On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 09-03-0651, 08-12-3016, 09-01-0226, and 09-04-1056.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Koblitz.
Defendant Jeffrey Simpson appeals from four October 26, 2010 judgments of conviction. After losing his motion to suppress the controlled dangerous substances (CDS) that formed the basis of Atlantic County Indictment No. 09-03-0651, defendant entered a guilty plea to counts three and four of that indictment, charging third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and second-degree possession of heroin with the intent to distribute within 500 feet of a public zone, N.J.S.A. 2C:35-7.1. He also pled guilty to the one-count Atlantic County Indictment No. 08-12-3016, charging third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), count one of Atlantic County Indictment No. 09-04-1056, charging third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), and count two of Atlantic County Indictment No.09-01-0226, charging third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). The remaining counts of the indictments were dismissed. Defendant was sentenced to an aggregate term of eight years imprisonment with three years of parole ineligibility. Defendant maintains on appeal that the suppression motion should have been granted and that his sentence is excessive. In a supplemental brief, he also asserts that he was the victim of racially-motivated selective prosecution, the complaint and indictment were fatally defective, and his guilty plea was coerced. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Atlantic City Police Detectives William Warner and James Barrett testified at the motion to suppress. They testified that they were conducting surveillance at the Stanley Holmes Villages, a public housing project located in a violent, high-crime, high-drug area of Atlantic City where multiple shootings and homicides have taken place. They observed a white male pull up onto Baltic Avenue. The man picked up a cell phone and on two occasions he changed his parking spot a few feet, never leaving the car. The detectives did not know the driver, but thought he might be making a drug purchase. Warner testified that drug sellers would sometimes enter a car and drive off to complete a drug transaction outside of police view.
After twenty-five minutes, defendant, who is African-American, approached the driver, spoke to him and entered the car. The two men drove away, followed by the detectives, going ten blocks. The car entered the Carver Hall Apartments, another high-crime, high-drug location. Both men then left the car and walked out of sight of the police. The driver then returned to their view and approached and handed money to another man. Police observed the man hand an object to the driver. The detectives believed this was a hand-to-hand drug transaction. The driver returned to his car, where defendant was already waiting. The car then returned to the area where it had been parked in front of the Stanley Holmes Villages.
The detectives activated their flashing lights and pulled up behind the car. Detective Warner approached the driver, co-defendant Anthony Guarrera, and observed a bundle of heroin in the exposed ashtray between the two front seats. Both occupants were then asked to exit the vehicle. Guarrera admitted the heroin was his and the detectives placed him under arrest. Defendant stepped out of the car, making a motion towards his right pants pocket as if pushing an object down deeper into the pocket. As a safety precaution, Barrett asked defendant to place his hands on his head and patted him down, finding two zip-lock bags containing rock cocaine in the right front pocket and thirty-nine folds of heroin in another pocket.
Defense counsel raises the following points on appeal:
POINT I THE TRIAL COURT'S FINDINGS THAT THE DETECTIVES HAD A REASONABLE BASIS TO STOP GUARRERA'S CAR AND THAT THE DISCOVERY OF HEROIN WAS WITHIN THE "PLAIN VIEW" DOCTRINE, WERE CLEARLY MISTAKEN AND SO WIDE OF THE MARK THAT THE INTERESTS OF JUSTICE REQUIRE APPELLATE INTERVENTION. THE ORDER DENYING SUPPRESSION MUST BE REVERSED.
POINT II EVEN IF IT WAS CONSTITUTIONALLY PERMISSIBLE TO STOP GUARRERA'S CAR, WITHOUT ANY EVIDENCE THAT SIMPSON SHARED POSSESSION OF THE HEROIN OBSERVED IN THE ASHTRAY, THE DETECTIVES LACKED PROBABLE CAUSE TO ARREST SIMPSON OR TO SEARCH HIM INCIDENT TO THAT ARREST. THEREFORE, ANY EVIDENCE FOUND IN THE CAR AND ON SIMPSON'S PERSON MUST BE SUPPRESSED.
POINT III EVEN IF IT WAS CONSTITUTIONALLY PERMISSIBLE FOR THE DETECTIVES TO STOP GUARRERA'S CAR, LACKING ANY INDICATION THAT SIMPSON WAS ARMED, THE DETECTIVES LACKED ANY LAWFUL BASIS TO FRISK OR TO SEARCH SIMPSON. THEREFORE, ANY EVIDENCE FOUND ON SIMPSON'S PERSON MUST BE SUPPRESSED.
POINT IV THE CONCURRENT TERMS IMPOSED ON INDICTMENT 09-03-0651 ARE EXCESSIVE.
In his pro se supplemental brief, defendant raises the following ...