On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-05-1225.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011
Decided Before Judges Payne and Baxter.
Defendant William Penha appeals from his February 8, 2008 conviction on a charge of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), for which the judge sentenced him to a three-year term of non-custodial probation. On appeal, he raises the following claims:
[I.] THE POLICE OFFICERS LACKED PROBABLE CAUSE TO SEARCH DEFENDANT'S HOME; ACCORDINGLY, THE COURT BELOW ERRED IN FAILING TO SUPPRESS THE PHYSICAL EVIDENCE SEIZED FROM THE PREMISES.
[II.] THE TRIAL COURT ERRED IN FAILING TO CREDIT DEFENDANT WITH ALL APPLICABLE MITIGATING FACTORS.
We reject these contentions, and affirm defendant's conviction and sentence.
The following facts were developed at the hearing on defendant's motion to suppress. On the night of December 16, 2006, Officers Amir Bercovicz and Daniel Newman of the Asbury Park Police Department were crouched along the side of a building at the intersection of Washington Avenue and Jersey Street, which Bercovicz described as "one of the most active spots for drugs in the city." Their attention was focused on the house at 1254 Washington Avenue, where they observed three men, one of whom was defendant, standing in front of the driveway. Over a twenty-minute period, Bercovicz observed "several of our . . . local people who are known for purchasing narcotics" approach the three, quickly engage in an exchange and then immediately leave the area. Bercovicz observed "four or five" such exchanges in the twenty-minute period. Although Bercovicz was unable to see "what was being handed back and forth," his "training and experience" told him that what he had seen was "absolutely consistent with hand-to-hand narcotics transactions."
After witnessing the fourth or fifth such transaction, Bercovicz and Newman, who were dressed in black shirts with the word "police" in yellow capital letters on the front and back, and wearing police badges around their necks, ran toward the three men while yelling "police, stop." The three men ignored the command and "took off very quickly." Bercovicz followed defendant, who ran toward the front door of 1254 Washington Avenue. While defendant struggled with the doorknob, he dropped a clear plastic bag to the ground that contained a number of smaller bags of crack cocaine. Bercovicz quickly picked up the plastic bag from the ground, and pursued defendant into the darkened house, where he could hear a dog barking.
Bercovicz ran up the stairs after defendant and saw him standing next to a table on which there were "all kinds of packaging materials," including clear plastic bags and scales, as well as crack cocaine.
While Bercovicz was struggling with defendant to place him under arrest, Officer Newman entered the house and assisted Bercovicz. Other officers in the Street Crimes Unit responded to the area and were able to apprehend one of the two who ran down Washington Avenue, Brandon Keyes. According to Bercovicz, the third individual was never apprehended.
Newman testified that he was unable to see the actual hand-to-hand transactions because Bercovicz was standing in front of him and blocking his view; however, he was able to see "the behavior and the actions of people coming up quickly, short conversations and then leaving," which "in [his] experience [is] what happens in a hand-to-hand. It's a ...