NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 10-02-0536.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/Acting Essex County Prosecutor, on the brief).
Before Judges Nugent and Haas.
Defendant, Leonard Bristol, appeals from the judgment that convicted him of possession of a controlled dangerous substance (CDS), marijuana, and possession with intent to distribute a CDS, marijuana. He contends the State's trial evidence was insufficient to prove that he possessed the marijuana seized by police who executed a search warrant at a house where he and others were present. He also contends the State's evidence was insufficient to prove that he fortified a structure maintained for the manufacture, distribution, dispensing, or possession of a CDS, an offense for which the jury was unable to reach a verdict, and which was dismissed when defendant was sentenced. Having considered defendant's arguments in view of the record and controlling law, we affirm.
The State developed the following proofs at trial. On December 22, 2009, at approximately five o'clock in the afternoon, members of the Orange police department's Special Response Team (SRT) and Narcotics Unit executed a search warrant at a two-story house on Reock Street in Orange. Upon their arrival, they saw co-defendant Chris Solomon running from the rear of the property. Solomon disregarded Detective Gregory Johnson's command to stop, so Detective Johnson and Detective Ryan Greenfield chased and apprehended him.
Meanwhile, the other officers divided into two teams and approached the east side and rear door entrances to the house. Two officers, Detective Michael Tingoli and Sergeant Ham, attempted to enter through the rear door after knocking and announcing their presence. Sergeant Ham, "a big guy, " was unable to "breach the door" after "hit[ting] it multiple times" with a steel ram weighing forty to fifty pounds. Later, after entering the house, Detective Tingoli saw that the interior of the rear door was secured by a two-by-four screwed to the floor, another two-by-four screwed to the center of the door, a third two-by-four "bracing the door closed, " and a deadbolt lock above the door handle. Unable to breach the rear door upon their arrival, Detective Tingoli and Sergeant Ham went to the other entrance.
SRT members forcibly entered the home after no one responded when they announced themselves. Upon entering, the officers used flash bang devices to secure the residence and ensure that none of the occupants was armed. Detective Tingoli, accompanied by Sergeant Ham, proceeded to the attic where he saw defendant "tossing items out . . . the window." Detective Tingoli "ordered [defendant] to the ground" and defendant refused, so "[h]e was then taken to the . . . floor." During the scuffle, defendant dropped a clear plastic bag containing a green vegetative substance that smelled like marijuana, and twenty-five dollars. The officers arrested defendant. Detective Tingoli did not recall encountering anyone other than defendant on either the second floor or in the attic.
Detective Walter Enbert and Detective Lieutenant Dunn were assigned to secure the door on the west side of the house.Specifically, Lieutenant Dunn was assigned to watch the door and Detective Enbert was assigned to provide cover for Lieutenant Dunn. Detective Enbert used a flashlight to illuminate windows above the door. While doing so, he saw defendant toss two items out an attic window. Detective Enbert retrieved and identified the items as "bags containing [a] green vegetation, marijuana." One bag contained two other plastic bags. The interior plastic bags contained eight grams of marijuana and six grams of marijuana. Another clear plastic bag contained approximately 2.4 ounces of marijuana and twenty-three Ziploc baggies. Each Ziploc baggie contained marijuana.
Other officers seized other drugs from other parts of the house. Sergeant Michael Berserchio walked into a first-floor bedroom with a bed, dresser, and chair, and saw a camouflage case on the floor near a dresser. The Sergeant opened the case and seized from it a bag containing one pound, one ounce of marijuana; four plastic bags each containing approximately four ounces of marijuana; a grey digital scale; "[n]umerous empty Ziploc baggies commonly used for packaging marijuana"; and a box of bullets. Sergeant Berserchio also found cash in a large bag on a shelf in the closet. The cash included various denominations of currency ranging from one to one-hundred dollar bills and totaled $1, 306. Hanging in the closet were male clothes, jeans, and shirts. Sergeant Berserchio saw no one on the first floor other than police officers. Berserchio found a wallet on the dresser. The wallet contained a Wachovia card and a Visa card belonging to defendant, and a "Caesar's Atlantic City Voucher, bearing [defendant's] name."
Detective Robert Stephaneli seized marijuana while searching the second floor of the house. Although the second floor was vacant, there were some paint brushes, bladders, and tools on the floor. Underneath a sink on the second floor was "a white bag containing suspect[ed] marijuana." The bag contained three other bags which contained, respectively, 15.4 ...