On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-05-0512.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 12, 2011 -
Before Judges Baxter and Nugent.
Following his unsuccessful attempt to suppress evidence, defendant Byron Jones proceeded to trial and a jury convicted him of third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); and second-degree possession of a CDS, cocaine, with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two). At sentencing, the court merged count one into count two, granted the State's motion to sentence defendant to an extended term, and sentenced defendant to a prison term of thirteen years with six-and-one-half years of parole ineligibility pursuant to N.J.S.A. 2C:43-6(f). The court also imposed appropriate fines and penalties. Defendant raises the following points for our consideration on appeal:
I. THE SEARCH OF JONES'S GARBAGE WAS UNCONSTITUTIONAL BECAUSE LAW ENFORCEMENT PERSONNEL LACKED REASONABLE SUSPICION TO CONDUCT A CANINE SNIFF.
II. THE TRIAL COURT ERRONEOUSLY CONCLUDED THAT DEFENDANT'S TWELVE-YEAR-OLD CONVICTION WOULD BE ADMISSIBLE AT TRIAL IF DEFENDANT ELECTED TO TESTIFY.
III. THE TRIAL COURT FAILED TO ADEQUATELY CONSIDER EVIDENCE OF HARDSHIP AND FAILED TO FIND MITIGATING FACTOR ELEVEN RESULTING IN AN EXCESSIVE SENTENCE.
We conclude the canine sniff of defendant's garbage bags was supported by the investigating detective's reasonable suspicion that the garbage contained evidence of narcotics offenses. We also conclude that the trial court did not abuse its discretion when it admitted defendant's prior conviction and when it imposed sentence. Accordingly, we affirm.
On January 31, 2007, Gloucester County Prosecutor's Office Narcotics Strike Force Detective Peter J. Ferris prepared an affidavit for a warrant to search two garbage bags he had seized from the curbside of a residence in Gibbstown, New Jersey (the residence). The following facts are derived from the affidavit.
Ferris had received information "[o]ver the past several months . . . from several law enforcement agencies" that a "black male identified as Byron J. Jones, Jr." was staying at the residence and "distributing marijuana and cocaine throughout the Gloucester County area." On several occasions, Ferris had personally observed defendant exiting the residence.
Ferris conducted an inquiry through the Pennsylvania Bureau of Motor Vehicles and learned defendant had a Pennsylvania driver's license with a Philadelphia address. Ferris also ran a Pennsylvania and New Jersey "Criminal History Check" which revealed, among other things, that defendant had four arrests in Pennsylvania involving CDS in 1988, 1994, and 2005; and one CDS-related arrest in New Jersey in 2003. Two of the Pennsylvania arrests resulted in convictions for which defendant received probationary sentences. Following the 1994 Pennsylvania arrest for possession with intent to distribute a CDS, defendant pled guilty and the judge sentenced him to a prison term of six to ten years. The Pennsylvania records did not include a disposition for the 2005 arrest. Although defendant was arrested in New Jersey in 2003 and charged with, among other things, possession of a CDS, he was convicted only of violating a municipal ordinance and the remaining charges were dismissed.
On January 7, 2007, Ferris and another detective removed two medium-size white plastic garbage bags and one medium-size black plastic garbage bag from the curb in front of the residence and stored them in the Gloucester County Prosecutor's Office. Two days later, a "narcotic detection K-9" sniffed the three garbage bags and reacted positively to one white garbage bag and to the black garbage bag. The dog's trainer confirmed that the dog's positive reaction indicated the presence ...