On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-10-01815.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically November 16, 2012 -
Before Judges Yannotti and Hoffman.
Following the denial of his motion to suppress, defendant Faarah Ballon pled guilty to third-degree possession of cocaine with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5(a)(1). In accordance with his plea agreement, defendant was sentenced to a five-year state prison term with a two-year period of parole ineligibility. Defendant now appeals, challenging the April 28, 2011 order denying his suppression motion and also the length and conditions of his sentence. We affirm.
On March 12, 2010, Officer Terrence Doran of the Jersey City Police Department (JCPD) was on narcotics detail with Officer Chawanik and Sergeant McNally, all dressed in plain clothes. The JCPD had received multiple complaints of "heavy pedestrian traffic at all hours night and day" at an address on Grand Street (the Grand Street building), consistent with possible drug activity.
Officer Tony Goodman, a narcotics detective, resides in the area. He provided information to the officers on narcotics detail regarding suspected drug activity at the Grand Street building. Specifically, he informed them that he had seen a dark blue Toyota Camry on three different occasions pull up to the corner on Grand Street. On each occasion, an approximately six-foot three-inch black male, in his mid-thirties, with a thin build, bald head, and a thick beard, would exit the car and enter the Grand Street building. The man would then exit the building shortly thereafter, counting currency.
Officers Doran, Chawanik, and McNally undertook surveillance of the area. At approximately 8:35 p.m., they observed a dark-colored Toyota Camry approach the area. A male matching the description provided by Officer Goodman then exited the car and walked towards the Grand Street building.
Officers Doran, Chawanik, and McNally then exited their unmarked vehicle, with their badges on display, and approached the man. As they approached, the man, later identified as defendant, placed his hand into his right jacket pocket. According to Officer Doran, he thought when defendant reached into his jacket pocket, "he might be going for a weapon." The officers ordered defendant to remove his hand from his pocket, but he did not comply. Officer Doran grabbed defendant's left arm and Officer Chawanik grabbed his right arm.
Officer Doran then began to pat defendant down for weapons and felt a bulge in his left jacket pocket, which Officer Doran said "could have been anything" and "really alarmed" him and the other officers. Officer Doran searched defendant's pocket and the bulge turned out to be fifty-four vials of cocaine and $44 in currency. Defendant was arrested.
On October 26, 2010, a Hudson County Grand Jury indicted defendant for third-degree possession of a controlled dangerous substance (CDS), namely cocaine, contrary to N.J.S.A. 2C:35- 10(a)(1) (count one); third-degree possession of cocaine with the intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of cocaine with the intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-5(a)(1) (count three); and second-degree possession of cocaine with the intent to distribute within 500 feet of a public housing faciliy, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7.1 (count four).
Subsequently, defendant filed a motion to suppress, arguing the search of his jacket pocket was unconstitutional. On April 25, 2011, the trial judge heard testimony from Officer Doran in regards to the motion. On April 28, 2011, the judge heard oral argument from defendant and the State. Following argument, the judge issued an oral opinion denying defendant's motion. He found the search to be constitutional, consistent with Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968), and State v. Roach, 172 N.J. 19 (2002).
On May 9, 2011, defendant entered into a negotiated plea agreement by which he pled guilty to count three of the indictment in exchange for the State dismissing the remaining counts and recommending a five-year state prison term with a two-year period of parole ineligibility.
On September 9, 2011, defendant was sentenced in accordance with the plea agreement. On February 29, 2012, ...