On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-03-0075 and 06-09-0361.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and J. N. Harris.
Defendant appeals from her conviction for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (crack cocaine), and a violation of probation triggered by the conviction, which she was serving for a prior drug possession conviction. During trial, defendant objected to the use and moved to suppress statements she made regarding her recent drug use. Her motion was denied as was her application for a new trial, also based on the admission of the statements.
THE MOTION TO SUPPRESS DEFENDANT'S STATEMENT WAS ERRONEOUSLY DENIED.
THE TRIAL JUDGE ERRED IN ALLOWING EVIDENCE OF PRIOR DRUG USE INTO EVIDENCE.
These facts are taken from the trial record. After entering a guilty plea, defendant was convicted under Indictment 06-09-0361 of third-degree possession of a CDS. She was sentenced to a non-custodial two year probationary term.
On October 7, 2008, while serving her sentence for that conviction, defendant was arrested at Perkins Family Restaurant, her place of employment, for possession of a CDS. A fellow employee, Katie Lynn Briggs, and defendant were talking when Briggs noticed a clear packet fall from defendant's shirt. Defendant kicked the packet under the counter and went to wait on customers. Briggs instructed another employee to retrieve the packet that had fallen from defendant's pocket. Briggs was given the packet and consulted with the store manager, who decided to call the police. When the police arrived, Briggs handed them the packet containing two small chunks. A field test revealed the substance was cocaine.
Officer Steven Buss asked defendant to step into the manager's office in the rear of the restaurant. He held up the baggie of cocaine and asked her if she knew what it was. Defendant stated she did not. Officer Buss repeated his question and defendant identified the baggie was crack. He then read defendant her Miranda*fn1 rights. Defendant agreed she would speak to Officer Buss and explained the substance was found by someone else who was now trying to get her in trouble. Officer Buss for a third time asked defendant if she knew what was in the baggie. Defendant identified the substance as crack, adding she knew the baggie contained crack because she "had used it in the past." Officer Buss asked defendant the last time she had used crack and she replied "about two days ago." Defendant added she had ingested Vicodin, which was not prescribed for her, ...