March 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MORRELL HOYLE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, No. 05-04-0251-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2009
Before Judges Wefing, Yannotti and LeWinn.
Tried to a jury, defendant was convicted of distribution of a controlled dangerous substance ("CDS") within one thousand feet of school property, N.J.S.A. 2C:35-7; possession of CDS within five hundred feet of a public facility, N.J.S.A. 2C:35- 7.1; hindering his own prosecution, N.J.S.A. 2C:29-3(b)(1); and possession of CDS, N.J.S.A. 2C:35-10. At sentencing, the trial court granted the prosecution's motion to sentence defendant to an extended term under N.J.S.A. 2C:43-6(f). It imposed an aggregate sentence of fifteen years, with a seven-and-one-half-year period of parole ineligibility. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
At approximately 9:30 p.m. on March 18, 2005, members of the Wildwood Police Department executed a search warrant for an apartment at 3919-3921 Pacific Avenue. Defendant was apprehended in the bathroom, kneeling at the toilet, which he had flushed. Water was still swirling in the bowl, and Detective Edward Ramsey of the Wildwood Police Department reached in the bowl and retrieved seven small clear plastic bags. Subsequent testing showed that the bags contained cocaine. Defendant was placed under arrest and searched; the search turned up $1025 in cash and another small clear plastic bag containing a white powder. In addition, a quantity of marijuana was recovered from the living room in the apartment.
Testimony at defendant's trial established that the apartment was within one thousand feet of Wildwood High School. Testimony also established that the apartment was within five hundred feet of the George F. Boyer Historical Museum. The museum is managed by the Wildwood Historical Society in a building that is owned by the municipality and leased to the Society. The Society is a New Jersey non-profit corporation.
On appeal, defendant raises the following arguments:
THE TRIAL COURT SHOULD HAVE GRANTED HOYLE'S MOTION TO SUPPRESS BECAUSE THE WILDWOOD POLICE FAILED TO COMPLY WITH THE TERMS OF THE "KNOCK AND ANNOUNCE" SEARCH WARRANT AS A MATTER OF LAW.
THE TRIAL COURT ERRED IN DENYING HOYLE'S MOTION TO DISMISS COUNTS 3 AND 9 BECAUSE THE STATE FAILED TO DEMONSTRATE THAT THE ALLEGED DRUG ACTIVITY OCCURRED WITHIN 500 FEET OF A PUBLIC BUILDING.
HOYLE'S SENTENCE IS EXCESSIVE AND UNFAIR.
The trial court conducted an extensive hearing in connection with defendant's motion to suppress. Testimony and argument were presented over three days. Five witnesses testified, two of whom, Kathryn Brannon and Lawrence Mathis, were in the apartment at the time of the search. Brannon was eighteen years old. She was at home in Cape May Court House when her friend Brittany, who was at the Wildwood apartment, called and asked if she wanted to get together. Brannon responded she did not have a ride and had no money. Brittany told her that defendant would send a cab for her. She had been in the apartment between thirty and forty-five minutes when the police arrived. She said that they had been watching music videos on television and eating pizza. She said there was marijuana on the table in the living room but that no one was smoking it. She said she did not hear the officers knock and announce their presence before breaking down the door. Brannon was found hiding behind the bathroom door. She said she fled there when she heard two loud bangs and the police entered.
Mathis testified that he was standing in the kitchen smoking a cigarette when he heard three loud bangs on the rear door. He started toward the bedroom but was apprehended in the hall near the living room. He admitted that he worked delivering drugs for defendant.
The three remaining witnesses were members of the Wildwood SWAT team who executed the warrant. They each testified that they did not enter before knocking and announcing that it was the police. Detective John Clemens was the first in line of the officers. He testified that when the members of the team were all in place, he tried the handle on the apartment's rear door. It turned, and he thought the door was unlocked. Directly behind Detective Clemens was Detective Chris Korabellis who was to use the ram. Clemens signaled to Korabellis that the door was unlocked, and Korabellis then placed the ram off to the side and resumed his place in line. Clemens knocked on the door and announced it was the police. After waiting ten to fifteen seconds and getting no response, he turned the handle to open the door and enter. He then learned there was a deadbolt securing the door. Korabellis then holstered his gun, retrieved the ram and struck the door. It took two blows before the door gave way and the officers entered. Korabellis said that he slipped as he gave the first blow and had to recover his footing before striking the second. Detective Ramsey, who retrieved the bags of cocaine from the toilet, also testified that Clemens knocked and announced the police presence before they entered the apartment.
After hearing these witnesses and extended oral argument, the trial court gave a comprehensive oral opinion, setting forth its reasons why it considered the testimony of the officers more credible than that of defendant's witnesses. It specifically concluded that, contrary to defendant's position, the police did knock and announce their presence before entering the apartment to execute the warrant.
Defendant's first argument is premised essentially on his contention that the officers did not knock, but proceeded as if this were a no-knock warrant. Defendant contends that because there was no testimony of any exigency, the officers were bound to comply with the knock and announce provision in the warrant and their failure to do so voids the search.
This argument fails, however, because it flies in the face of the trial court's specific and detailed factual findings that the warrant was properly executed. The trial court noted, moreover, that the State had proven the proper execution of this warrant, not by a preponderance of the credible evidence but beyond a reasonable doubt. The trial court said that it was not even a close call. The trial court's findings are binding upon us on appeal because they find ample support in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999).
In defendant's second argument, he contends the trial court erred when it denied his motion for acquittal on counts three and nine of the indictment. Count nine charged defendant with third-degree possession of marijuana with intent to distribute within five hundred feet of public property. The jury, however, found defendant not guilty with respect to count nine, and this aspect of defendant's argument is moot.
Count three of the indictment charged defendant with second-degree possession of cocaine with intent to distribute within five hundred feet of public property. Defendant's argument that the trial court should have granted his motion rests upon his assertion that the museum does not fall within the definition of a public building contained in N.J.S.A. 2C:35-7.1. Subsection (f) of the statute defines a public building as "any publicly owned or leased library or museum."
Testimony at the trial established that the building in question is owned by the City of Wildwood and leased to the Wildwood Historical Society under a twenty-year lease for a rental of one dollar per year. The Society operates the museum on the first floor of the building. There are two rental units on the second floor. The lease permits the Society to rent those units and retain the rental income. The record is silent whether those units were rented at the time of defendant's arrest. It is also silent as to how membership in the Society is determined.
The trial court denied defendant's motion for a judgment of acquittal, saying that "the purpose of the not for profit corporation is civic, is of a nature typically undertaken by governmental entities, public entities, specifically historical museums."
Under the statute, property qualifies as a "public building" if it is either publicly-owned or publicly-leased and is used either as a library or a museum. The statute does not require that the library or museum be publicly operated. The trial court correctly denied defendant's motion.
Defendant's final argument is that his sentence is excessive and unfair. In light of defendant's significant prior criminal record, and his complete failure to comply with the terms of probation and parole when they were made available to him, his argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). His sentence was amply justified, as the trial court clearly and eloquently set forth at the time of sentencing.
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