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State v. Spencer

December 16, 2009


On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-03-0406.

Per curiam.


Submitted November 12, 2009

Before Judges Stern, Graves and Newman.

Tried by a jury, defendant, David Spencer, was found guilty of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); second-degree possession of heroin with intent to distribute same in a quantity of one-half ounce or more, but less than five ounces, N.J.S.A. 2C:35-5a(1) and (2); and third-degree attempted hindering apprehension, N.J.S.A. 2C:5-1a(3) and N.J.S.A. 2C:29-3b(1). The State moved for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f. Merging the possession charge with the possession with intent to distribute, the trial judge sentenced defendant to a mandatory extended term of sixteen-years imprisonment with an eight-year parole ineligibility term. On the attempted hindering apprehension charge, the court sentenced defendant to a concurrent five-year term. Defendant appeals. We affirm.

The relevant facts may be summarized as follows. On September 19, 2004, a concerned citizen contacted the Paterson Police Department to report that defendant and co-defendant David Ellis were employing Ellis's girlfriend, co-defendant Alexis Timmons, in her first floor apartment, on Montgomery Street in Paterson, to store bulk amounts of heroin. The citizen reported that rental vehicles were then used to transport the heroin to street dealers in Paterson.

Detectives William Palomino, Virginio Formentin, and Marvin Sykes investigated the citizen's information. The detectives were familiar with defendant and Ellis from "numerous prior narcotic investigations." That week, the detectives set up a thirty-five minute visual surveillance of Timmons's apartment building. The police officers claimed that during this surveillance, they observed a silver 2004 Pontiac SUV pull up and park in front of the apartment building. The detectives identified the driver and front passenger as defendant and Ellis, respectively. The two men were seen entering the apartment, exiting the apartment about two minutes later, and driving away.

The surveillance followed the vehicle to an abandoned lot on 12th Avenue. There, defendant met with a black male. The detectives said that they saw defendant give a black plastic bag to the male, who then walked into the lot and secreted the plastic bag in the fender of a pick-up truck with no license plate. The detectives said that the SUV then drove away.

Detective Palomino continued to surveil the male and observed him make what appeared to be numerous "hand-to-hand drug transactions." The detective recognized one individual from a previous narcotics investigation. He saw this person exchange money for a small object.

A second visual surveillance was conducted of Timmons's apartment building during the week of September 26, 2004. The detectives again saw the same Pontiac SUV, with the same license number, pull up in front of the building, with defendant and Ellis inside. The detectives stated that they observed defendant and Ellis enter the apartment building for about two minutes before they re-emerged, and drove to the abandoned lot on 12th Avenue.

Detective Palomino said that he observed defendant exit the SUV. Detective Palomino stated that he saw a black male in his early twenties exit the lot and approach defendant, at which point, defendant "began to look around while the . . . male entered the SUV and removed a medium sized plastic bag which he took and hid in the lot . . . ." Detective Palomino then said that he recognized a female from a past narcotic investigation approach defendant, who directed her to the lot, "where she made what appeared to be a hand to hand drug transaction" with the male.

Afterwards, Detective Formentin arranged for a confidential informant to conduct a controlled buy from the male in the lot. The plastic bag that the informant purchased tested positive for heroin. The detectives also discovered that the Pontiac SUV was registered to Elrac, Inc., commonly known as Enterprise Rent-ACar (Enterprise).

The citizen's information and the follow-up surveillance were described in an affidavit, signed and dated on September 29, 2004, by the detectives, for four search warrants, which were granted by a municipal judge. The search warrants were for defendant's person, Ellis's person, the Pontiac SUV, and the first floor of the apartment building at 59 Montgomery Street and any persons found therein reasonably believed to be connected with the criminal activity.

After obtaining the search warrants, the detectives drove to the Montgomery Street address. The detectives observed the same Pontiac SUV pull up in front of the apartment and saw defendant and Ellis exit the vehicle. The vehicle then pulled away, and was subsequently stopped and searched by a back up team of officers. The driver was identified as Gilbert Robinson. Nothing was recovered by the police in the Pontiac SUV.

Meanwhile, just before the police were about to stop defendant and Ellis, the men noticed the police and fled into the apartment building. Detectives Palomino, Formentin, and Paterson pursued them. The detectives saw the men run upstairs, go inside the second floor apartment, and slam the door shut. As the men were running upstairs, Detective Palomino saw defendant drop a "bright color [sic] plastic bag on the steps." Inside the bag, the detective could see "several bricks of heroin, suspected heroin." Later, the police counted 500 glassine bags of suspected heroin from inside the bag.

Detective Evelyn Gonzalez, located behind the apartment building, radioed the detectives and informed them that bricks of suspected heroin and United States currency were being thrown out of the second floor window. Thereafter, Detective Formentin identified himself and the other detectives as Paterson police officers, outside the second floor apartment. The detectives forcibly entered the apartment when no one responded to the door. The apartment was occupied by defendant, Ellis, Timmons, and Ellis's seventeen-year old cousin. The detectives observed defendant exiting the bathroom and Ellis attempting to flush numerous glassine bags of suspected heroin in the toilet. They also noticed United States currency in a grocery bag on the bathroom floor. After securing the second floor to ensure there were no other occupants, the detectives sought and obtained a search warrant for the second floor apartment.

Two-hundred sixty-one glassine bags of suspected heroin from the bathroom, 500 glassine bags of suspected heroin from the bag that defendant dropped while running up the stairs, twenty-five glassine bags of suspected heroin from the front bedroom of the apartment, and 952 glassine bags of suspected heroin from outside the apartment were recovered. The police also found a Timberland boot box under Ellis's bed. A digital scale, a dinner plate with white residue, small zip-lock baggies, larger zip-lock baggies, an ink pad, stamps, rubber bands, three straight edge razors, envelopes with the return address stating Ellis's name and the apartment's address, and three government documents that had defendant's name on them, with another address, were found inside the box. The police also found glassine envelopes of suspected heroin and magazine wrappings inside the box. They were wrapped in ten glassine bundles. Six thousand five hundred twenty-five dollars was also found. Defendant, Ellis, Robinson, and Timmons were arrested.

A field test conducted by Detective Sykes of some bags of suspected heroin positively identified the contents of the bag as heroin. Laboratory tests resulted in positive identifications of heroin that was ...

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