On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-4-00610.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2012
Before Judges Waugh and St. John.
Defendant Gregory Loftland appeals his conviction, following a guilty plea, for first-degree possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1), and second-degree possession of a controlled dangerous substance with intent to distribute while on or within 500 feet of a public park, contrary to N.J.S.A. 2C:35-7.1(a). We affirm.
We discern the following facts and procedural history from the record on appeal.
At approximately 7:44 p.m. on November 4, 2009, Asbury Park Police Officer Stephen Love was dispatched to a building on Fifth Avenue in Asbury Park to investigate a 9-1-1 call regarding narcotic activity involving apartment 22. Love, who was in uniform, entered the building and immediately observed two males smoking what smelled like and appeared to be marijuana. Back-up officers arrived at the scene and the two men were arrested.
Love then proceeded upstairs to apartment 22. He knocked on the door and identified himself as a police officer. Someone responded, asking who it was. Love again identified himself as a police officer. Loftland opened the door wide enough to allow Love to see into the apartment, although Love was not actually inside the apartment at that time. Love smelled marijuana and observed a digital scale with a white powdery substance on it. Love also observed smoke in the apartment.
Love entered the apartment and advised Loftland and the others present that they were under arrest for possession of marijuana. While in the apartment, Love observed a burning marijuana cigarette and what he believed to be a bag of marijuana sitting on the couch. He called for back-up, did a security sweep of the apartment, and secured it.
Love transported Loftland to police headquarters. Once they arrived at
police headquarters, Police Officer Lorenzo Pettway was called in to
assist in the investigation. Loftland was given his Miranda*fn1
warnings and signed a Miranda card. Several hours later,
Loftland signed a consent to search form authorizing a search of his
Although the conversation leading up to and including Loftland's signing of the consent form was videotaped, the video could not be found for use as discovery following Loftland's indictment. Pettway believed that the recording was never copied onto a separate disk. He also testified that the police had just installed a new system and some of the "bugs" had not been worked out.
After the consent form was signed, Love and Pettway drove Loftland back to his apartment so he could be present during the search. In addition to the items observed by Love prior to the arrests, the police found a bag of crack cocaine above the refrigerator. Crack cocaine was also found in two pairs of sneakers in Loftland's closet.
Following the search, the officers and Loftland returned to police headquarters. While they were driving, Loftland made an unsolicited statement that the narcotics found in the apartment were his and did not belong to anyone else there. Pettway told him to "hold up" because they would do a formal statement at police headquarters.
At 2:22 a.m., Loftland signed another Miranda warning card and was questioned. Although the entire interrogation was video recorded, only fifteen minutes of it were subsequently available for discovery. When Loftland began asking legal questions, Pettway concluded that he would be ...