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State v. Simon

Superior Court of New Jersey, Appellate Division

July 15, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
KEIR C. SIMON, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 30, 2013

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2010-064.

L'Abbate, Baklan, Colavita & Contini, L.L.P., attorneys for appellant (Douglas R. Halstrom, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pognay, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Before Judges Sapp-Peterson and Haas.

PER CURIAM

Following a trial de novo on the record created in the Newark Municipal Court, the Law Division judge found defendant guilty of possession of narcotics paraphernalia, N.J.S.A. 2C:36-2. The court re-imposed the sixty-day suspended sentence, fines, court costs and assessment fees originally imposed by the municipal court judge. On appeal, defendant contends that without evidence of the field test performed by the police officers, the specific steps involved with such field tests and the results of the field tests, there was no proper evidence submitted by the prosecution to support a finding by the court that defendant committed the offense. We disagree and affirm.

Two witnesses testified at the municipal trial: Officer Ronald Bernard, a fifteen-year veteran of the police force, and Officer Horatio Lorenzo, a sixteen-year veteran of the police force. Both officers were assigned to the Newark Police Department's Fourth Precinct Narcotics Enforcement Team where they conducted surveillance operations.

On April 22, 2010, they conducted surveillance operations from an unmarked police vehicle in the vicinity of a building where police had received complaints of narcotics activities. During the course of the surveillance, Officer Bernard observed a taxicab pull up and stop in front of the building under surveillance. The driver of the vehicle, later identified as defendant, conversed with an unidentified male who approached the driver. The driver exchanged money with the male, who then ran across the street into an alleyway, retrieved an item, returned to the vehicle and handed the item to the driver, who then drove away.

Believing that a narcotics transaction had just occurred, Officer Bernard radioed his observations to Officer Lorenzo, who conducted a motor vehicle stop of the taxi. As he approached the vehicle, Officer Lorenzo observed the driver extend his hand out of the driver's side window. The plastic bag fell near the officer's feet. Not wanting the driver to realize he had observed the plastic bag being dropped, Officer Lorenzo secured the item by standing over it. Defendant was arrested and the plastic bag retrieved.

Both officers testified that based upon their years of experience and training as narcotics officers, they believed the plastic bag contained marijuana based upon its odor, and one officer also considered the texture of the bag's contents. Officer Lorenzo field tested the substance, which tested positive for marijuana. He did not save the field test results, explaining that it was not common practice to do so. There was also no certified lab report confirming the contents of the plastic bag. Nonetheless, the municipal judge credited the testimony of the officers and found defendant guilty of the charge.

Upon her de novo review of the record and according deference to the municipal judge's credibility assessments, the Law Division judge was satisfied beyond a reasonable doubt that the plastic bag contained marijuana and that the bag was being used to store the marijuana. As such, the judge found defendant guilty of the charge. In reaching her decision, the judge considered the totality of the circumstances, including

an observed hand[-]to[-]hand transaction, the driver being observed throwing the bag out of the car, two separate polic[e] officers with experience in this area confirming the appearance and smell of the substance inside the bag appeared to be ...

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