On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-04-0330.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2009
Before Judges Graves and Sabatino.
Defendant Herby Chanoine appeals an order of the trial court dated March 3, 2008, denying his petition for post-conviction relief ("PCR") from his 2004 conviction of various drug offenses. We affirm.
The indictment of defendant stemmed from the seizure by Elizabeth police officers of a plastic bag containing vials of cocaine, which they found while they were inside an apartment building on November 9, 2003. The patrolmen had entered the building in response to complaints by neighbors about ongoing drug dealing taking place there. When they arrived at the building, the officers discovered the rear door kept shut by a makeshift wire hanger. They severed the wire with a utility knife and went inside the premises.
The officers walked through a basement hallway, where they encountered defendant, a resident of the building. Defendant was bending over storage cabinets located under the stairwell. After noticing the officers, defendant dropped the aforementioned black plastic bag onto the floor. He then began to run towards his upstairs apartment. One of the officers picked up the bag that defendant had dropped and observed inside vials of what was later confirmed to be cocaine. The officer put the bag into his pocket. Both officers then chased defendant up the stairs.
Once upstairs, the officers spotted defendant in the hallway trying to get into his apartment. They ordered him to stop. Defendant was told that he was being placed under arrest because of the drugs found in the plastic bag. He was given Miranda*fn1 warnings, and frisked. The officers found cash in defendant's front right pocket. The officers then went into defendant's apartment, where they found drug paraphernalia and more currency.
Defendant denied that he had been in the basement of his apartment building on the morning of November 9. He further denied possessing the black plastic bag, or leaning over the storage cabinets in the basement hallway. According to defendant, he had called for a taxi in order to go shopping, and he had been periodically checking the front area of the building to see if the taxi had come. He then noticed police officers standing at the bottom of the stairway. Defendant claimed that he had walked towards, not away from, the officers, when they ordered him to stop. The officers placed him in handcuffs and questioned him. He claimed that there were other persons in the hallway at the time, who also were questioned. Unlike defendant, however, those unidentified persons were allowed to leave.
A grand jury indicted defendant and charged him with third-degree possession of a controlled dangerous substance ("CDS"), specifically cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute it, N.J.S.A. 2C:35-5a(1) and -5b(3) (count two); and second-degree possession of CDS with intent to distribute it in or within 500 feet of a public park, N.J.S.A. 2C:35-7.1a (count three).
Prior to trial, defense counsel moved to suppress the items seized in the warrantless search of her client's apartment. The trial judge granted the motion. Although it was stipulated that the police officers had a lawful right to be in the hallway of the apartment building, the judge found that they had no right to enter defendant's apartment without his valid consent or a warrant, and that no recognized exception to the warrant requirement applied to justify the apartment search.
The State presented testimony from the two arresting officers at trial. It also called an expert witness on narcotics distribution. The expert opined that defendant could have been using the basement hallway as a "stash location" for the cocaine, and that the plastic bag was probably being used to store the vials. He explained how the packaging of the vials was consistent with an intent to distribute the cocaine. The expert further testified that the cash found on defendant's person likely represented the proceeds of earlier drug sales.
Defendant did not call a competing expert witness. In fact, defendant was the sole witness in his own defense. He continued to maintain that the black plastic bag was not his, that he had no intention to distribute cocaine, and ...