On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-02-0462.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2011
Before Judges Cuff and St. John.
Defendant Tavares Dillard appeals from an order denying his motion to suppress evidence. We affirm.
In February 2007, an Essex County grand jury returned an eight count indictment charging defendant with: third degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute it, contrary to N.J.S.A. 2C:5-2 (Count One); fourth degree possession of marijuana, contrary to N.J.S.A. 2C:35-5b(12) (Count Two); third degree possession of marijuana with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (Count Three); third degree possession of Ecstasy, contrary to N.J.S.A. 2C:35-10(a)(1) (Count Four); third degree possession with intent to distribute Ecstasy, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (Count Five); third degree possession with intent to distribute Ecstasy within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (Count Six); second degree possession of a firearm during the commission of a drug offense, contrary to N.J.S.A. 2C:39-4.1 (Count Seven); and fourth degree violation of firearm permit regulations, contrary to N.J.S.A. 2C:58-3(a) (Count Eight).
After his motion to suppress evidence was denied, defendant entered a conditional plea of guilty to counts three, six, and eight in the indictment. All other charges were dismissed. In accordance with his plea agreement, defendant was sentenced to three concurrent sentences: five-years imprisonment with twoand-a-half-years of parole ineligibility for the marijuana charge; five-years imprisonment with three years of parole ineligibility for the Ecstasy charge; and eighteen-months imprisonment with nine months of parole ineligibility for the firearm regulation charge. The trial judge also imposed monetary penalties as required by statute.
On defendant's motion to suppress evidence, the trial judge conducted a hearing during which one police witness testified, Officer Carlos Rivera, a twelve-year veteran, and a member of the Newark Police Department's Third Precinct Narcotics Bureau. Officer Rivera testified that he received training in the field of illegal narcotics, undertook investigations, and has made numerous arrests.
On November 9, 2006, at 9:45 p.m., Officer Rivera was in plain clothes, and accompanied by five other police officers, including Sergeant DiFabio and Officer Cosgrove. The Narcotics Division was assigned that night with patrolling Newark streets to investigate narcotics complaints.
Officer Rivera was the front passenger in an unmarked vehicle on patrol when he observed three African-American males, two of whom were later identified as defendant and co-defendant, Donyel Reaves, on the porch of 42 Seymour Avenue, a location of prior narcotics arrests.
When the officers exited their vehicles and identified themselves, Reaves removed a plastic bag from his pocket, dropped it on the porch, and then ran into the house with the other men. Officer Rivera pursued them on foot. When Reaves tossed the plastic bag, Officer Cosgrove recognized its contents as suspected CDS and yelled, "9-0-8," which meant there was contraband present, and the individuals fleeing should be arrested. Inside the plastic bag were eighteen smaller, sealed baggies containing substances resembling marijuana, plus ten blue pills resembling Ecstasy.
Defendant and Reaves entered a hallway inside the house, and then ran into the last apartment on the right. Officer Rivera continued running after defendant and Reaves, but when he reached the door of the apartment, it was locked. He hit the door with his shoulder approximately three times and forced it open. He entered the apartment accompanied by Sergeant DiFabio and proceeded to an interior hallway leading to the kitchen, where he observed defendant holding a shotgun. Officer Rivera unholstered his service weapon and ordered defendant to put the shotgun down. Defendant complied by placing the shotgun on the floor. He was then arrested.
Judge Michael A. Petrolle, in a comprehensive oral opinion, denied
defendant's motion to suppress the seized CDS and shotgun. The motion
judge contrasted the facts and holding in State v. Williams, 192 N.J.
1 (2007), with the facts before him, noting that here the officers
simply walked towards the porch, displaying their badges, and
addressing the individuals. They did not initially chase them. The
judge noted that Reaves discarded the bag even though he was not being
detained by the police officers and that, in fact, he had the right to
walk away. Citing State v. Josey, 290 N.J. Super. 17, 24
(App. Div.), certif. denied, 146 N.J. 497 (1996), the motion judge
determined that once the police identified the suspected CDS, they
were in "hot pursuit" when they pursued defendant into the house and
forcibly entered the apartment.
When an appellate court reviews the factual findings made by a trial judge during a hearing on a defendant's motion to suppress, the reviewing court is obliged to uphold the judge's findings of fact "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted). An appellate court "must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the feel of the case, which a ...