On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-03-0206.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Carchman and Ashrafi.
Following an unsuccessful motion to suppress and thereafter, a jury trial, defendant Wasiu Onigbanjo was convicted of third-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); third- degree possession of cocaine, N.J.S.A. 2C:35-10a(1); and two counts of third-degree distribution of cocaine, N.J.S.A. 2C:35- 5a(1) and 2C:35-5b(3). With the trial judge sitting as a municipal court judge, defendant was also convicted of the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2.
At sentencing, the State moved for an extended term relying on defendant's prior criminal convictions, N.J.S.A. 2C:43-6f. Specifically, defendant had previously been convicted of three indictable offenses in Essex and Union Counties, including charges for possession and distribution of CDS. Defendant did not oppose the state's motion but urged that he was "someone with a very serious drug problem who [was] selling drugs out of a dingy motel, making a few bucks here and there to support his own habit" and suggested an appropriate sentence for the distribution offenses would be "somewhere in that second-degree range, the extended term range of five to seven years...." He also requested that the sentences for distribution be run concurrently.
In sentencing defendant, the trial judge noted:
[o]n the aggravating factors, risk of further offense, prior history, need to deter. I really don't see any mitigating factors. Possibly that your being a drug addict explains your conduct. That is about it.
With regard to sentence I will merge count five, which is the possession, into count four, which is the intent to distribute, [and] grant the extended term under [N.J.S.A. 2C:43-6f.] On the distribution, count six, it's going to be the extended term will be imposed on that at a seven year term, three years without parole. Count seven, which is a separate distribution, it will be a five year term, two and a half without parole, but consecutive. Count four, which is the ["]with intent to distribute,["] five years, two and a half without parole, concurrent to count six. And the disorderly, six months concurrent also to count six.
The judge sentenced to an aggregate of twelve years incarceration with a five and one-half year parole ineligibility period. We affirm the conviction but remand for resentencing. These are the relevant facts adduced from the record. In February 2007, officers of the Middlesex County Prosecutor's Office Narcotics Task Force received information defendant was selling narcotics in Piscataway. Further investigation suggested defendant had moved his operation to the Ivory Tower Motel in Green Brook Township, Somerset County. On February 6, an undercover officer of the Task Force attempted an undercover purchase from defendant. Back-up officers identified defendant exiting room 211 of the motel for the sale and returning to that room after completion of the transaction.
The sale took place in the undercover officer's car, and after completion of the sale, the officer was provided defendant's cell phone number for future transactions. The transaction was observed by other officers providing backup.
Another transaction was arranged for February 7. The officer called defendant on the phone number provided to her the evening before and stated she was interested in purchasing more crack cocaine. Defendant stated he could "help [her] out" and asked her to return to the motel. Police again observed defendant leaving room 211 to meet with the officer in the parking lot. On this occasion and consistent with the prior transaction, defendant received one-hundred dollars in exchange for two plastic baggies, containing what was later found to be crack cocaine.
Based on the two undercover buys, the police obtained a search warrant on February 8. The warrant covered defendant's person and room 211 of the Ivory Tower Motel. Within hours of obtaining the warrant, police observed defendant and another man, later identified as co-defendant Michael Emmanuel, exit room 211 "carrying a couple bags" and enter room 224, a few doors away. A few minutes later, a motel cleaning crew entered room 211.
The supervising officer on scene spoke with the motel manager and was informed that "the gentleman who was in 211 had a problem with [his] toilet," necessitating the move. The officer then informed the manager "we had a warrant to execute at room 224" and asked "if [the manager] could go in and knock on the door and then when the individual opened the door to just step aside." The manager agreed to co-operate. According to the officer, events then unfolded quickly:
Q:... Once you went up to the room with the manager and the other officers, what did the manager do?
A: Knocked on the door. Something I have to speak to you, something to that effect, something short. The door opens up, the manager stepped aside. Mr. Onigbanjo had answered the door, standing in the threshold of the door and my guys grabbed him and fell inside the room.
Q:... Now, once the other officers grabbed Mr. Onigbanjo and fall into the room, what do they do with Mr. Onigbanjo at that point?
A: They pick him up. Immediately there is what appears to be a quantity of [a controlled dangerous substance (CDS)] observed on a bed. Mr. Onigbanjo was arrested, placed under arrest and so was Mr. Emmanuel.
A: I then asked for consent from both individuals to search the room. They both declined. I informed my... men to secure the room and I was going to have to try and get a warrant for that room.
After instructing his officers not to search the room, Sergeant Muntone contacted his legal advisor and was advised that the officers would attempt to secure a phone warrant. In a three-way phone conversation between two officers and the judge, the officers explained to the judge the whole situation of what had transpired with room 211 being vacated and then going into room 224, and I explained that along with what I had observed in plain view.
I very well could have said, your Honor, that warrant you signed for 211, we were going to execute, but here's what happened and then went from there.
In response to this information, the judge granted the telephonic warrant, and the police conducted a thorough search of room 224. The search formally uncovered:
[On a bed,] one dark colored sock[,] [which] contained a plastic bag with suspected cocaine in it and a copper color scrub ball... used to put ...