On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-06-1520.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Koblitz.
Defendant Ralph F. Tuor's motion to suppress evidence was denied after a testimonial hearing. Defendant then entered a plea of guilty to Monmouth County Indictment No. 08-06-1520 charging third-degree possession of heroin, N.J.S.A. 2C:35-10a(1). After waiving his right to have the evidence presented to a grand jury, he also entered a plea of guilty to both counts of Monmouth County Accusation No. 09-05-990, charging second-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree violation of community supervision for life (CSL), N.J.S.A. 2C:43-6.4, as well as Accusation No. 09-06-1393, charging third-degree burglary, N.J.S.A. 2C:18-2.
On July 31, 2009, defendant was sentenced for the robbery to eight years in prison with a mandatory eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, followed by three years of parole supervision. After granting the State's application for an extended term on the indictment pursuant to N.J.S.A. 2C:43-7a(4), the trial court sentenced defendant to five years in prison for possession of heroin to run concurrent to the robbery sentence. He received a concurrent term of eighteen months for violation of CSL and a concurrent five-year term for burglary. Defendant argues that his motion to suppress the heroin should have been granted and that the sentence was excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.
At the motion hearing, Senior Parole Officer Thomas Trovato, who works for the Electronic Monitoring Response Team, defendant and his girlfriend testified to somewhat different versions of the facts leading up to the seizure of heroin in defendant's room at the Neptune Motor Lodge on April 20, 2008. Trovato testified that he was called by the motel manager because defendant's girlfriend had been staying in defendant's room, contrary to the rules of the motel as well as the restrictions of defendant's electronic monitoring program.*fn1
Trovato explained that defendant was in the EMP, which required him to wear an ankle bracelet and permitted him to leave his home only for specific purposes. As one of the conditions of the EMP enumerated in the CSL agreement signed by defendant, a parole officer may visit him at any time. The EMP paid for defendant's accommodations.
Trovato attempted to call defendant after he received notice of the manager's complaint. After he was unable to reach defendant, Trovato went to the Neptune Motor Lodge with another officer. The two officers spoke to both the manager and defendant. They attempted to convince the manager to permit defendant to remain in the motel for a few more days to allow the program an opportunity to obtain another placement for defendant. Trovato testified that, during the half-hour he was in defendant's motel room, he saw through the open bathroom door a white package on the counter near the bathroom sink. He said the bathroom was dark, but he could see clearly into the room because the sun was shining through the bathroom window, illuminating the bathroom counter where the package was located. Based on his extensive narcotics experience, he recognized the package as heroin. He then entered the bathroom and seized the heroin.
Defendant's girlfriend, Jerellyn King, testified that she was the mother of defendant's child and was herself currently incarcerated for possession of drugs. She testified that she left the motel room before the officers arrived. When she left, the toilet was clogged and she closed the bathroom door. She "ple[d] the fifth" with regard to the heroin.
Defendant testified that his girlfriend, King, had come and gone from his room several times that night and that she was under the influence of drugs. He said the bathroom door was closed because he "had this mess in there." Defendant testified that Trovato had to open the bathroom door and search the bathroom before discovering the heroin.
The trial court believed Trovato's testimony that the heroin was in plain view through the open bathroom door, finding his testimony was clear and consistent with his report and defendant's testimony with regard to the lighting in the motel room. The court noted that on direct examination defendant said he had closed the bathroom door, but on cross-examination he changed his testimony to be consistent with King's testimony that she had closed the door. The court found the testimony of King and defendant to be inconsistent on this point and not credible.
Defendant raises the following ...