On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-06-00450.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Baxter and Koblitz.
Defendant Herman Proctor was indicted on one count of second-degree conspiracy to distribute a controlled substance, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(2), and N.J.S.A. 2C:5-2, and one count of second-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2). Defendant appeals his conviction after a jury trial of the third-degree lesser included charge of possession of CDS, N.J.S.A. 2C:35-10(a)(1). He was acquitted of the other charges in the indictment. Defendant argues his motion to suppress the drugs found should have been granted, his confession should have been suppressed, the trial judge improperly failed to hear his motion to dismiss at the end of the State's case, the jury verdict was inconsistent, the obligation to stay current on child support is an improper condition of probation and his two-year probationary sentence is excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant's cousin, Azikwa Rustin, was selling cocaine from the residence where he lived with defendant. The Somerset County Prosecutor's Office obtained an arrest warrant for Rustin and a search warrant to search the entire first floor of the residence for narcotics and paraphernalia. At 3:45 p.m. on May 18, 2008, three officers found four individuals in the living room and defendant in his bedroom, which did not have a door separating it from the rest of the living space. The five individuals were all handcuffed for the officers' safety and because a hostile crowd of seventy-five to one hundred people was gathering outside the house. Due to a health condition, defendant was allowed to remain in the bedroom where his breathing apparatus was located.
After back-up officers arrived, Officer Belgrave "made a statement that if anyone knew where there were any drugs, just to let us know." Defendant responded, "look inside the boot." The boot was at the foot of the bed on which defendant was sitting. Officer Belgrave peered inside defendant's work boot and saw what appeared to be drugs. He did not remove the drugs, but waited for the arrival of additional officers and the K-9 unit, who were already en route. The dog subsequently searched the entire floor, locating forty tinfoil folds containing cocaine in defendant's boot. Defendant's birth certificate and business cards were found in his bedroom as well. Crack cocaine was also found in a smoke detector in defendant's nephew's bedroom.
Defendant was arrested and transported to the prosecutor's office. Officer Gelardi, who was not present during the search, read defendant the standard Miranda warnings nearly three hours later at 6:44 p.m., and defendant waived his rights and gave a full statement. Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694, 726 (1966). Defendant admitted holding the drugs for his cousin, Rustin, who he knew was selling drugs.
At the close of the State's case, defendant moved for a judgment of acquittal. R. 3:18-1. The trial judge denied the motion, finding that a reasonable jury could convict defendant on both charges. After the conclusion of the trial, the trial judge gave defendant ten days to inform him whether he intended to renew his application for a judgment of acquittal. R. 3:18-2.
Three months after the verdict, at the April 3, 2009, sentencing hearing, defendant attempted to renew his motion for a judgment of acquittal, but the trial judge refused to entertain the late application. The trial judge sentenced defendant to two years' probation, with the conditions that he pay a $50 Victims of Crime Compensation Board penalty; a $75 Safe Neighborhoods fee; a $30 Law Enforcement Officers Training and Equipment Fund penalty; a $1000 Drug Enforcement and Demand Reduction penalty; and a $50 forensic lab fee. Defendant was also required to undergo alcohol and drug treatment if recommended after an evaluation and to make regular child support payments.
On appeal, defendant raises the following arguments,
POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE.
A. The Police Did Not Have Probable Cause to Arrest Defendant.
B. The Evidence Must Be Suppressed As The Arrest Warrant Made No Mention of Herman Proctor And Therefore His Arrest Was an Illegal Warrantless Arrest.
POINT II DEFENDANT'S STATEMENT AT THE POLICE STATION MUST BE SUPPRESSED AS THE POLICE VIOLATED DEFENDANT'S FIFTH AMENDMENT RIGHT AND STATE ...