On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-02-0315.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2012
Before Judges Yannotti and Hoffman.
Following denial of his motion to suppress a statement made to investigators, defendant Anthony D. O'Neal pled guilty to third degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3). Defendant preserved the Miranda*fn1 issue for appeal.
On November 7, 2011, the trial judge sentenced defendant, in accordance with the negotiated plea agreement, to three years probation, with ninety days incarceration as a special condition of that probation, and appropriate fines and penalties. Defendant appeals from his conviction and sentence.
Defendant asserts the following argument on appeal through counsel:
BECAUSE THE DEFENDANT'S STATEMENT WAS NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY MADE, THE TRIAL COURT'S REFUSAL TO GRANT HIS MOTION TO SUPPRESS THE STATEMENT DEPRIVED HIM OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION. U.S. CONST., AMENDS. V, XIV; N.J. CONST., ART. 1, PARS. 1, 10 Based on our review of the record and applicable law, we are not persuaded by defendant's argument and affirm.
At the suppression hearing, Investigator Donald Carruth of the Middlesex County Prosecutor's Office, testified that on December 9, 2010 he and approximately ten other officers executed a search warrant*fn2 at the one-bedroom apartment defendant shared with his girlfriend. They had moved into the apartment in September of 2010. Defendant was the target of the warrant.
The search began at 2:30 p.m. and lasted approximately one hour and twenty minutes. The search yielded heroin in a bedroom dresser, as well as cocaine in a kitchen drawer. Before the completion of the search, Investigator Carruth transported defendant to the sheriff's department for processing. Defendant's girlfriend remained at the apartment as she was detained during the search, but not placed under arrest.
Before taking a formal statement, Investigator Carruth said he "advised [defendant] that if nobody took responsibility for the heroin or anything that's found in the apartment, that everybody that's at the apartment could be arrested."
Defendant testified that he initially declined to give any statement. This changed, however, after he overheard one of the officers talking on the phone stating that defendant was not cooperating and "saying something about incarcerating my girlfriend." At that point, defendant called out to the officer, "What's going on?" Defendant ...