On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-05-0463, 05-03-0339 and 05-05-0549.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Sabatino.
Following a 2006 jury trial, defendant William A. Brown, Jr., was found guilty of several offenses arising out of his constructive possession of heroin, a controlled dangerous substance ("CDS"), in Elizabeth in January 2004. After the verdict was rendered, defendant entered into a plea agreement. Pursuant to that agreement, defendant pled guilty to specified counts of two separate Union County indictments charging him with CDS offenses committed on other dates, in exchange for the dismissal of another CDS-based indictment against him. Defendant failed to appear at his ensuing sentencing, and the court imposed an aggregate term of fifteen years, plus various fines and penalties.
On various grounds, defendant now appeals the convictions resulting from the jury trial. Defendant also contends that the trial court erred in imposing a harsher aggregate sentence than the one contemplated in his plea agreement, claiming that his absence at sentencing was justified by medical reasons. We affirm.
The present appeal relates to four indictments returned by the Union County grand jury. All of them charged defendant with possessory CDS offenses.
First, Indictment 04-04-00303-I, returned on April 8, 2004, charged defendant with third-degree possession of CDS (heroin), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); and possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7; fourth-degree possession of less than one ounce of marijuana with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); and possession of less than one ounce of marijuana with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7. The possession was said to occur in Elizabeth on September 9, 2003.
Second, Indictment 04-05-00463-I, returned on May 21, 2004, charged defendant with third-degree possession of CDS (heroin), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); and possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7. The possession was said to occur in Elizabeth on January 28, 2004.
Third, Indictment 05-03-00339-I, returned on March 17, 2005, charged defendant with third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); and possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7. The possession was said to occur in Union Township on November 18, 2004.
Fourth and finally, Indictment 05-05-00549-I, returned on May 3, 2005, charged defendant with third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7; and possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1. The possession was alleged to have occurred in Elizabeth on January 25, 2005.
We need only discuss the proofs relating to the second Indictment, 04-05-00463-I, the one that went to trial. The case involved the discovery by Elizabeth police officers of twenty-eight envelopes of heroin stuffed inside a knit glove. The officers had spotted the glove resting on top of a trash can situated next to an alleyway, in close proximity to defendant, who was found with a matching glove.
More specifically, the State's evidence at trial included the following details relevant to our analysis. At approximately 1:00 p.m. on January 28, 2004, Elizabeth police officers Thomas Bellomo and Herec Colon were on patrol in an unmarked vehicle. It had snowed the previous night. The officers were driving down Fullerton Street when they saw defendant standing in front of an alley next to 629 Fullerton.
According to Officer Bellomo, he saw defendant place an object on top of a lidless garbage can at the mouth of the alley. Bellomo then saw defendant slowly walk east on the sidewalk, in the same direction of the patrol car. The officers pulled over to the curb. Displaying their badges, they got out of their car to speak with defendant. As they approached, Bellomo said to defendant, "hi, we're the police."
The officers asked defendant whether he lived at 629 Fullerton Street. Defendant replied that he did not, but was there to visit his cousin, Ashley Stewart. Officer Bellomo then asked defendant what he had been doing in the alley. Defendant responded that when his cousin did not greet him at the front door, he had walked down the alley and knocked on her window, again not receiving an answer.
As Colon stood with defendant, Bellomo went down to inspect the alley. In spite of defendant's claim that he had just walked down the alley, Bellomo did not observe any footprints in the snow in the alley. The only footprints that Bellomo saw were around a plastic garbage can located at the mouth of the alley. The garbage can had no lid, and snow covered the trash inside of it.
According to Bellomo, he saw a dark knit glove "[r]ight on top of the snow which was on top of the garbage." The glove was dry with no snow on it. Bellomo looked inside the glove and discovered twenty-eight small glassine envelopes containing a powdery substance. The envelopes were wrapped with rubber bands in bundles, all marked "Hot 97" in red ink.
Bellomo walked back to his partner and defendant, who was then placed under arrest. The officers searched defendant, and found in his pocket a dark knit glove matching the one found on top of the garbage can. They also found a cell phone and $80 in cash on his person.
The officers then checked the names on the mailboxes for the premises, and also questioned a person in the apartment next to the alley, but could not locate a resident named Ashley Stewart.
Officer Colon substantially corroborated Bellomo's account of the stop, arrest and search of defendant. Colon testified that he did not speak with defendant when Bellomo went down the alley. Colon also noted that defendant did not speak after initially explaining to the officers that he was there to visit his cousin. After Bellomo took the knit glove with the glassine packages from the trash can and defendant was arrested, Colon found the matching glove in defendant's right front coat pocket. Colon noted that defendant also had a tan rubber band wrapped around his right index finger.
Subsequent laboratory testing confirmed that the powder inside the glassine envelopes was heroin. Detective Antonio Pino of the Union County Prosecutor's Office, who testified as a narcotics expert, opined that the twenty-eight stamped and banded packages of heroin were most likely intended for distribution, not personal consumption. Pino explained that the knit glove appeared to have been used to conceal the heroin, and that it had been placed in a readily-accessible "stash location" within the owner's plain sight.
In his own trial testimony, defendant reiterated his claim that he had come to 629 Fullerton Street to visit his cousin Ashley. Defendant stated that he had taken the bus there, and that when he arrived, he knocked on the front door but there was no answer. He then allegedly walked down the alley, knocked on the back window without getting a response, and returned to the front of the building. Defendant acknowledged that it had snowed the night before and that there was snow on the ground, but that the "little part of the sidewalk" near the trash can was "kind of shoveled." He denied putting anything on the trash can, and also denied ever possessing either of the knit gloves offered into evidence.
As to his encounter with the two officers, defendant contended that they had not been wearing their badges and that he did not initially realize they were police. He maintained that the officers searched him before, not after, they placed him under arrest. Defendant stated that they "jumped out at me and told me to come over right away," because he "came out of the alleyway suspiciously." The officers then "immediately started searching [my] pockets." He denied that Officer Bellomo showed him a glove, but he did recall being shown "the CDS."
After considering these proofs, the jury found defendant guilty of all remaining*fn1 counts of the indictment. Defendant then entered into a plea agreement concerning the other three pending indictments.
Pursuant to the agreement, defendant pled guilty to school-zone CDS offenses, N.J.S.A. 2C:35-7, charged in count three of Indictment 05-03-0339 and in count three of Indictment 05-05-0549, respectively. The remaining counts of these two Indictments were dismissed and Indictment 04-04-0303 was dismissed in its entirety. According to the plea agreement, the State would recommend a five-year "flat" sentence on Indictment 05-03-0339, and a three-year term with a fifteen-month parole disqualifier on Indictment 05-05-0549. Additionally, the State would recommend that defendant's aggregate sentence not exceed six years, with thirty months of parole ineligibility, provided that he fulfilled the conditions of his agreement.
Following the entry of his post-trial plea, defendant was released on bail, on various conditions. The conditions included that defendant had to register immediately with the wristlet program, appear at a presentence interview, and appear for sentencing on April 13, 2006. Pursuant to State v. Subin, 222 N.J. Super. 227, 238 (App. Div.), certif. denied, 111 N.J. 580 (1988), the plea agreement specified that if defendant failed to appear and satisfy these conditions, the State could seek a higher sentence. The trial judge specifically reviewed these Subin conditions with defendant on the record at the plea proceeding. Defendant acknowledged that he understood his obligations and would appear as required.
Despite the terms of his plea agreement and the court's admonishment, defendant failed to appear for his sentencing hearing. He was subsequently arrested on ...