On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-09-1288.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Miniman.
Defendant, Malik Palms, appeals from his conviction for third-degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10a(1), and possession of heroin with the intent to distribute it, N.J.S.A. 2C:35-5a(1) and -5b(3). He appeals as well from his extended term sentence on the conviction for possession with intent to distribute heroin of ten years in custody with a five-year parole disqualifier. See N.J.S.A. 2C:43-6f and N.J.S.A. 2C:43-7a(4). Defendant was acquitted of charges of possession with the intent to distribute heroin within 1,000 feet of a school, N.J.S.A. 2C:35-7, and possession with the intent to distribute heroin within 500 feet of public housing or a public park, N.J.S.A. 2C:35-7.1.
On appeal, defendant makes the following arguments:
DEFENDANT'S SUPPRESSION MOTION WAS DENIED IN ERROR BECAUSE THERE WAS LACK OF PROOF THE INFORMANT'S TIP WAS CREDIBLE AND THE TESTIMONY USED FOR CORROBORATION THROUGH SURVEILLANCE WAS INCONSISTENT.
DEFENDANT'S MOTION TO PRODUCE THE INFORMANT FOR CROSS EXAMINATION WAS DENIED IN ERROR WHICH VIOLATED DEFENDANT'S RIGHT TO CONFRONTATION.
COUNSEL'S MOTION TO SET ASIDE THE VERDICT WAS ERRONEOUSLY DENIED BECAUSE THE INCONSISTENT NATURE OF THE JURY'S VERDICT WAS A RESULT OF PASSION AND PARTIALITY AND WAS AGAINST THE WEIGHT OF EVIDENCE.
THE TRIAL COURT'S RULING THAT THE JERSEY CITY POLICE POLICY ON INFORMANTS WAS A COLLATERAL ISSUE AND COULD NOT BE USED TO CROSS EXAMINE STATE WITNESSES PREJUDICED THE DEFENSE IN ITS ABILITY TO PROPERLY CHALLENGE THE CREDIBILITY OF THE WITNESS.
REMAND FOR RECONSIDERATION ON SENTENCE IS REQUIRED BECAUSE DEFENSE COUNSEL FAILED TO MAKE THE COURT AWARE OF MITIGATING FACTORS THAT WOULD HAVE AFFECTED THE LENGTH OF DEFENDANT'S SENTENCE.
Prior to trial, defendant challenged the seizure of drugs found in his possession, claiming that the information relayed by a confidential informant was insufficient to establish probable cause for his arrest. A suppression hearing was therefore conducted. The evidence adduced at the suppression hearing demonstrated that, on May 11, 2005, Jersey City Police Officer Michael Burgess was working as a narcotics surveillance officer. In the course of his duties, Burgess asked a confidential informant with whom he had previously worked successfully if he was aware of an individual named "Shake." The informant stated that Shake made deliveries of narcotics, he drove a maroon four-door Ford Taurus, and he lived in a third-floor apartment at a specified address. The car was said to be parked on the street where Shake lived, not too far from Shake's apartment. Shake was described as a black male of stocky build who was approximately five feet ten inches in height. Burgess passed this information on to fellow officer Anthony Goodman, who went to the location while the informant ordered two bricks of heroin by telephone. The call was placed at 9:35 p.m. and occurred within Burgess's hearing. Once the call was complete, the informant forecast that, in a few minutes, Shake would be "on his way." The informant was then released, and Goodman was advised to be on the lookout for the target. Burgess, along with two other officers, set up a perimeter unit.
Soon thereafter, Goodman informed Burgess that a black male with a stocky build was walking down the street, west to east, toward Shake's apartment. Thereafter Goodman advised that the individual was leaving Shake's apartment building and walking west toward the Ford Taurus. As the target entered the Ford and started the engine, the officers converged, boxing in the vehicle. Its occupant was subsequently identified as defendant. Defendant was ordered to turn off the car and exit the vehicle. He was then placed under arrest. Two bricks of heroin were found in his rear left pocket, and $307 in cash was seized.
On cross-examination, Burgess stated that he had known the confidential informant for two and one-half years and that he had received information from him on nine occasions. All nine resulted in arrests, and the majority of the individuals arrested had pled guilty. On one occasion, the informant stated that an individual was going to be dropping off a substantial amount of narcotics with another individual. Both were arrested, and the narcotics were seized. Trial was pending.
Officer Goodman also testified at the hearing. Goodman testified that he was informed in a call from Burgess to look out for a black male with medium complexion, a stocky build and short hair, who was about five foot ten inches in height and was wearing a blue baseball hat. The location of the individual's apartment was also given, and Burgess stated that he made his deliveries from apartment six. Goodman was also told that the individual drove a maroon Ford Taurus, which he used for narcotics deliveries. The vehicle's license plate number was given.
Goodman testified that he went to the location and set up surveillance from a site where he could see both the apartment and the car. Approximately five minutes after he had been informed by Burgess that the order had been placed, he observed a black male walking down the street who fit the description given of Shake. The individual then entered the building in which Shake's apartment was allegedly located, utilizing a key, and soon thereafter, a light went on in a third-floor room. The individual then exited the building and walked in the direction of the Ford. The person had white objects in his left hand that were approximately the size of a deck of cards. Goodman recognized the objects by their shape and packaging as bricks of heroin. As the individual approached the Ford, he placed the bricks in his back left pocket. He then entered the car and started the motor. At this point, Goodman radioed the perimeter patrol to move in and stop the individual.
In an oral decision rendered after the hearing's conclusion, the motion judge denied defendant's suppression motion. In doing so, the judge ruled that the State had demonstrated that the informant was reliable. Moreover, he found that the informant's tip, along with Officer Goodman's observations and his identification of the heroin in plain view, provided probable cause to lawfully stop, arrest and search defendant without a warrant. In this regard, the judge relied particularly on the Court's decisions in State v. Smith, 155 N.J. 83, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1998), and State v. Birkenmeier, 185 N.J. 552 (2006).
Defendant also moved for disclosure of the identity of the informant. However, the motion judge found that the informant was not an essential witness because he was not an active participant in the criminal activity. In this regard, the judge relied on State v. Oliver, 50 N.J. ...