On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-02-0394-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Collester.
Tried to a jury, Jesus Cintron was convicted of conspiracy to possess a controlled dangerous substance, cocaine, with the intent to distribute, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5, a crime of the second-degree; possession of a controlled dangerous substance, cocaine, contrary to N.J.S.A. 2C:35-10(a)(1), a crime of the third-degree; possession of a controlled dangerous substance with the intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(2), a crime of the third-degree; possession of a controlled dangerous substance with the intent to distribute within 500 feet of a public housing project, contrary to N.J.S.A. 2C:35-7.1, a crime of the second-degree; and burglary, contrary to N.J.S.A. 2C:18-2, a crime of the third-degree. A motion for a new trial was denied on October 18, 2007, and defendant was sentenced on that date to an aggregate custodial term of seven years with a thirty month parole ineligibility period.
On appeal defendant makes the following arguments:
POINT I - THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.
POINT II - THE WEIGHT OF THE EVIDENCE DID NOT SUPPORT THE VERDICT; THEREFORE, DEFENDANT IS ENTITLED TO A NEW TRIAL.
POINT III - DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
At the suppression hearing before Judge Siobhan A. Teare, the State called Grace Lima, the owner of property located at 238 Mount Pleasant Avenue in the City of Newark. The property consisted of three apartments. The apartment in question had been leased to a Gina Vasquez, who had paid rent through December 2005, but had not been seen or heard from thereafter. Ms. Lima testified she did not know defendant but did know co-defendant Alexandra Marquez. She stated that she had not given either of them permission to be in the apartment.
Newark Police Detective Carlos Silva testified that on March 30, 2006, he worked the midnight to 8 a.m. shift. At approximately 1:45 a.m. he and his partner were dispatched to 238 Mount Pleasant Avenue on a squatters and noise complaint. When he and his partner arrived at the scene, they met with a Mr. Barbosa, the person who called in the complaint. He told the officers that there were people in the apartment that did not belong there and that they were making too much noise. Silva knocked on the apartment door, and co-defendant Marquez came to the door. She said that either her cousin or someone she knew had rented the apartment, but Mr. Barbosa, who was standing behind Officer Silva, said that the people in the apartment did not live there and they had "no business being in the apartment."
Officer Silva said that the apartment was dark, lit only by a few candles. He could see there was no furniture. There were car tires, milk crates, makeshift chairs and a table. Silva said that it definitely did not look like a habitable apartment.
Officer Silva and his partner entered the apartment and took five people into custody including the defendant. On the table Silva saw a scale, a package of small black rubber bands, other packaging material, and a white powdery substance in a zip-lock sandwich bag which Officer Silva suspected was cocaine.
The lack of electricity in the apartment together with the absence of furniture and the presence of car tires and milk crates gave Officer Silva probable cause to believe that the occupants of the apartment were trespassers, which gave him the right to enter the apartment to arrest them. See State v. Sims, 75 N.J. 337, 353 (1978). Moreover, since the defendant had no right to be in the apartment, he had no reasonable expectation of privacy. A similar case is State v. Perry, 124 N.J. 128, 149-50 (1991). There, a vagrant was in an abandoned house injecting himself with drugs when police officers entered an open door to escort him to a polygraph examination he agreed to take. When the officers entered, they saw drugs and arrested defendant. The Court held that the drugs was properly seized because the officers had a right to be where they were when they saw the drugs and additionally because ...