUN CONSECUTIVE TO THE SENTENCE FOR COUNT THREE, ...


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