On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-02773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and J. N. Harris.
Defendant Fuquan Moore appeals from a judgment of conviction following his guilty plea to second-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(b)(2), and second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b). Moore alleges error in the Law Division's denial of his motion to suppress evidence, and he contends his sentence is excessive. We affirm.
The following facts are derived from the testimony and documentary evidence at the suppression hearing. In early May 2008, as part of an investigation related to the sale of illegal drugs, City of Orange Detective Robert Stefanelli engaged a confidential informant to participate in several carefully monitored purchases of crack cocaine from persons inside a building on Chapman Street. Detective Stefanelli provided the informant with a precise amount of money to purchase illegal drugs, checking to make sure that the informant had no additional funds or contraband. Under the detective's surveillance, the informant entered the premises on four occasions, later returning to Detective Stefanelli with what turned out to be field-tested controlled dangerous substances. The informant indicated that the contraband was procured from Moore and another individual inside the building. The informant advised the detective that the transactions were initially conducted at a first-floor apartment, and later at a third-floor apartment, in the building. Based upon this information, Detective Stefanelli applied for and obtained warrants to search the "first floor eastside apartment" and "third floor apartment #5" at the premises.
The search warrants were executed on May 20, 2008. Detective Stefanelli testified that he went to the third-floor apartment identified in the warrant, knocked on the door, and announced the police presence three times. Although no one answered, the detective could hear voices and sounds coming from inside the apartment. He thereupon forced the door open and entered the dwelling with several other police officers. Moore and the apartment's tenant -- co-defendant Raquita Daniels -- were inside. The ensuing search found a "357 Smith & Wesson Magnum" on the floor, more than 100 "clear plastic bags containing crack cocaine," and "[three] grams of crack cocaine [on] a plate."
Daniels testified for the defense. She indicated that when the police arrived at her apartment on May 20, she was inside her bedroom. She testified to the following:
The police never knocked. They just bust in. I told you, I heard the dog barking, [be]cause we have a dog. After the dog was barking, the police just bust in. They never knocked; they never did nothing, and they didn't have no search warrant.
Daniels denied that either she or Moore were involved in any illegal activities.
Moore also testified. He stated that when the police entered the apartment, he was sitting on the couch eating chicken parmesan and spaghetti. He testified that the police "burst through the door" without knocking. Furthermore, he said there was no gun on the floor, and he never "[sold] drugs out of [the] apartment."
Judge Joseph C. Cassini, III, denied Moore's motion to suppress, explaining his reasons in a two-page letter opinion. In resolving the factual dispute whether the police announced their presence and knocked before entering the apartment, Judge Cassini found "that the police did knock and announce their presence prior to entering the premises to execute the search warrant." Although the judge did not expressly make credibility findings, he noted the contradictory versions of the events of May 20, and found, "after hearing a male voice inside the apartment and receiving no response to the ...