On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-09-2118.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Fuentes and Gilroy.
Defendant Michael Blacknall was tried before a jury and convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and the petty disorderly person offense of harassment, N.J.S.A. 2C:33-4, as a lesser-included offense of third-degree attempting luring or enticing of an adult, N.J.S.A. 2C:13-7.*fn1 The court sentenced defendant to a term of four years on the third-degree drug possession conviction and to a concurrent thirty-day jail term on the petty disorderly person offense. The court also imposed the mandatory fines and penalties.
We gather the following facts from the evidence presented before the trial court.
Karen Esposito was the State's principal complaining witness. She testified that on May 26, 2007, she was walking through Lake Topanemus Park in the morning hours of the day when a man seated on a park bench called out to her. This man, later identified as defendant, asked Esposito to take his picture. When Esposito agreed, defendant handed her the camera, "took out $20 and said, 'Here's $20. Let's go over there,' and pointed towards the woods."
Because this request made her nervous, Esposito offered to take the picture where she was standing. According to Esposito, defendant responded by saying: "'No, no, no. Here's $20. Let's go over there', and pointed to the woods." Fearing for her safety, Esposito dropped the camera on defendant's lap; she then pretended that she saw her father's car, and told defendant that she would return immediately after she informed her father of her whereabouts. Esposito explained that defendant was insistent, however, stating: "No, no. We'll do it real quickly let's just do it now[,]" to which she responded "No, no. Wait here, I'll be right back." As she backed away, defendant asked for her name, to which she replied "Laura."
Esposito ran from the scene, eventually encountering a couple who were walking on a nearby pedestrian path. She asked them to remain with her as she called the police to report this incident. Officers James McNamara and Frank Mount responded to the park on a report of a woman being lured into the woods. The description of the individual given to police was a "black male, medium build, bald head, wearing blue shorts, sneakers and a blue tank top."
As he walked on the trail near Robertsville Road, McNamara saw a parked car. After he called in the vehicle's license plate number, McNamara continued walking until he came upon a man fitting Esposito's description sitting on a bench with his shorts partially down. McNamara noticed that the man had a blanket next to him.
At this point, defendant grabbed the blanket, stood up and turned away. McNamara drew his weapon and ordered defendant to drop the blanket; defendant was immediately handcuffed upon showing his hands. When the blanket fell to the ground, a part of defendant's genitals were exposed. With McNamara's assistance, defendant eventually pulled up his pants and sat down.
As these events unfolded, Officer Simonetti arrived at the scene in time to see "something get released from [defendant's] hand." This item was later identified as a "crack pipe" that tested positive for a trace amount of cocaine. Also found next to defendant were three pornographic magazines, a digital camera, a box of tissues, a lighter and a broken wire hanger that, according to McNamara, is used to clean crack pipes. The police also confirmed that the car parked nearby was registered to defendant.
Before advising defendant of his Miranda*fn2 rights, Simonetti asked defendant whether the items found nearby belonged to him, to which defendant responded "yes." Simonetti then asked defendant what he was doing at the park; defendant replied that he was just "hanging out."
Simonetti placed the items recovered in his patrol car for transportation to police headquarters. Despite its possible probative value, the lighter was discarded "because the jail [would not] take it."
Notwithstanding these preliminary pre-Miranda inquiries, the record shows that the arresting officers informed defendant of his rights under Miranda before transporting him to police headquarters. Once at headquarters, Simonetti again advised defendant of his Miranda rights, then asked defendant to initial and sign a standard Miranda waiver form at 11:19 a.m., approximately one hour from the point of arrest. The trial court found that defendant knowingly and voluntarily signed the waiver form.
Armed with defendant's written waiver of his rights under Miranda, Simonetti questioned defendant about his activities in the park that lead to his arrest. According to Simonetti, defendant said that "he was in the park playing with himself, masturbating. He was smoking ...