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State of New Jersey v. David Ellis

December 14, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID ELLIS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-03-0406.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 11, 2012

Before Judges Fuentes, Graves and J. N. Harris.

In a nine-count indictment, defendant David Ellis was charged with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); second-degree possession heroin with intent to distribute within 500 feet of a public housing facility, park or building, N.J.S.A. 2C:35-7.1 (count three); second-degree possession of a handgun during the commission of a drug offense, N.J.S.A. 2C:39-4.1, (count four); fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count five); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count six); third-degree attempted hindering of apprehension, N.J.S.A. 2C:5-1(a)(3) and N.J.S.A. 2C:29-3(b)(1) (count seven); and second-degree possession of a handgun by a convicted person, N.J.S.A. 3C:39-7(b) (count eight). Defendant was not named in count nine of the indictment. Defendant was also charged with possession of drug paraphernalia, a disorderly persons offense, in violation of N.J.S.A. 2C:36-2. Counts three and eight were dismissed at the request of the State.

Defendant's trial began on December 1, 2006, and the jury rendered a verdict on December 13, 2006. Defendant was convicted of possession of heroin, count one; possession of heroin with intent to distribute, count two; and attempt to hinder apprehension, count seven. The jury found defendant not guilty on counts four, five, and six.

Prior to sentencing, the court granted the State's motion for a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f).

On December 18, 2009, the court merged count one into count two and sentenced defendant to a fifteen-year extended term with seven-and-one-half years of parole ineligibility. The court imposed a concurrent five-year term on count seven and a ten-day concurrent term for the disorderly persons offense. Appropriate statutory penalties and assessments were also imposed. We affirm.

Defendant moved to suppress evidence seized by the police pursuant to search warrants. The facts presented at defendant's suppression hearing and trial can be summarized as follows.*fn1 On September 19, 2004, a concerned citizen contacted the Paterson Police Department to report that defendant and two co-defendants, David Spencer and defendant's girlfriend, Alexis Timmons, were storing heroin in a first-floor apartment on Montgomery Street in Paterson, New Jersey, and were using rental vehicles to transport the heroin to street-level dealers throughout Paterson. Based on this information, Detectives William Palomino, Virginio Formentin, and Marvine Sykes conducted a surveillance of the Montgomery Street apartment during the week of September 19, 2004. The detectives were familiar with defendant and Spencer from "prior narcotic investigations."

While conducting the surveillance, the detectives observed a silver 2004 Pontiac SUV pull up and park in front of the apartment. Defendant and Spencer exited the silver SUV and entered the apartment, but they left about two minutes later. The men then drove in the SUV to an abandoned lot on Twelfth Avenue in Paterson where Spencer met an unidentified African-American man and handed him a plastic bag. The detectives observed the man place "the plastic bag into the fender of a pick-up truck with no license plate, as [defendant and Spencer] drove out of the area." Detectives Sykes and Formentin followed the SUV while Detective Palomino continued to observe the lot. According to Detective Palomino, he saw the African-American man "make what appeared to be numerous hand-to-hand drug transactions."

During the following week, the detectives observed defendant and Spencer arriving at the apartment in the same silver SUV, which was registered to Elrac, Inc., commonly known as Enterprise Rent-A-Car (Enterprise). Spencer then left the apartment and proceeded to the lot at Twelfth Avenue. At the lot, "Spencer began to look around while [an unidentified African-American man] entered the SUV and removed a medium sized plastic bag which he took and hid in the lot." Detective Palomino then observed a Hispanic female, known to him from prior narcotics investigations, engage in a suspected hand-to-hand drug transaction.

The detectives subsequently contacted a confidential informant who made a controlled buy from the unidentified African-American man at the Twelfth Avenue lot, and a field test conducted on the substance purchased by the informant tested positive for heroin. Based on their investigation, the detectives applied for four search warrants that were authorized by a municipal court judge on September 29, 2004, at 7:20 p.m. The search warrants were for defendant's person, Spencer's person, the silver SUV, and the first-floor apartment, including "any person found therein reasonably believed to be connected with the criminal activity."

That same evening, at about 8:30 p.m., the detectives observed defendant and Spencer arrive at the apartment in the SUV. When the detectives approached to execute the warrants, defendant and Spencer ran upstairs and entered an apartment on the second floor. As the detectives ran up the stairs, Detective Palomino observed Spencer drop a small bag on the steps that contained "numerous glassines" of suspected heroin. Meanwhile, the silver SUV left the apartment and was stopped by other detectives. The driver was identified as Gilbert Robinson.

The detectives forcibly entered the second-floor apartment and observed defendant, Spencer, and Timmons. Defendant was "in the bathroom attempting to flush glassines of suspected heroin." At the same time another detective stationed outside the apartment observed that "bricks of suspected heroin and [United States] currency were being thrown out of the second floor window." The detectives secured ...


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