On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-10-1784.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2010
Before Judges Rodríguez and Grall.
After defendant Lamont Womack's motion to suppress evidence was denied, he entered into a negotiated plea of guilty to third degree possession of a controlled dangerous substance (cocaine) with intent to dispense or distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; and second degree unlawful possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. The State agreed to dismiss the remaining charge and all charges against co-defendants Charles Womack and Tawana Cooper at the time of sentencing. The agreement bound the State to: waive extended term sentencing; recommend a five-year term with a three-year parole disqualifier on the CDS conviction; and a five-year term with a five-year parole disqualifier on the weapons charge to run concurrent with each other.
The Honorable Barry P. Sarkisian, J.S.C., imposed the recommended sentence. In addition, Judge Sarkisian imposed the mandatory assessments, fees and penalties, and suspension of defendant's driving privilege for six months.
The following proofs were presented at a hearing on the motion to suppress. Jersey City Police Sergeant Anthony Scerbo testified that he was one of the officers involved in an investigation of defendant. Scerbo applied for a "no knock" warrant to search: defendant and apartment 455 at 569 Montgomery Street, Jersey City (the Montgomery Gardens Housing Complex). He prepared an affidavit in support of the application, indicating in pertinent part that:
The affiant [has been] assigned to the Jersey City Narcotics Squad for a period of approximately 5 years during [his] 13 years of Police work. The Undersigned has registered and worked with numerous Confidential Informants. Informants information was essential for the arrest and prosecution of numerous narcotics offenders. The Undersigned has also . . . seized large amounts of narcotics, paraphernalia, and monies associated with the distribution of narcotics. . . .
On 6/26/2007 the Undersigned received Information from a reliable Confidential Informant who will be referred to as CI. CI has provided valuable information on many prior occasions resulting in numerous CDS-related arrests. CI stated that at 569 Montgomery Street, a light skinned black male, approximately 20 years of age, 5'4" in height, approximately 125 pounds, sells cocaine and heroin from apartment #455 of 569 Montgomery Street. CI also stated that above male carries a .45 caliber black automatic handgun with rubber bands on the handle, which CI has seen above male with on many occasions. CI also stated that the above male told him/her that he also has a Glock 9mm handgun. Sgt. [Steven] Trowbridge, the site manager for the Montgomery Gardens Housing Complex, stated that he has reliable information to the fact that the male described above is named Lamont Womack of said location and is known to commonly carry a handgun.
On 6/29/2007, the Undersigned contacted CI and asked if He/She would attempt to purchase cocaine and heroin from above mentioned black male at 569 Montgomery Street apartment 455. CI agreed. CI was brought to a secure location, strip searched and found free of any contraband or money. CI was given two prerecorded five dollar bills (SN#cb20068930a, dl64130385b) and one prerecorded ten dollar bill (gl26678898a). CI was released in the area of 569 Montgomery Street. CI was under a constant surveillance. CI did immediately enter 569 Montgomery Street. CI exited above location after approximately 5 minutes. CI met the Undersigned in a predetermined meet location, again under a constant surveillance. CI immediately gave the Undersigned one white topped glass vial containing suspected CDS cocaine and one glassine bag containing suspected heroin. CI stated that He/She entered 569 Montgomery Street and immediately went to apartment 455. After knocking on the door, a black male, approximately 20 years of age, 5'4" in height, with braided hair and having light skin complexion, asked CI what He/She wanted. The male wore a red/yellow polo type shirt and black jean shorts. CI stated "One and one", which is a common street term for one bag $10.00 bag of heroin and one $10.00 vial of cocaine. CI then handed above male the prerecorded money. Above male closed his apartment door. After about one minute, the above male opened his apartment door and handed CI one white topped vial of cocaine and one glassine bag of heroin. . . . The Undersigned obtained a picture of Lamont Womack. CI positively identified Mr. Womack as the person that had just sold Him/Her narcotics. CI also stated that Mr. Womack often carries a .45 automatic handgun with rubber bands on the handle. CI stated that he/she observed Mr. Womack carrying above handgun and as stated before by CI, Mr. Womack claims that he also has a 9mm Glock handgun.
Further, please note that on a prior occasion, Mr. Womack was arrested in possession of a handgun, and possession of a handgun for an unlawful purpose.
Judge Sheila A. Venable issued the search warrant.
Scerbo executed the search warrant on July 6, 2007 at 9:57 a.m., using a battering ram and rabbit tool. There were three people in the apartment: defendant; his father Charles Womack; and Tawana Cooper. Charles Womack is sixty-three years old.
The search revealed the following contraband: three vials of cocaine; a Smith & Wesson .357 caliber handgun; four rounds of bullets (two rounds were hollow point bullets); and drug paraphernalia (empty vials, black vial tops, and small zip-lock bags) in a hallway closet inside the apartment. Neither a .45 caliber handgun with rubber bands nor a 9MM handgun were found. In addition, Scerbo conceded at the hearing that he did not have ...