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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...