On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-02-0265.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Baxter.
Defendant Samar Smiley appeals from his January 26, 2007 conviction, following a trial by jury on third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); and fourth-degree resisting arrest, N.J.S.A. 2C:29- 2a(3) (count two), for which the judge sentenced him to a five-year term of imprisonment on count one, consecutive to an eighteen-month term of imprisonment on count two. We reject defendant's arguments that the judge wrongly denied his pretrial motions and imposed an excessive sentence. We affirm defendant's conviction, but remand for a correction of the judgment of conviction (JOC).
In the late afternoon of November 25, 2005, the Atlantic City police department received a 9-1-1 call from a distraught woman who alleged that a man named Samar wearing a tan coat had attempted to stab her. She also alleged the man was armed with a handgun. In response to the call, police arrived at the Drexel Avenue Court public housing units, which Officer Michael Ruzzo described as an "area known for criminal activity," where he had made numerous arrests for weapons offenses, drug offenses and fights. Upon his arrival, a female whom Ruzzo identified as "Mrs. Faulkner"*fn1 ran up to him yelling, "he's trying to leave." While saying that, Faulkner pointed to a man standing in the parking lot wearing a tan coat, whom Ruzzo recognized as defendant Samar Smiley.
As Ruzzo ran toward defendant, Faulkner "ran with [him]," and told Ruzzo that defendant "threw a gun in the car and . . . tried to stab her." Ruzzo patted defendant down, and found neither the gun nor the knife that Faulkner had described. Hearing the victim accuse him of trying to stab her, defendant asserted that it was one of the men in the courtyard who had done so, to which Faulkner continued to insist "no, no, no. It's Samar." Ruzzo directed Officer Howard Mason to peer into defendant's 2000 Buick to see if there was a handgun in the car "because the victim was so adamant" that defendant had hidden a gun inside.
Like Ruzzo, Mason had made numerous weapons and narcotics arrests at Drexel Avenue Court. Mason described the scene that day as "crazy" with "a lot of people upset and screaming." At Ruzzo's direction, Mason looked in the car and saw two "bricks" on the floor of the driver's side wrapped in a magazine or a newspaper. Based upon his experience with illegal narcotics, Mason recognized the "bricks" as five bundles of heroin. Mason testified that his discovery of the CDS in defendant's car was entirely inadvertent because when he peered into defendant's car, he was looking only for the gun Faulkner had described and he had no suspicion that two bricks of heroin would be lying on the floorboard.
Once Mason saw the two bricks on the floor of defendant's vehicle, he reported what he had seen to Ruzzo, who directed a third officer to arrest defendant. Upon hearing that he was about to be arrested, defendant stated, "it was only some bags of weed," and immediately ran. After running fifty feet, defendant collapsed and was taken into custody. After telling defendant that the vehicle was about to be towed, Ruzzo asked defendant whether anyone should be notified, to which defendant responded that even though the vehicle was registered in his girlfriend's name, the car was actually his.
Judge Isman denied defendant's motion to suppress, finding Faulkner's repeated accusations that defendant had hidden a gun in the car, when combined with the unruly crowd in the high crime area of Drexel Avenue Court, created exigent circumstances that justified the warrantless search of defendant's vehicle. The judge also held that the search was justified by the plain view exception to the warrant requirement.
At the Miranda hearing,*fn2 the judge held defendant's statement that the drugs were only "weed" was not the result of police interrogation and therefore was admissible despite the absence of Miranda warnings. The judge made the same finding concerning defendant's statement that the car was his.
At trial, the State called Ruzzo and Mason, whose testimony mirrored their testimony at the Miranda and suppression hearings. The State also called Officer Dean Dooley, who corroborated Ruzzo's testimony that defendant fled. Dooley also testified that after defendant was arrested, a search of his person yielded more than $1,600 in cash. The State's final witness was Officer Paul Gautier, who testified that the packaging of the heroin in two bricks was ...