On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-04-0537.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 22, 2010
Before Judges Lisa and Baxter.
Defendant I Be Original Allah appeals from his January 24, 2006 conviction. Pursuant to a non-negotiated plea of guilty, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two); third-degree possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count three); and second-degree possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count four).*fn1 On counts two, three and four, the judge sentenced defendant to concurrent six-year terms of imprisonment, with a three-year period of parole ineligibility on each count. Count one was merged with counts two and four. Appropriate fines and penalties were imposed.
We reject defendant's arguments that: 1) he is entitled to withdraw his guilty plea because the judge did not inform him that the entry of such plea would result in the waiver of his right to challenge on appeal the denial of his pretrial motions to suppress evidence and to reveal the identity of the confidential informant (CI); 2) the trial court erred when it refused to conduct a hearing on whether the search warrant was valid; and 3) the sentence imposed was excessive. We do, however, agree with his claim that the convictions on counts two and three should have been merged with his conviction on count four, and remand for the entry of an amended judgment of conviction (JOC). In all other respects, the conviction and sentence are affirmed.
Lieutenant Paul Schuster has been employed by the New Brunswick Police Department since January 11, 1974 and has participated in more than 5,000 narcotics investigations and arrests. On February 17, 2005, Schuster submitted an affidavit to a judge in support of his request for a warrant authorizing a search of defendant's person, apartment and vehicle. Schuster certified that in the early part of November 2004, he was contacted by a known CI who had, in the past, provided information leading to arrests and convictions for narcotics violations. The CI advised Schuster that defendant, who was currently living in a halfway house operated by the New Jersey Department of Corrections in anticipation of his imminent parole, was "wholesaling" bundles and bricks of heroin packets.*fn2
Schuster was familiar with defendant, having arrested him on drug distribution charges over the past twenty years, with such arrests leading to numerous convictions.
In November 2004, after receiving the CI's information about defendant's illegal activities, Schuster provided the CI with cash to purchase heroin from defendant. Police then immediately established surveillance at both defendant's residence and at the pre-arranged meet location. During that surveillance, defendant was observed by police leaving his apartment and entering a 1993 silver Honda Accord, in which he drove to the pre-arranged meet location. There, police observed him engaging in a hand-to-hand transaction with the CI. Moments later, the informant returned to the location Schuster had specified and turned over a quantity of heroin that police had observed him purchasing from defendant. The substance was field tested and reacted positively for the presence of heroin.
Four other controlled buys involving the same CI were arranged between the first week of December 2004 and early February 2005 with the same results. All five narcotic sales by defendant to the CI were identical, with the exception of one instance in which defendant arrived on foot.
After reviewing the information contained in Schuster's affidavit, a judge issued a warrant authorizing the search of defendant's person, vehicle and apartment. On February 18, 2005, police executed the warrant, finding thirty packets of heroin in the car and on defendant's person. Using the keys that they seized from defendant, police entered his apartment, where they found a small quantity of marijuana, $640 in cash, some bullets and two scales commonly used to weigh narcotics.
In September 2005, defendant filed motions to reveal the identity of the CI, to suppress the evidence that had been seized with the warrant, and to dismiss the indictment. Judge Venezia denied the motion to reveal the informant's identity, reasoning that because the informant's information played only a peripheral role in the issuance of the warrant, disclosure of the informant's identity was not required. In particular, the judge observed that the issuance of the warrant was based upon the probable cause derived from Schuster's observation of defendant engaging in a hand-to-hand transaction with the CI, and not upon the CI's statements to police.
Turning to defendant's motion to suppress, the judge denied the motion, concluding that the warrant was supported by probable cause. In particular, the judge concluded that Schuster's thirty years of experience as a police officer and his participation in more than 5,000 narcotics investigations gave him the ability to determine that the activity he observed between ...