On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1396.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2010
Before Judges Sapp-Peterson and Espinosa.
Defendant appeals from his sentence and convictions for possession of a controlled dangerous substance with intent to distribute within a school zone and within five hundred feet of a public park and hindering apprehension and prosecution. We affirm.
Defendant caught the attention of police officers when they observed what they believed to be a robbery in progress. Officers Robert Cifrodelli and Michael Kurinzi of the Elizabeth Police Department were on patrol, in plain clothes and an unmarked vehicle, when they saw Myriam Figueroa, sitting astride a bicycle, with her hands up and shaking her head, as if signifying, "No." Defendant was standing directly in front of her with his hands in front of him, holding a dark object in his hand. Officer Cifrodelli drove right at defendant and both officers jumped out. At that point, Officer Cifrodelli saw that the object in defendant's hand was a gray cloth bag and observed him hand the bag to Figueroa.
Officer Cifrodelli took defendant, who was acting extremely nervous, away from Figueroa. Defendant was unable to produce any identification and gave the officers several false names: Eugene Julian, Julian Doss and Eugene Dobb. Officer Cifrodelli placed him in the patrol car for security reasons until he could verify his identity through the computer.
Figueroa approached the passenger side front window of the police vehicle. Officer Cifrodelli described her as nervous and fidgety. He asked her where the gray bag was. Figueroa denied having any bag. However, Officer Cifrodelli then observed her reaching up into her armpit area, turning her body away from the officers. Officer Cifrodelli heard the sound of glass hitting and scraping the ground as Figueroa attempted to kick the items under the police vehicle. Not wishing to alert Figueroa to their observations, the officers told her to get her bicycle. As she did, the officers got out of the car and retrieved the gray cloth pouch and twenty-six vials of cocaine on the ground under their car.
Defendant and Figueroa were arrested and taken to police headquarters. Defendant had $118 in his possession and Figueroa had a makeshift crack pipe.
Defendant was indicted on charges of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two); possession of a controlled dangerous substance within 1,000 feet of a school zone with intent to distribute, N.J.S.A. 2C:35-7 (count three); possession of a controlled dangerous substance within five hundred feet of a public park with intent to distribute, N.J.S.A. 2C:35-7.1 (count four); two counts of hindering apprehension or prosecution by giving false information to a law enforcement officer, N.J.S.A. 2C:29-3(b)(4) (counts five and six); and witness tampering, N.J.S.A. 2C:28-5 (count seven).
Defendant's motion to suppress the controlled dangerous substance seized was denied.
Figueroa pled guilty to a charge of possession of controlled dangerous substance pursuant to a plea agreement in which she agreed to cooperate and testify at defendant's trial and, in exchange, received a sentence of three years' probation.
At trial, Figueroa testified that on the day of their arrest defendant called to her and offered her some vials of cocaine to sell. Figueroa acknowledged that she was addicted to drugs at the time and had sold drugs for others in the past. As she was considering his proposal, defendant took a bag from his waistband and offered to let her check the drugs. She was holding the drugs in her hands when defendant told her to put the drugs away because the "street is hot." She understood this to mean that there were police officers present on the street. She concealed the drugs in her bra and, immediately thereafter, saw defendant's eyes widen as the police arrived. Figueroa testified that she was scared and, when she saw defendant in the police car, she dropped the bag containing the drugs to the ground and kicked them under the car, where they were later recovered by the police.
Figueroa also testified that when she was placed in the patrol vehicle with defendant, he repeated to her in a low voice, "that's yours, that's yours." Approximately two weeks after she was released from jail, defendant's brother came to Figueroa and said that defendant wanted to meet with her. At the instruction of the assistant prosecutor, she did not meet with defendant. However, defendant later approached her on the street and offered to pay her $1000 if she changed her testimony. She asked him to leave her alone. Defendant then called to her boyfriend and spoke with him privately. After their conversation, her boyfriend asked Figueroa if she was ...