On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-03-0425 and 05-03-0428.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2010
Before Judges Lisa and Alvarez.
Following trial, a jury found defendant Donduran Boatman guilty of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and second-degree possession of a firearm while engaged in distribution-related activities, N.J.S.A. 2C:39-4.1 (count five). Defendant was acquitted of the charge of second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a)(3) (count three), and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-9(e) (count four). He was separately tried and convicted of fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b), charged in a single-count indictment.
At the July 21, 2006 sentencing for all offenses, the trial judge merged count one with count two and imposed an eight-year mandatory extended term sentence, N.J.S.A. 2C:43-6(f), subject to four years of parole ineligibility. Defendant also received a consecutive term of seven years on count five.*fn1 The judge imposed a five-year prison term with five years of parole ineligibility on the certain persons not to have weapons conviction, concurrent to the other terms of imprisonment. Defendant's aggregate sentence was thus fifteen years, subject to five years of parole ineligibility, consecutive to a term of imprisonment he was already serving. Appropriate fines and penalties were imposed. Defendant appeals and we affirm.
On February 8, 2005, at approximately 6:30 a.m., members of the North Brunswick Police Department Narcotics Task Force, including Detective Michael Braun, executed a search warrant for defendant's premises as well as his person at Apartment 3101 Birchwood Court. Braun was the investigating officer who arranged for a confidential informant to make two controlled buys from defendant at his apartment. He also authored the affidavit submitted in support of the issuance of the warrant. The affidavit described defendant and his apartment, and recounted Braun's investigation.
The search warrant and the warrant affidavit identified the premises as follows:
3301 Birchwood Court, North Brunswick, New Jersey, is described as a 1st floor apartment located within the North Brunswick Manor Apartment complex. The building is red brick and building "31" is clearly marked on the front of the building in an orange color with a white background. Apartment 3301 Birchwood Court is located within building 31. The front door is the fourth door to the right when looking at the building. The front door is brown in color with beige panels and has a number "3301" above it.
Defendant's apartment was designated as 3301 throughout all the warrant documents.
When the warrant was executed, Braun walked into an unfinished basement area, where defendant, and a woman later identified as Shontay Booker, were sleeping in a bed in the center of the room. The search warrant affidavit had indicated that defendant stored his drugs in the basement. Upon the officers' entry, defendant and Booker were read their Miranda*fn2 rights. When the search commenced, Investigator Kevin Morton stood on a pipe and examined an opening in the basement ceiling. He felt around the hole and found drugs and a loaded weapon bearing a partially defaced serial number. One bag of suspected drugs was filled with a white powdery substance, while the other was filled with a rocklike substance that had a yellowish tint. Subsequent testing revealed the contents of the bags to be cocaine. Two boxes of sandwich bags and approximately $682 were found on the floor near Booker's side of the bed.
Braun testified at both the pretrial suppression hearing as well as before the jury. During the suppression hearing he stated that defendant and Booker were read their Miranda rights when arrested at approximately 6:45 a.m. but that neither made any statements. At both proceedings, Braun testified that defendant signed a Miranda form acknowledging his rights before he was required to provide even basic arrest "pedigree information."
Defendant asked about Booker's whereabouts after he was taken to the station and placed in a holding cell. Braun informed defendant that Booker was charged with the same offenses as he, at which point defendant volunteered that the cocaine in the apartment belonged to him. Defendant also agreed to give a formal statement and was given his Miranda warnings on tape a third time at the beginning of the recording, at approximately 12:00 p.m. According to Braun, defendant did not appear to be under the influence and expressed a clear understanding of his Miranda rights.
In contrast with Braun's testimony at the suppression hearing, defendant testified that:
[t]he conversation was I told him that my girlfriend [Booker] was pregnant and I didn't want her to be incarcerated with my baby in her stomach because it's a possible chance she could have a miscarriage. He said, well, you know, if you help us, we'll help you. ...