On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-10-1449.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011
Before Judges Grall and LeWinn.
Defendant was indicted for third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Tried to a jury, defendant was convicted of the drug offense and acquitted of the weapons offense. He was sentenced to a term of five years imprisonment, with a recommendation that he receive substance abuse treatment while incarcerated; mandatory fines and assessments were also imposed.
The pertinent trial evidence may be summarized as follows. On the night of July 15, 2006, South Plainfield Police Officer Mark Bullock was patrolling the halls of the Best Western Hotel with Officer Michael Grasso. Bullock explained that the police regularly patrolled the hotels because they were the site of "a lot of problems" such as underage drinking, narcotics and burglaries.
While patrolling the hallway in front of room 229, Bullock "smelled the odor of burnt marijuana coming from the room," and observed that a towel had been "shoved underneath the door" from inside the room. The officers knocked on the door and "announced it was the police." Defendant opened the door "a minute or two" later, and allowed the officers to enter the room. Inside the room the officers also encountered a female later identified as Erica Spivey.
Upon entry, "the smell of the burnt marijuana was even stronger. There was still . . . a haze . . . in the room because the window was shut." Defendant walked toward the window and offered to open it. Bullock observed defendant looking intently at a book bag located on the floor directly under the window. Bullock ordered defendant to sit on the bed, which he did; the officer observed a folded penknife and four marijuana roaches in an ashtray on the night table.
Bullock then noticed "two large bulges" in defendant's front pants pockets. Grasso had defendant stand up and patted him down. Grasso removed a cell phone, some keys, and one small bag of suspected cocaine from defendant's pockets. Defendant said, "Personal use." Grasso then handcuffed defendant.
Bullock walked over to the book bag and saw the butt of a handgun sticking out. He notified Grasso and removed the gun from the bag. Defendant said, "she [Spivey] doesn't know anything about it." Defendant was taken into custody and charged with the two offenses.
At the conclusion of the State's case, defendant moved for a judgment of acquittal on the weapons charge, contending that the State had failed to show that the contents of the book back "did not in fact belong to . . . Spivey . . . ." The book bag had not been moved into evidence and Spivey did not testify at trial. Applying State v. Reyes, 50 N.J. 454, 458-59 (1967), the judge denied the motion.
Defendant testified. He stated that the bag containing the gun had belonged to Spivey. When Bullock retrieved the gun and asked who owned it, Spivey said she did not know. Defendant had his own two bags in the room; he did not touch the bag in which the gun was found. Defendant admitted to possessing the cocaine found in his pocket, adding that "sometimes [he] stash[es] stuff in that pocket and . . . might forget it's there . . . ."
In defense counsel's summation she told the jury:
With respect to [defendant] taking the stand, . . . [h]e told you it was his cocaine. It's not likely that somebody would take the stand under oath and admit to having cocaine and not be telling the truth . . . . So I would submit to you that he was telling the truth ...