On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-07-1614.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2009
Before Judges Fisher and Espinosa.
Defendant Diron Wright pled guilty to possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2), a second degree offense, pursuant to a plea agreement. He appeals from the denial of his suppression motion and his sentence. We affirm.
At the motion hearing, Detective Thomas Nuccio testified that he became employed by the Monmouth County Prosecutor's Office in September 2004. Prior to that, he was employed by the Red Bank Police Department for over eighteen years. During his employment in Red Bank, he was involved in several criminal investigations that entailed contact with defendant. On one occasion, he executed a search warrant at defendant's home that resulted in the recovery of narcotics.
After joining the Monmouth County Prosecutor's Office, Detective Nuccio was assigned to the major crimes unit and dispatched to the tactical narcotics team (TNT Unit) working in Asbury Park. A few weeks before February 17, 2006, he received information that defendant was involved in the sale and distribution of cocaine. The source of this information was an informant who had provided reliable information in the past. Detective Nuccio testified that he had worked with this informant in another investigation "where his information [had] been right on point and everything was on the up-and-up." In addition, he knew of two other detectives in his office who had obtained arrests resulting in narcotics convictions after using information provided by this informant.
The informant told Detective Nuccio that defendant was involved in the distribution of powder cocaine from an unidentified location in the area of Bergh Street in Asbury Park. The informant advised that defendant was working for Contemporary Motor Cars in Little Silver; that he drove a burgundy color sport utility vehicle (SUV); and that he resided at a specific street address ("the residence") with his fiancee and children. Detective Nuccio was able to corroborate defendant's employment as well as the description of the car driven by defendant. Surveillance conducted at the residence resulted in observations of the SUV at that address and of defendant coming in and out of the residence on several occasions. Further investigation disclosed that the SUV was registered to defendant's girlfriend.
On February 17, 2006, the informant provided specific information about defendant's activities for the day. According to the informant, defendant would go to his residence after work and take his son to get a haircut. Afterward, defendant would go to a location on Bergh Street with a quantity of cocaine to "set up shop" and sell the cocaine.
Detective Nuccio set up surveillance at defendant's residence. Detective Nuccio followed defendant and his son to the barber shop and maintained surveillance while they got haircuts. He contacted other law enforcement officers to assist him. A black female left the residence, drove the burgundy SUV to the barbershop, picked up defendant and his son, and the three returned to the residence. Within fifteen minutes, defendant left the residence and was picked up by a cab.
Detective Nuccio maintained surveillance of the cab and, as it turned onto Bergh Street, he instructed two members of the surveillance team to stop the cab. The overhead lights of a police vehicle were activated. Before the cab stopped, defendant jumped out of the rear passenger door and ran. Detective Nuccio observed defendant tossing items with both hands as he ran. While other officers pursued defendant on foot, Detective Nuccio retrieved the items discarded by defendant. He recovered a digital scale that had a "white powdery residue all over the top of it," and shouted to the other officers what he had picked up. In addition, he recovered a cell phone and keys. Detective Nuccio was able to see other officers tackle defendant, who flailed about on the ground before he was secured and handcuffed.
Detective Nuccio confronted defendant and advised him of the investigation he had been conducting for the last few weeks. He conducted a search of defendant at the scene and found eleven plastic baggies in one pocket, a cell phone in another pocket and a bag of approximately thirty grams of cocaine inside defendant's jacket pocket.
Detective Nuccio read Miranda*fn1 warnings to defendant, who agreed to waive his rights and answer questions. Detective Nuccio told defendant that, based upon information he had received, he believed that defendant had additional drugs at his house and asked if he would consent to a search of the residence. Defendant stated that he did have drugs at his home and was willing to cooperate and turn the drugs over to the police. Detective Nuccio also reviewed a consent to search form with defendant. Defendant indicated that he understood and initialed the form to reflect his waiver of various rights but declined to waive his right to be present while the search was conducted. Defendant signed the consent to search form. Defendant was transported to his residence, where he surrendered two additional packages of cocaine.
An indictment was returned against defendant, charging him with possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); possession of cocaine with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three); possession of cocaine with intent to distribute within 500 feet of a public ...