On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-01-0103.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 26, 2011
Before Judges A. A. Rodriguez, Sabatino, and Ashrafi.
Following a two-day jury trial in November 2009, defendant Karlow
Anderson was found guilty of third-degree possession of a controlled
dangerous substance ("CDS"), specifically crack
cocaine, N.J.S.A. 2C:35-10a(1). The jury acquitted defendant of the
two other remaining counts in the indictment, which had charged him
with possession of CDS with the intent to distribute it, N.J.S.A.
2C:35-5a(1) and -5b(3); and possession of CDS with the intent to
distribute it near a public park, N.J.S.A. 2C:35-7.1.*fn1
The trial court sentenced defendant to two years of probation
and a seven-month suspension of his driver's license.
Defendant now appeals his conviction, contesting several aspects of the pretrial and trial proceedings. For the reasons that follow, we affirm.
The State's proofs at trial adduced the following. At approximately 9:00 p.m. on October 7, 2008, two Elizabeth police officers on patrol in a marked vehicle observed two African-American males standing on the sidewalk in front of a residence. Defendant was one of the two men who the officers observed. At the time of the officers' initial observation, the men on the sidewalk did not appear to be doing anything wrong. However, as the police approached, one of the officers, Wilfredo Torres, saw that defendant "nonchalantly started walking away."
Officer Torres got out of the patrol car with his flashlight. He followed defendant, but neither he nor his partner, Officer Michael Barros, spoke to defendant. As Officer Torres walked towards defendant, Officer Barros approached the other individual, who was later identified as "Drayton."
Officer Torres followed defendant into an alleyway. The alleyway was located between two homes and was fenced off in the back. Torres estimated its dimensions to be about eight feet wide and fifty feet long. As Torres went into the alleyway he shined his flashlight ahead of him because, as he testified, "[t]he alleyway was dark [with] no lighting in there, whatsoever."
Officer Torres then observed defendant make a "flicking" motion with his hand and discard an object. The officer asked defendant what he was doing. Defendant responded that he was urinating. At that point, the two officers detained defendant.
Officer Barros searched the alleyway for the object that defendant had just discarded. He retrieved a plastic bag that was filled with smaller plastic bags containing suspected CDS. Defendant was then placed under arrest. A subsequent laboratory test confirmed that 2.31 grams of crack cocaine had been retrieved from the bag. Defendant was then indicted for CDS offenses relating to that cocaine.
Prior to trial, defendant moved to suppress the cocaine because it had been recovered by the police as the result of a warrantless pursuit of defendant into the alleyway. The trial court denied that motion, concluding that Officer Torres's conduct in following defendant into the alleyway, and the subsequent recovery of the discarded bag, were constitutional.
During the short trial of this case, the State presented testimony from Officers Torres and Barros. The State also presented opinion testimony from Detective Martin Lynch of the Union County Prosecutor's Office, an expert in narcotics distribution. Defendant did not testify and he did not present any witnesses on his own behalf. On the second day of deliberations, the jury convicted defendant of the simple possession count and acquitted him of the intent-to-distribute CDS and public park counts. Two months later, the trial court imposed the previously-noted probationary sentence, which defendant does not contest on appeal.
Defendant raises the following points for our ...