On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-02-0159.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Reisner.
Defendant Khalil Patrick appeals from his conviction for possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1), and from the four year prison sentence imposed. Defendant contends that the trial court should have suppressed evidence of a statement he made to the police, that the verdict was against the weight of the evidence, and that there were errors in the sentence. We find no merit in any of these contentions, and we affirm.
We summarize the trial testimony pertinent to the issues defendant raises in this appeal. The police were patrolling a housing complex where they knew drug dealers typically conducted business in the stairwells of the buildings. The police observed several people looking out a fourth story window, and believed they might be looking for customers to whom they could sell drugs. When they found no drug activity on the fourth floor, the officers climbed to the fifth floor where they found defendant standing in a hallway with a female companion. They observed what looked like a bundle of glassine envelopes of heroin on a window ledge in front of defendant.*fn1
Defendant grabbed the bags with his left hand, put them in his mouth and swallowed them; he also grabbed something else from the ledge with his right hand and swallowed it. The police found chunks of crack cocaine on the window ledge and on a baseboard heater below the window. The police also found a "white powdery residue" on defendant's lips and "on the fingers of his right hand." They arrested him.
The defense presented testimony from defendant's girlfriend, who asserted that on the day in question she saw a woman using drugs in the hallway. She asked defendant, who was visiting her, to tell the woman to go away. According to this witness, as defendant was confronting the woman in the hallway, the police appeared. She testified that although defendant had not been using drugs, the police assaulted him and arrested him. The jury acquitted defendant of tampering with evidence and hindering apprehension and convicted him of cocaine possession.
We next summarize the evidence relating to the motion to suppress. At a Miranda*fn2 hearing, Sergeant Todd Michael Kelly testified that after he took defendant to police headquarters, he arranged for medical personnel to advise defendant about the dangers of swallowing illegal drugs. Before advising defendant of his Miranda rights, Kelly began asking defendant for "pedigree" information such as his address and contact information. During this conversation, defendant spontaneously told Kelly that one of his female companions had "found a drug dealer's stash" and was showing it to defendant when the police arrived. Thinking that the police "would charge him with it," defendant "tried to get rid of it."
In his hearing testimony, defendant contended that he was well aware that anything he said could be used against him later, and he vehemently denied making the statement. The trial judge concluded that Kelly was a more credible witness. She found that defendant made a spontaneous statement that should not be suppressed. However, the State did not introduce the statement at the trial.
On this appeal, defendant presents the following points for our consideration:
POINT I: THE TRIAL COURT'S EVIDENTIARY RULING THAT DEFENDANT-APPELLANT'S STATEMENT MADE SUBSEQUENT TO HIS ARREST AND WITHOUT BENEFIT OF HIS MIRANDA WARNING ...