On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-10-1618.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges J. N. Harris and Koblitz.
After the trial court denied his motion to suppress evidence in connection with Ocean County Indictment No. 07-10-1618, defendant Ronald J. Talley pled guilty to the one count indictment charging him with third-degree possession of cocaine. N.J.S.A. 2C:35-10a(1). Pursuant to a plea agreement, he also pled guilty to three additional indictments. He pled guilty to count 3 of Ocean County Indictment No. 08-05-357, a fourth-degree charge of possessing a knife when he is a certain person not to have weapons. N.J.S.A. 2C:39-7a. The remaining three fourth-degree counts in that particular indictment were dismissed at sentencing. He also pled guilty to Ocean County Indictment No. 08-05-735, charging third-degree burglary, N.J.S.A. 2C:18-2, and Ocean County Indictment No. 09-02-291 as amended from first-degree robbery to theft from the person, N.J.S.A. 2C:15-1, N.J.S.A. 2C:20-3. Pursuant to the plea agreement, the court imposed an aggregate custodial sentence of six and one-half years in prison with two and one-half years of parole ineligibility. Defendant appeals from the judgment of conviction entered by the court on October 15, 2009. After reviewing the record in light of the contentions advanced on appeal, we affirm.
At the hearing on defendant's motion to suppress, the State produced two Seaside Heights Police Officers, Shawn Heckler and John Dudas, who testified to the following facts. They responded to a burglary report on June 18, 2007, at 5:19 a.m. When the officers arrived, a female neighbor identified herself as the caller. She told them she had seen a black man enter the home by climbing in a window after pushing a window-mounted air conditioner into the house. Officer Heckler observed an open window and saw the air conditioner lying inside on the floor. Both officers heard more than one voice from inside the house. Officer Heckler heard the voices of a man and a woman. Officer Dudas knocked and ordered the occupants to open the door.
Officer Heckler saw through the window that defendant was approaching the front door carrying a clear plastic baggy in his left hand. He recognized defendant, but was unaware that defendant had a legitimate connection to the home. He ordered defendant to show his hands to ensure he did not have a weapon. Defendant put his left hand behind his back and then behind the door. Officer Heckler drew his service weapon and again ordered defendant to show his hands. Defendant opened the door and showed the officer his empty hands.
The officers entered the home. Officer Dudas secured defendant while Officer Heckler looked behind the front door, where he found the baggy containing a rock-like substance he thought was cocaine. Officer Heckler then entered the kitchen, where he saw two individuals seated at a table with crack pipes in front of them. He arrested both individuals. Twenty to thirty minutes later, the homeowner arrived and indicated defendant had permission to enter her home.
Defendant testified that the police knew him from previous encounters at the home. He said he was well-known to the Seaside Heights Police Department because he and his identical twin brother "just are everywhere in Seaside." Defendant testified that he had nothing in his hands when he went to the door. He said the officers told him to open the door and show his hands and he responded, "For what?" He said after entering the house, the officers searched for three or four minutes before finding what was later determined to be .2 grams of crack cocaine. On cross-examination defendant admitted a lengthy criminal record of indictable convictions.
The judge found the police officers' testimony credible and discredited that of defendant.
Defendant raises the following issues on appeal:
POINT I: THE DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE PURPORTED "COMMUNITY AID" ENTRY AND "PLAIN VIEW" SEIZURE WERE PRETEXTS TO CONDUCT AN UNLAWFUL WARRANTLESS INVESTIGATORY SEARCH.
(A) THE ENTRY INTO THE HOME BY OFFICER HECKLER AND OFFICER DUDAS WAS NOT JUSTIFIED AS EMERGENCY AID.
(B) THE STATE FAILED TO PROVE THE FIRST AND SECOND PRONGS OF OFFICER HECKLER'S ...