July 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN YOUNG, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-07-0901.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 16, 2009
Before Judges Axelrad and Winkelstein.
Following denial of his motion to suppress, defendant John Young, Jr. was convicted by a jury of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). The court sentenced defendant to a five-year probationary term. On appeal, defendant challenges the denial of his suppression motion and argues the State failed to meet its burden of proof to demonstrate he committed the offense. We have considered these arguments in light of the record and applicable legal standards, and affirm.
According to the State's proofs at the suppression hearing, on April 27, 2006, Morristown police conducted narcotics surveillance of the Tavern Off the Green (Tavern), which was known for its drug activity, from behind a dilapidated, wooden fence adjacent to its parking lot. Shortly after l:00 a.m., Patrolman Brett Smith, a nine-year veteran of the police force, observed, through a hole in the fence, a car containing two men pull into the well-lit Tavern parking lot, about ten feet from him. The passenger, John Hairston, who the officer knew, entered the Tavern while the driver, later identified as defendant, remained in the car. Less than a minute later, Hairston left the Tavern and as he opened the car door to get in, Patrolman Smith heard defendant ask, "did you get the coke?" Hairston replied, "yes." Hairston then got into the car and handed an item to defendant, which he appeared to put into his left pants pocket. Based on his training and experience, Patrolman Smith believed he had just witnessed a drug transaction and therefore radioed his observations to dispatch.
Patrolman Richard Lamperti stopped defendant's car a short distance away. Momentarily, Patrolman Smith and his partner arrived at the scene and defendant consented to a search of his car. The police found no illegal contraband inside. When the officer told defendant what he had seen and asked defendant what Hairston had handed him, defendant denied having drugs on his person. Defendant gave Patrolman Smith permission to search his pockets. Defendant then quickly pulled some paperwork and his wallet from his pants pockets and offered them to the officer but he did not remove an item that was bulging in his left pants pocket. In response to the officer's comment that there was still something in his left pocket, defendant put his hands into both pockets and released his right hand and pulled the pocket out but kept his left hand clenched in his left pocket.
Based on his observations in the parking lot of defendant placing an item from Hairston into his left pocket and his training and experience as a police officer, Patrolman Smith was concerned at that point that defendant had contraband or a weapon in his pocket. Accordingly, after instructing defendant to turn around and place his hands against a wall, the officer reached into defendant's left pocket and found a folded dollar bill with.16 grams of cocaine inside. Defendant was arrested and charged with possession of CDS.
Judge Ahto, crediting the State's proofs, denied defendant's suppression motion, finding the police had probable cause for the search based on the veteran officer's observations, which led to his belief he had witnessed a drug transaction and contraband or a weapon was in defendant's pocket. These observations included: defendant's comment about the coke and taking the item from Hairston and placing it into his left pants pocket in the parking lot; the absence of contraband in the car; the small bulge in defendant's left pants pocket; defendant's placement of his hand into his left pants pocket; and his refusal to remove his clenched fist from the pocket. The court also noted there was a sufficient objective basis for a Terry*fn1 protective pat-down search for a potential razor-blade type weapon in defendant's pocket.
At trial, Patrolman Smith testified to substantially the same set of facts as he did at the suppression hearing. He additionally testified about defendant's handwritten statement made at headquarters post-arrest after being given his Miranda*fn2
warnings, in which he admitted that Hairston had given him the folded $l bill containing cocaine but intimated he did not know what it was when Hairston gave it to him. The State also presented the testimony of the chemist from the State Police Laboratory. Judge Manahan denied defendant's motion for a judgment of acquittal. Defendant was convicted of the possession charge. The court denied defendant's motion for a new trial. This appeal ensued.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT ERRED WHEN IT DENIED JOHN YOUNG'S MOTION TO SUPPRESS THE EVIDENCE FOLLOWING AN ILLEGAL SEARCH OF HIS PERSON.
A. THE POLICE DID NOT HAVE PROBABLE CAUSE TO SEARCH MR. YOUNG'S PERSON.
B. THE POLICE DID NOT HAVE CONSENT TO SEARCH MR. YOUNG'S PERSON.
C. THERE WERE NO EXIGENT CIRCUMSTANCES PERMITTING THE POLICE TO SEARCH MR. YOUNG'S PERSON.
D. THE OFFICER HAD NO RIGHT TO PERFORM A WARRANTLESS SEARCH UNDER THE INVESTIGATIVE OR PROTECTIVE MEASURES EXCEPTION.
II. THE TRIAL COURT ERRED WHEN IT DENIED MR. YOUNG'S MOTION FOR A NEW TRIAL AS THE PROSECUTION FAILED TO MEET ITS BURDEN OF PROOF THAT MR. YOUNG COMMITTED THE OFFENSE OF POSSESSION OF CDS.
A. THERE WAS NOT SUFFICIENT EVIDENCE TO FIND THAT MR. YOUNG KNEW THAT HE WAS HANDED A DOLLAR BILL CONTAINING COCAINE.
B. MR. YOUNG DID NOT HAVE SUFFICIENT TIME OF POSSESSION TO TERMINATE HIS POSSESSION OF THE CDS.
III. THE TRIAL COURT ERRED WHEN IT FAILED TO ENTER A JUDGMENT OF ACQUITTAL AFTER THE PROSECUTION CLOSED ITS CASE.
On the issues raised by defendant, we affirm substantially for the reasons stated by Judge Ahto in his oral opinion of June l8, 2007 on defendant's suppression motion and by Judge Manahan on January 11, 2008, on defendant's motions for acquittal and for a new trial. We add only the following comments. We remand, however, for correction of the Judgment of Conviction to reflect that defendant was tried by a jury and did not plead guilty.
In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (citations omitted). We also afford a deferential standard of review "to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Id. at 244 (citation omitted).
Here, the evidence found credible by the motion judge established that at a minimum, the police had a constitutional right to stop defendant's car for investigative purposes based on a reasonable suspicion, grounded in specific and articulable facts, that he had been engaged in a drug transaction. See State v. Thomas, 110 N.J. 673, 678 (1988) (a reasonable, articulable suspicion involves something less than the probable cause standard needed to support an arrest). Patrolman Smith's observations and his training and experience thereafter converted his belief into probable cause equivalent to a "well-grounded" suspicion that a crime had been committed justifying the search of defendant. See State v. Waltz, 61 N.J. 83, 87 (1972); State v. Pierce, 190 N.J. Super. 408, 415 (App. Div. 1983). As the motion judge noted, "[n]o contraband was found in the vehicle, making it obvious in my view that the item observed in the parking lot was elsewhere, meaning on the defendant's person." This conclusion was reinforced by defendant's suspicious behavior in clenching his left hand into his bulging pants pocket where the officer had observed him place the item that Hairston had handed him in the Tavern parking lot. As the officer had a well-grounded suspicion that a drug transaction had occurred and a reasonable inference that there was contraband or a weapon in defendant's pocket, defendant's suppression motion was appropriately denied.
We conduct our review of the denial of defendant's motion for acquittal, applying the same standard used by the trial judge, State v. Kluber, 130 N.J. Super. 336, 341 (App. Div. 1974), namely:
[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 459 (1967).]
Our standard of review of a trial court's action on a new trial motion is essentially the same as that controlling the trial judge, which is a limited one; "[t]he object is to correct clear error or mistake by the jury." Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969).
Applying these standards to the present case, we conclude that the State presented more than sufficient evidence from which a rational jury could find, beyond a reasonable doubt, that defendant committed the offense of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). Under the statute, the State must prove a defendant "knowingly or purposely" possessed a CDS. Possession is to be construed strictly as signifying intentional control and dominion. State v. McCoy, 116 N.J. 293, 299 (1989) ("the ability to affect physically and care for the item during a span of time") (citations omitted); N.J.S.A. 2C:2-1c.
Defendant does not deny that Hairston handed him a folded dollar bill, which he placed in his pocket. He argues, however, the State failed to prove he knew the money contained cocaine and he possessed it long enough to discard the item. On the contrary, there is ample evidence in the record, with all favorable inferences to the State, upon which a reasonable juror could find defendant knew the bill contained cocaine and his possession was more than merely "fleeting." Defendant pulled up at the Tavern, a known place of drug activity, to let Hairston out for a one-minute pick-up. Immediately after Hairston returned to the car, defendant asked him if he had gotten the "coke" even before Hairston handed him the folded bill, clearly demonstrating defendant's knowledge of a drug transaction. Defendant then put the folded bill into his pocket. The police did not intervene at that time. Instead, they waited until after defendant drove out of the parking lot and down Morris Street. That was more than enough time for defendant to divest himself of possession of the bill if that were his intent. A reasonable juror could find defendant continued to attempt to exercise dominion over the cocaine by trying to divert the officer's attention from the folded bill in his left pocket. Moreover, even without affording the State all favorable inferences, reasonable minds would accept the evidence as adequate to support the verdict. Dolson, supra, 55 N.J. at 6.
Affirmed, except for remand for correction of the judgment of conviction.