On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-04-0499.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2010
Before Judges R. B. Coleman and J. N. Harris.
On April 21, 2005, a Passaic County Grand Jury returned an eight--count indictment charging defendant Dwayne Watt with several drug and weapons offenses: fourth-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(3) (count one);*fn1 fourth-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) (count two); third-degree distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-5(a) and -7 (count three); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(11) (count four); third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a) and -7 (count five); second-degree possession of a rifle while committing an N.J.S.A. 2C:35-7 offense, N.J.S.A. 2C:39-4.1 (count six); third-degree possession of a weapon, N.J.S.A. 2C:39-5(c)(1) (count seven); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count eight).
Defendant was tried over a three-day period before Judge Nestor F. Guzman and a jury on these charges. The jury convicted defendant on all counts. On September 11, 2006, Judge Guzman sentenced defendant to an aggregate term of eleven years incarceration with three years of parole ineligibility,*fn2 and imposed appropriate fees and penalties.
Defendant appeals the denial of his motion to suppress and seeks the reversal of his conviction due to improper comments made to the jury by the prosecutor. Lastly, defendant claims that his sentence is excessive and should be reduced. Except for the remand for resentencing on count three, we affirm.
These are the facts developed at the motion to suppress. The only persons to testify at the suppression hearing were two government witnesses. Defendant elected not to testify and he did not present any other witnesses at that time.
Shortly after noon on October 27, 2004, Paterson Detective Orlando Robinson was engaged in a surveillance investigation in a neighborhood known for street gang activities and where the police had received numerous complaints of illicit drug trafficking and violent crimes. Through binoculars, Detective Robinson observed two persons -- defendant and a companion -- briskly walking along Tenth Avenue. The fast pace of their walk having attracted his attention, Detective Robinson moved his unmarked motor vehicle to a position where he could readily observe the two approach the driveway of a dwelling at 411 East 28th Street.*fn3 The detective watched as defendant strode down the driveway to a white automobile parked just outside the garage, approximately seventy-five feet from the street. Defendant opened the front passenger side door, reached inside, then closed the door, and returned to the accompanying person who had waited near the street. The two then proceeded to walk away towards Tenth Avenue.
During this watchfulness, Detective Robinson noticed defendant reach into his left front pants pocket and remove an object that he handed to his companion. At the same time, the companion handed defendant what appeared to be United States currency. Believing that he had just witnessed a hand-to-hand drug transaction, Detective Robinson contacted backup police officers and described to them what he had just observed.
Detectives Marvin Sykes and Evelyn Gonzalez responded to the call and after observing the suspects themselves, made arrests. Defendant was discovered to be in possession of United States currency and his cohort possessed three bags of marijuana. Armed with this information, two other detectives, George Vazquez and Vaughn Patterson, were dispatched to the location of the white automobile and walked to the end of the driveway where it was parked. Detective Vazquez looked in the rear of the vehicle and immediately noticed a large box on the rear seat with "the tip of [a] rifle sticking out of the box." The detective also saw a label on the box that said ".22 caliber."
Upon this observation of the rifle, Detective Vazquez explained, "as soon as I recognized the rifle in -- inside the back of the vehicle I -- I -- it had to -- it had to be retrieved as far as I was concerned. I'm not [going to] take a chance of losing a rifle and having the rifle on the streets." The detective further made clear his concern of "[h]aving that car pull out, having some -- some -- somehow, some way that car leaves and -- or having someone -- [some]body come in there and take that rifle." Thereupon, the detectives entered the unlocked automobile to secure the weapon, and at the same time they recovered a large, open brown paper bag that contained numerous smaller bags of suspected marijuana. Inside the ...