NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-08-1565.
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 briefs).
Appellant filed a pro se supplemental brief.
Before Judges Alvarez, Ostrer and Carroll.
Tried by a jury, defendant Craig S. Pitt was convicted of eleven counts of an indictment charging him with drug offenses. He was sentenced on March 26, 2012 to an aggregate of twelve years imprisonment, subject to four years of parole ineligibility. He now appeals. We affirm.
Defendant was found guilty of the following: third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of one-half ounce or more but less than five ounces of cocaine, N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession with intent to distribute cocaine within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three); second-degree possession with intent to distribute cocaine within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1 (count four); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count five); third-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count six); third-degree possession with intent to distribute heroin within 1000 feet of a school, N.J.S.A. 2C:35-7 (count seven); second-degree possession with intent to distribute heroin within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1 (count eight); third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count nine); third- degree distributing or dispensing heroin within 1000 feet of a school, N.J.S.A. 2C:35-7 (count ten); and second-degree distribution of heroin within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1 (count eleven). At sentencing, after granting the State's motion to impose an extended term because defendant had been previously convicted of drug distribution offenses, N.J.S.A. 2C:43-6(f), the judge appropriately merged counts one and two into count four; merged counts five and six into count seven; and merged count nine into count ten. He then imposed twelve years imprisonment subject to four years of parole ineligibility on counts four and eight, and five years subject to three years of parole ineligibility on counts seven, ten, and eleven. All sentences were to run concurrent.
At the motion to suppress hearing conducted prior to trial, the State presented one witness, Narcotic Enforcement Team Officer Dennie Young, an eleven-year veteran of the Irvington Police Department. On cross examination, defendant's attorney elicited the fact that Young had been recently suspended for allegedly employing excessive force during the course of an arrest. Young testified that, although "the case was dismissed, " he was found "departmentally" to have engaged in conduct that warranted suspension.
Young explained the circumstances leading to defendant's arrest. At approximately 7:00 p.m. on February 16, 2010, he set up surveillance at a particular intersection. He decided to monitor that specific corner because of recent complaints of "open-air drug trafficking activity in that area." At trial, Young explained his presence at the intersection at issue because usually "we receive independent information in regards to drug trafficking activity in certain areas. And when it came to my attention, I relayed the information that I obtained to [my supervisor] and he gave me the okay to look into it further."
Shortly after arrival, Young observed a man talking on a cell phone in front of #53 on the block, a two-level one-family home. He recognized defendant, whom he had arrested on a previous occasion. An unknown woman approached defendant and the two spoke briefly. Defendant went into the house, returned after a few seconds, and engaged in a hand-to-hand exchange with the woman. At trial, although Young on direct said he could not see the object that defendant handed over, on cross examination he said that he believed that the woman handed defendant some form of paper currency. During the suppression hearing, but not the trial, Young said he concluded he was observing drug activity.
After the woman left the area, a gray Infiniti G35 stopped nearby. Defendant waved the vehicle over to where he was standing in front of #51, adjacent to #53. Young saw defendant take something out of his jacket pocket and exchange something with the driver, who then left. At trial he said only that he saw defendant hand something to the occupant. He was asked on cross examination if he believed that he had witnessed "something to do with illegal activity, " and he responded "suspicious, yes."
After the Infiniti had driven away, a Ford Windstar minivan pulled up in front of #51, and defendant briefly spoke to the driver. He then walked back towards #53 and went inside the house, at which point Young called for backup. Officers responded within two or three minutes.
As defendant came out of the building and approached the Windstar, the officers converged on the vehicle. Defendant was observed, prior to noticing the plain-clothed officers, walking to the passenger side. Once defendant saw the officers approaching, he threw an item inside the vehicle and grabbed the paper currency the passenger handed him. Defendant turned to walk away and was immediately arrested. The officers found a deck of heroin on the passenger's lap, which Young believed to have been the item that defendant threw into the car. Young explained that he called in the arrest at 9:38 p.m.
Once the occupants of the Windstar and defendant were secured in a police vehicle, Young rang the bell at #53. Defendant's father opened the door, and Young explained that defendant had been arrested and was seated in a police vehicle. Defendant's mother also came to the door.
The parents told Young that defendant lived at #51 with his girlfriend, although he spent time at their house, #53. Young informed defendant's parents that he had been seen going in and out of #53, and that it was possible that there were drugs in their home. Young asked for permission to search the house and presented defendant's parents with a consent to search form. Young testified that he advised them that they had the right to refuse, as well as the right to stop the search at any time. He also informed them that they could accompany him during the search, which they did.
Young said that defendant's father commented that he had noticed defendant constantly going in and out of the house, up and down the stairs, and that he had considered the behavior to be suspicious. Each parent signed a separate consent to search form. Their signatures were witnessed by another officer. The consents to search were signed at 9:50 p.m.
The officers were directed by defendant's parents to a room defendant frequently used, and as they entered, they saw two shoe boxes placed on a stool. One contained 138 decks of heroin, sixty-one vials of crack cocaine, and a sandwich bag containing a twenty-gram rock of crack cocaine. Inside the second shoe box they found $323 in cash. The decks of heroin were stamped "Black Jack, " "Purple City, " and "Energizer." The deck of heroin recovered from the passenger in the Windstar was also stamped "Black Jack."
On cross examination during the motion hearing, defense counsel pursued a line of questioning challenging both Young's timeline and his claim that defendant's parents signed the consent forms voluntarily. He repeatedly pressed Young on the fact that he commenced monitoring the area at 7:00 p.m., claimed that the three transactions occurred within minutes of each other, yet the consent to search was not signed until 9:50 p.m. This timeline, counsel later argued, made no sense in light of Young's assertion that the search took less than thirty minutes.
Young also testified that he located a safe in the home, and claimed that a woman other than defendant's mother opened it for the officers. This woman was not mentioned in his police report. Nothing was found in the safe, but the woman did not execute a consent form for the search of the safe, which she claimed was hers. Young stated that he did not see this person until he and his colleagues were leaving, and that he did not know if she had been in the home during the entire search.
At the suppression hearing, defendant's father's testimony differed from Young's. He said that defendant was in the house when the police came to the door, and that defendant came downstairs in response to their knock. Once defendant opened the door, Young arrested and handcuffed him, and took him out to a police car. The father testified that Young just walked through the house, uninvited, into defendant's bedroom and the TV room upstairs, without asking for permission or even discussing this intrusion with him.
When the officer entered the TV room, he saw a safe that defendant's father could not open as he could not remember the combination to the lock. It was then, according to defendant's father, that the officer entered the room he described as defendant's bedroom, rummaged through defendant's dresser drawers, and searched a closet. While Young searched, defendant's father stood in the hallway, and defendant's mother remained in her bedroom. Eventually, he said, his wife opened the safe, which contained only papers and some loose change. On his way out, Young took a shoebox from defendant's bedroom and showed the father the contents, including several bags and money.
According to defendant's father, after Young first left the home, he returned with a consent to search form, demanding that he sign it. He claimed that Young told him that he would not be "locked up" so long as he did so. Young did not say anything else, only ordering him to sign the document. At the time, defendant's father claimed defendant's mother was in the living room. Defendant's father also claimed that Young was alone, and that the only reason that he signed the consent was in order to avoid arrest. He stated that Young did not inform him that he did not have to admit him into the home, or that the search could be stopped at any time.
Defendant's mother testified that she was probably asleep in an upstairs bedroom when her husband summoned her. As she left her bedroom, she saw two officers going through a drawer in defendant's bedroom. One officer showed her "some vials, " which they were taking out of a drawer. She said that she was the one who opened the safe, as the officers told her arrangements would otherwise have to be made for someone to break or remove the safe. As a result, defendant's mother went back into her bedroom, found the combination, and opened the safe. Inside were papers, including a birth certificate, and some loose change. Nothing was taken from it.
Defendant's mother said that the officers then went outside and returned with the consent to search form that they wanted her to sign. She said that, based on what she read on the form, she knew that she had the right to refuse; however, she alleged that the officer told her that if she did not sign the consent to search form the "State Police could come in and just ransack the house." Like her husband, defendant's mother claimed that the police never asked for permission to enter the home or search it, and did not advise her that she could stop the search at any time. When the judge asked why she signed the form if she understood that she had the right to refuse, she responded it was to avoid the state police ransacking the home if she did not sign.
In denying the motion to suppress drugs and money seized during the search of the residence, the trial court noted that defendant's parents' testimony differed, not only from Young's narrative, but from each other's. For example, although defendant's father claimed he signed the consent because he had been threatened with arrest, defendant's mother claimed she signed the consent because she had been threatened with the house being ransacked.
The court also observed that it was unlikely that the police would have permitted the occupants of the home to "wander about once they were in the house and that the police would allow [defendant's mother] to open up the safe . . . without the police being present." He also found it consequential that defendant's mother said that she understood the form, and that she believed her husband did as well, in contrast to the father's testimony.
The judge pointed to another fact that he considered significant, namely, that the officers would not have known which room to search unless they were directed there by someone. The officers searched only the TV room and defendant's room, and not the room occupied by defendant's mother or the downstairs.
Immediately prior to the commencement of the trial, the trial judge, not the same judge who presided over the motion to suppress, conducted a hearing regarding a missing police log, the destruction of a relevant dispatch tape, and Young's destruction of his notes after he prepared his police report. Defense counsel requested an instruction that would permit the jury to infer that the notes and tape would contradict the officer's testimony. As for the dispatch tape, the defense attorney said that it was destroyed because the police department apparently routinely destroyed such tapes after six months. Defense counsel also claimed the police department failed to preserve the log book in which each arrest was documented. The parties eventually stipulated that the State could not produce the arrest log.
The judge asked defense counsel to describe the information that would have been contained in the notes that would have been helpful. Defense counsel responded that the notes and dispatch tape were important for impeachment because they might contradict the testimony that Young had given at the suppression hearing. Counsel agreed to wait for the court's decision with regard to the requested instruction until after the conclusion of at least some of the testimony, and the judge agreed to permit defense counsel to question Young about the notes he destroyed. The assistant prosecutor had argued that while State v. W.B., 205 N.J. 588 (2011), required police officers to preserve their notes, the decision was not the governing law at the time of the arrest.
At trial, Young testified that he took notes while conducting the surveillance; however, he only used them to prepare his report, and he discarded them after it was prepared. Young said he knew that his call to dispatch and request for backup was recorded, but did not know if the recordings were preserved. Neither was he aware of any log book maintained when arrestees were processed at the police station. One of the other arresting officers who testified at trial, William Gatling, Jr., guessed that dispatch recordings were usually kept for three to six months, if that, and that he was not aware of any separate log book. At the conclusion of the testimonial portion of the trial, the judge decided that, because defendant had not established willful destruction of evidence, no adverse inference charge would be read to the jury. However, counsel would be permitted to comment on the unavailability of these documents in closing.
Young also acknowledged at trial that the contents of both shoe boxes had been consolidated into one box. A tow sheet, regarding the impoundment of the Windstar, indicated that the vehicle was not towed until 10:55 p.m. Young stated that the tow "was set in motion prior to the consent to search."
Gatling, who had acted as a backup officer, said that when he went to the passenger side of the Windstar, defendant was standing at the door, about to take money from the passenger or having just taken money from the passenger. When Gatling announced his presence, defendant immediately tossed an item into the van which landed on the passenger's lap area, turned, and began to walk away. Gatling then saw the passenger looking for the item on his lap, later discovered to be a deck of heroin stamped "Black Jack."
Gatling testified that he stayed outside, at the bottom of the stairs, when the other officers, Young and Sergeant Mack Trevaris, knocked on the door. He saw defendant's father answer the knock, and defendant's mother come to the door. He witnessed defendant's parents sign the consent to search forms. While the home was being searched, Gatling remained outside to watch defendant while another officer transported the occupants of the Windstar to the station. After the home was searched, he was ordered to do the necessary paperwork for the tow of the Windstar. By that point, Young had left, and, in any event, Young was not involved in the removal of the vehicle.
When Gatling patted defendant down in the station, he found the money that he had seen him take from the Windstar's passenger. Gatling could not recall the precise amount of cash on defendant; he ...