NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-03-0788.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Parrillo and Harris.
Following denial of his motion to suppress, defendant Karriem Sanchez was tried by a jury and convicted of second-degree conspiracy to possess with intent to distribute a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:5-2 (count one); third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count two); third-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count three); third-degree possession with intent to distribute heroin within 1, 000 feet of school property, N.J.S.A. 2C:35-7 (count four); and second-degree possession with intent to distribute heroin while on or within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1 (count five). The court merged counts one through four with count five and sentenced defendant, pursuant to N.J.S.A. 2C:43-6f to a term of sixteen years with an eight-year period of parole ineligibility. Defendant appeals. We affirm the judgment of conviction save for the extended term feature of defendant's sentence, which we vacate and remand the matter for resentencing.
According to the State's proofs at the suppression hearing, on September 17, 2009, at around 11:00 a.m., Detective Lydell James set up a surveillance in the vicinity of a four- or five-story multi-family apartment building on Brunswick Street in Newark based on information from a reliable informant about drug activity occurring in apartment 3A. Although James travelled there alone in an unmarked police vehicle and in plain clothes, a backup unit, consisting of Lieutenant William Brady, and Detectives Michael Chirico and Peter Chirico, was stationed north of James' location and in communication contact with him. From his vantage point, James observed numerous people walk in and out of the apartment building in a hurried fashion over a period of forty-five minutes to an hour. He became suspicious that something was occurring inside the building. At some point, the backup officers stopped one of the individuals, Jose Vega, whom James observed leaving the building. Vega told the officers that he had just purchased heroin from two individuals selling drugs on the third floor of the building, and described one of them, who was known as Karriem.
Lieutenant Brady, who was the supervising officer, Detective James, and Detective Michael Chirico then entered the building surreptiously. Detective Peter Chirico meanwhile stationed himself outside to prevent anyone from escaping. The door to the apartment building was an open, unsecured and unlocked metal gate.
As the officers reached the third floor landing with guns drawn, James saw three individuals in the hallway, one of whom was sitting on a window ledge and the other two were nearby, standing next to each other. James recognized the man sitting on the ledge as defendant, whom he had previously known and whom Vega had earlier described. Defendant was counting money and also holding a bag. There was also cash resting next to him on the ledge. One of the men standing, Charles Dunlap, was holding cash and the other man, Michael Daniels, was holding a glassine envelope that James believed, based on his seventeen years of experience as a police officer, contained heroin. James was under the impression that he had just interrupted a drug transaction.
As a result, all three men were eventually detained, handcuffed and arrested. Defendant was searched, leading to the discovery on his person of forty-nine glassine envelopes, each containing heroin. While these arrests were occurring, another man, Rodriguez Medina, entered the landing and, incredibly, attempted to purchase heroin from the three arrestees.
Meanwhile, Detective Peter Chirico, who had remained outside the building, observed a female throwing bricks of heroin out a third floor window. He secured the heroin, entered the building, and along with the other officers, banged on the door of apartment 3A until a woman, Lateisha Lawrence, answered. Detective Chirico identified her as the female who threw the heroin out the window. She was then arrested. The only other person in the apartment, Ebony Lasangne, was record checked and later arrested on an open warrant from Irvington.
At the close of proofs, the judge denied the suppression motion, crediting James' testimony as "credible and reliable in all aspects, " and "candid, consistent and unwavering, both on direct and cross-examination." The judge found that the unlocked and unsecured front door allowed free access by the public into the building and its common areas and therefore the officers did not need either probable cause or a search warrant to enter the building and walk its hallways. The judge also found sufficient probable cause to arrest defendant and search his person incident to that arrest:
Detective [James] did not see Sanchez engage in a transaction or solicit anyone for narcotics. There was no observed interaction between Dunlap, Daniels and Sanchez.
Nevertheless, I do believe and find that it was reasonable for police officers to conclude that Sanchez, who was within close proximity of Dunlap and Daniels and who was counting money in the open in a building known for drug and general criminal activity, had recently been involved --believe that Sanchez -- excuse me -- had recently been involved in the transaction between Dunlap and Daniels. It was not unreasonable to believe that Sanchez was holding money made by Daniels through the sales. Based on the testimony of the officer, I do believe that the State has proven the lawfulness of Sanchez's arrest by the preponderance of the evidence.
At trial, Detective James testified consistent with his motion testimony. In addition, he stated that the glassine envelope taken from Daniels, as well as the forty-nine glassine envelopes seized from defendant and the two hundred and fifty glassine envelopes thrown and confiscated from apartment 3A all were marked with a teal green stamp bearing the word "Vengeance." According to James, a stamp is used to identify the brand of heroin.
On appeal, defendant raises the following issues:
I. THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS SEARCH AND SEIZURE CONDUCTED INSIDE A BUILDING WHERE TRESPASSING IS PROHIBITED.
A. THE POLICE NEEDED A WARRANT BECAUSE THEY MADE THEIR OBSERVATIONS FROM A VANTAGE POINT INSIDE A BUILDING IN AN AREA WHERE THE GENERAL PUBLIC WAS NOT ALLOWED ACCESS.
B. THE FRISK TO SEARCH FOR DRUGS WAS UNLAWFUL.
II. THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF HEARSAY EVIDENCE FROM ABSENTEE WITNESSES IMPLICATING THE DEFENDANT IN THE COMMISSION OF THE CRIMES. (Partially raised below).
III.THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OPINION EVIDENCE. (Partially raised below).
A. THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED.
B. THE CURATIVE INSTRUCTION WAS ERRONEOUS, CONFUSING, AND PREJUDICIAL. (Not raised below).
IV. THE DEFENDANT'S SENTENCE IS EXCESSIVE. (Partially raised below).
A. THE TRIAL COURT ERRONEOUSLY APPLIED THE MANDATORY EXTENDED TERM PROVISION THAT EXPRESSLY APPLIES TO SCHOOL ZONE OFFENSES TO THE CONVICTION FOR A PUBLIC HOUSING/BUILDING/PARK OFFENSE. (Not raised below).
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
C. THE MATTER MUST BE REMANDED TO CORRECT THE WRITTEN RECORD. (Not raised below).
In addition, defendant raises the following issues pro se:
I. THE PROSECUTOR'S REPEATED CHARGE TO THE JURY THAT THEY WERE "OBLIGATED TO THE CITY, COMMUNITY, AND RESIDENTS OF THE BUILDING, " TO FIND DEFENDANT GUILTY, AMOUNTED TO PROSECUTORIAL MISCONDUCT WHICH VIOLATED DUE PROCESS AND ...