On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictments No. 05-08-00872 and 05-08-00873.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2009
Before Judges Carchman, Parrillo and Lihotz.
Following denial of his motions to suppress evidence seized pursuant to a search warrant and for disclosure of the identity of a confidential informant, defendant, James Talmadge, pled guilty to two counts of first-degree possession of a controlled dangerous substance (CDS), cocaine and heroin respectively, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1); and to a separately indicted charge of second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7. In accordance with the plea agreement, defendant was sentenced on the two drug crimes to concurrent eighteen-year terms with six-and-one-half year periods of parole ineligibility, to run concurrent to a five-year term with a five-year parole bar on the weapons offense. Appropriate fees and penalties were also imposed.
On appeal, defendant raises the following issues:
I. THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.
A. THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT FAILS TO ESTABLISH PROBABLE CAUSE TO BELIEVE EVIDENCE WOULD BE DISCLOSED BY A SEARCH OF THE DEFENDANT'S HOME.
B. THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT CONTAINED MISREPRESENTATIONS THAT WERE INTENTIONALLY FALSE OR WERE MADE WITH RECKLESS DISREGARD OF THE TRUTH.
II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION AND RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE TRIAL COURT'S DECISION TO ALLOW THE STATE TO WITHHOLD THE IDENTITY OF THE CONFIDENTIAL INFORMANT.
III. THE SENTENCE IS EXCESSIVE.
A. AGGRAVATING AND MITIGATING FACTORS.
B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
After consideration of these arguments, in light of the record and applicable law, we affirm.
According to the State's proofs, Detective James Crowell of the Rahway Police Department received information from a confidential informant (CI) that defendant was distributing narcotics and, based on that information, set up two controlled narcotics buys between the CI and defendant during the weeks of April 10 and 24, 2005. Following his surveillance of these purchases, on May 12, 2005, Crowell prepared an affidavit in support of an application for a search warrant, which was issued that same day. The warrant authorized the search of the defendant's person, his vehicles - a 2003 black Ford Explorer and a 2005 gray Ford Expedition - and his residence in Rahway.
In his affidavit, Crowell attested to the fact that he "received information that a black male known as James Talmadge, is currently involved in the illegal distribution of controlled dangerous substances, namely, cocaine, from within his residence, [ ] Rahway, New Jersey." Crowell represented that the CI's reliability "has previously been established and [his or her] information has been corroborated through this investigation." The informant also identified defendant in a picture provided by police and gave an accurate physical description of defendant. According to the informant, "prospective customers make contact with James Talmadge utilizing cellular number [ ] and negotiate the purchase of controlled dangerous substances." The CDS are "then delivered to the buyer by James Talmadge utilizing a 2003 black Ford Explorer New Jersey Registration [ ] or a 2005 gray Ford Expedition New Jersey Registration [ ]."
The affidavit further described the results of police surveillance of the two controlled narcotics buys arranged through the CI. While surveilling defendant's residence during the week of April 10, 2005, Detective Sergeant Robert Conroy observed defendant exit his home and enter a black Ford Explorer. Again, during the week of April 24, 2005, Conroy observed defendant leave his residence, but this time defendant entered a gray Ford Expedition. On each occasion, Conroy followed defendant to a pre-arranged location - a Rahway go-go bar called "Breathless" - where Detective Crowell then picked up surveillance and witnessed defendant engaging in the controlled drug buys with the CI. Immediately after each transaction, Conroy resumed surveillance, following defendant on his return home. The suspected substances involved in both transactions later tested positive for cocaine. The affidavit also contained additional sources of information that defendant did in fact reside at that particular home and that he owned, and registered in his name, the two vehicles used in the controlled buys.
Execution of the search warrant on May 12, 2005, uncovered multiple clear bags containing "rocky powder," "one clear bag containing off white powder," a clear bag containing fifty yellow tablets in the Explorer, four "pink zip lock bags containing white powder", and $593.00 in cash on defendant's person. In defendant's residence, the police seized a number of items, including but not limited to: a "zip lock bag containing 349 yellow pills" from a desk drawer; "large clear bag containing greenish/brown vegetative substance"; three "digital scale[s]"; multiple clear zip lock bags containing "white powder" and "white ...