NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-12-1022.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
Before Judges Grall and Accurso.
Following the denial of his motion to suppress evidence found during a search of his girlfriend's apartment conducted with her consent, defendant Don D. Brodie pled guilty to possession of a controlled dangerous substance (CDS) with intent to distribute in a school zone, N.J.S.A. 2C:35-7, a crime of the third degree. This was defendant's second conviction for possession of CDS with intent to distribute, and consequently he was subject to a mandatory extended term sentence with a period of parole ineligibility. N.J.S.A. 2C:35-12, :43-6f. In accordance with a plea agreement, he was sentenced to a six-year term of imprisonment, forty months to be served without possibility of parole.
Defendant appeals the denial of his motion to suppress. R. 3:5-7(d). He argues:
THE WARRANTLESS SEARCH OF DEFENDANT'S JACKET WAS UNSUPPORTED BY THE SCOPE OF THE CONSENT GIVEN BY HIS GIRLFRIEND; ADDITIONALLY, SHE WAS UNQUALIFIED TO GIVE CONSENT TO SEARCH A JACKET THAT OBVIOUSLY BELONGED TO DEFENDANT, NOT HER.
Defendant did not raise this issue at the suppression hearing, and the factual predicates for the claim about his girlfriend's lack of authority to consent were not developed. Two police officers testified on behalf of the State, and defendant's girlfriend, T.J., testified for the defense. Defense counsel argued that defendant's arrest was not supported by probable cause and that T.J.'s consent to the search was coerced, not voluntary. Defendant does not challenge the court's rejection of either of those arguments on appeal.
The testimony was as follows. In response to a tip from a confidential informant, who had provided one of the officers with reliable information on four prior occasions, two detectives of the Plainfield Police Department conducted a surveillance of an apartment building in Plainfield in August 2008. Based on the tip, they expected to see defendant, whom the informant alleged was distributing drugs from apartment 10 in that building, deliver drugs to a white male. One detective saw defendant in the vestibule of the apartment building with a Hispanic male. The unidentified male left the vestibule looking down at something he was holding while defendant stood there counting currency.
Because the building's staircase had windows, the detective who was outside and in the back of the building was able to see defendant ascending the steps to the third floor. The officers attempted to detain the Hispanic male before he left the area but did not succeed.
Later, the detectives saw a white male and defendant outside the apartment building. The detectives did not see them make eye contact, but both men were talking on their respective cell phones and ended their calls at about the same time. Thereafter, the white male was following defendant into the apartment building. Before any transaction could occur, the police attempted to detain both men, but they only succeeded in ...