On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-07-1406.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Tried by jury, defendant Rayquan Brown was found guilty of the lesser-included disorderly person's offense of simple assault, N.J.S.A. 2C:12-1a(1) (count 1); third-degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10a(1) (count 2); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count 3); second-degree possession of a weapon, a handgun, while in the course of committing, attempting to commit or conspiracy to commit the crime of possession of heroin with intent to distribute, N.J.S.A. 2C:39-4.1a (count 4); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count 5). After merger, defendant was sentenced to a five-year term of imprisonment on count 3 (possession with intent to distribute); a mandatory consecutive term of eight years, pursuant to N.J.S.A. 2C:39-4.1d on count 4 (committing a drug offense while in possession of a firearm); and a concurrent eight-year term with a mandatory five-year parole ineligibility period under N.J.S.A. 2C:39-7 on count 5 (convicted persons not to have weapons), for an aggregate term of thirteen years with a five-year parole disqualifier. Defendant appeals, and we affirm.
At 3:15 a.m. on May 18, 2004, Atlantic City Police Officer Gary Stowe responded to a report from a neighbor of a disturbance at an apartment on Magellan Avenue. Upon arrival at the residence, Stowe encountered twenty-two year old Davina Taliaferro, who had cuts and bruises on her neck and face and a swollen jaw. The inside of the apartment itself had signs of a disturbance, namely a hole in the wall and items in disarray, consistent with an altercation. Taliaferro reported that defendant, the boyfriend of her cousin Juanisha Swain, had assaulted her and had left the residence on his bicycle after the attack. An ambulance was summoned and Taliaferro was transported to Atlantic City Medical Center, where she was treated for her injuries, given medication and released that same morning.
Upon her release from the hospital at around 6:00 a.m., Taliaferro flagged down a nearby police car and told Officer Melvin Murray that she had been involved in an altercation, had just been treated at the hospital and needed a ride "home." After Taliaferro provided her address - the specific street and apartment number of the Magellan Avenue residence which police responded to only hours earlier - Murray drove her home. As they pulled up to the residence, Taliaferro expressed concern to Murray that defendant was inside because his bicycle was chained to the rail outside. Murray then radioed for back-up and Officers Black-Taylor, John Devlin and Stowe arrived within seconds.
Using her key, Taliaferro unlocked the door and allowed the officers into the apartment, advising them that defendant occupied the rear bedroom on the second floor. At the officers' direction, Taliaferro remained outside. Once inside, the officers announced their presence and began checking the first floor. Finding no one there, they proceeded to the second floor and after checking several rooms, headed to the rear bedroom. Murray knocked on the door, announced his presence, and when no one answered, proceeded to open the door. Murray saw Swain standing by the dresser and defendant standing on a 45-degree angle inside the archway of a closet that had no door. Because he could only see defendant's left hand, and concerned for his safety, Murray ordered defendant to come out of the closet and show his hands. The officer had to repeat this command three times before defendant finally complied. As defendant turned slowly to face the officer, he dropped an object. Murray heard a hard thud as the object hit the closet floor and suspected it was a weapon.
The officers handcuffed defendant and took him into custody. Searching defendant incident to the arrest, Officer Devlin found thirty-one clear bags stamped "white house," which later tested positive for heroin. Officer Murray advised defendant of his Miranda*fn1 rights. Murray then returned to the closet area where he retrieved a small silver semi-automatic handgun. Defendant was then transported to police headquarters, where he was placed in a holding cell at about 9:40 a.m.
At 10:00 a.m., after speaking with Taliaferro and learning that defendant had already been advised of his Miranda rights, Detective Kevin Burrows met with defendant to determine whether he wanted to give a statement. When defendant indicated he wanted to talk only about the gun, Burrows re-read him his Miranda rights. Defendant waived his rights in writing and agreed to give a taped statement. Appearing alert, cooperative and "anxious" to explain his possession of the weapon, defendant told Burrows that he did not intend to shoot the officers; that the gun was not loaded; that someone had given him the gun; and that it was not his.
On that same day, Burrows took a statement from Taliaferro. According to Taliaferro, on May 18, 2004, she had been temporarily living with her cousin at her apartment on Magellan Avenue for about two months and remained at the residence for a total of about five months. Defendant, who fathered Swain's baby, lived there with Swain as well. In the early morning hours of May 18, the cousins went out for pizza and to play pool. When they returned to the apartment around 1:00 a.m., defendant was inside, throwing Swain's clothes down the steps and into the trash. In her cousin's defense, Taliaferro started throwing the clothes back upstairs. Defendant tried to snatch the clothes from Taliaferro, so she pushed him, and they both fell. When Taliaferro stood up, defendant pushed her into the wall. He then put her in a frontward chokehold for about five minutes where she could not breathe and punched her several times in the face. When defendant finally released the victim from the chokehold, he left the apartment. Taliaferro called 9-1-1 and reported the assault, giving a description of defendant.
At trial, Swain gave a different version of the incident, portraying Taliaferro as the aggressor who had hit defendant in the head with a combination lock, although she failed to mention this fact in her signed statement to Officer Murray on May 18, 2004. According to Swain's trial testimony, Taliaferro struck defendant because she thought that defendant had hit Swain during an argument. Defendant did not strike back, but attempted to restrain her as he took the lock from her. Thereafter, defendant left to take a walk, and Taliaferro called the police. When defendant returned fifteen minutes later, Taliaferro was no longer there and next saw her when she entered Swain's apartment with the police.
Swain denied that Taliaferro resided with her. According to Swain, Taliaferro never had a key to the apartment nor authority to enter the home without Swain's permission. She admitted, however, that police found heroin in defendant's pants pocket and a firearm in the bedroom. Swain confirmed that defendant was a drug user and often saw him use drugs. She had no knowledge of the firearm found in her home and had never seen it before.
After the judge denied defendant's motion to suppress the physical evidence and defendant's statement, trial proceeded for three days following which the jury convicted defendant of the drug and weapons offenses charged as well as the disorderly person's offense ...