On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 07-09-1548 and 08-07-0960.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2011
Before Judges Messano and Yannotti.
Defendant Ibn F. Bailey was tried before a jury and found guilty of possession of controlled dangerous substances (CDS) with intent to distribute and other offenses. Defendant appeals from the judgment of conviction entered on January 30, 2009. We affirm.
Defendant was charged with third-degree possession of a CDS (phencyclidine or PCP), N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of a CDS (PCP) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); third-degree possession of a CDS (cocaine), N.J.S.A. 2C:35-10(a)(1) (count three); third-degree possession of a CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count four); and third-degree hindering his apprehension or prosecution, N.J.S.A. 2C:29-3(b) (count five).
Defendant thereafter filed a motion to suppress the evidence obtained by the police after an investigatory stop and subsequent pat-down. The trial court conducted a hearing on the motion and on March 10, 2008, placed a decision on the record finding that that the police had lawfully obtained the evidence. The court entered an order on March 11, 2008, denying the motion to suppress.
At the trial, the State presented evidenced that on June 10, 2007, Michael Newman (Newman) was approached by three African-American men on a street corner in Seaside Heights. One of the men asked Newman if he wanted to buy "crack" or "dust." Newman told the man that he did not want to purchase the drugs. Newman reported the incident to Officer Richard Roemmele (Roemmele) of the Seaside Heights Police Department (SHPD), who was nearby.
Roemmele approached the three men. When they saw Roemmele, they started to walk away. Roemmele ordered the men to stop and they complied. Defendant was identified as one of the men. He was found in possession of a plastic bag containing seventeen smaller bags of cocaine, and another bag containing eight tinfoil packets of phencyclidine (PCP). Shantilal Patel, a chemist, testified that the bags seized from defendant contained
1.6 grams of cocaine and 1.4 grams of PCP.
Lieutenant Joseph Vitiello (Vitiello) of the SHPD was qualified as an expert in the field of narcotics. In response to a hypothetical question, Vitiello testified that a person with 1.6 grams of cocaine in seventeen individual baggies was possessing the drugs for distribution. Vitiello provided the same opinion about a person with 1.4 grams of PCP in eight individually-wrapped packages.
Defendant did not testify on his own behalf. The jury found him guilty on all counts. He was sentenced to an aggregate term of eight years of incarceration. This appeal followed.
Defendant raises the following arguments for our consideration:
THE ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS SHOULD BE REVERSED.
(A) THE POLICE OFFICER DID NOT POSSESS THE REQUIRED LEVEL OF SUSPICION TO CONDUCT AN INVESTIGATIVE STOP OF THE DEFENDANT.
(B) THE POLICE OFFICER DID NOT HAVE A SPECIFIC AND ARTICULABLE BASIS TO CONDUCT A PAT-DOWN ...