STATE OF NEW JERSEY v. TOYA WARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1212-04T41212-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TOYA WARD,

Defendant-Appellant.

________________________________

 

Submitted January 23, 2006 - Decided May 15, 2006

Before Judges Parrillo and Gilroy.

On appeal from the New Jersey Superior Court, Law Division, Essex County, Indictment No. 02-10-3601.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark S. Carter, Designated Counsel, on the brief).

Nancy Kaplen, Acting Attorney General, attorney for respondent (Robyn M. Mitchell, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On October 4, 2002, defendant, Toya Ward, was indicted for second-degree conspiracy to possess a controlled dangerous substance and to possess a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:5-2 (Count One); two counts of third-degree possession of a controlled dangerous substance (cocaine and heroin), contrary to N.J.S.A. 2C:35-10a(1) (Counts Two and Six, respectively); two counts of third-degree possession of a controlled dangerous substance (cocaine and heroin) with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), b(3) (Counts Three and Seven, respectively); two counts of third-degree possession of a controlled dangerous substance (cocaine and heroin) with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7 (Counts Four and Eight, respectively); and two counts of second-degree possession of a controlled dangerous substance (cocaine and heroin) with intent to distribute within 500 feet of a public housing facility, contrary to N.J.S.A. 2C:35-7.1 (Counts Five and Nine, respectively).

After denial of her motion to suppress, defendant was tried to a jury and found guilty on all counts. On February 24, 2004, the trial judge denied defendant's motion for a new trial, and sentenced the defendant. Convictions on Counts One through Eight were merged into the conviction on Count Nine, except that the three-year period of parole ineligibility on Count Eight survived merger. Defendant was sentenced on Count Nine for her conviction of possessing a controlled dangerous substance (heroin) with intent to distribute within 500 feet of a public housing facility to a term of imprisonment of five years with a three-year period of parole ineligibility. Defendant's driving privileges were suspended for six months, and all appropriate assessments and penalties were imposed.

Defendant appeals and argues:

POINT I.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE SEARCH AND SEIZURE AND THE ARREST OF THE DEFENDANT VIOLATED THE FEDERAL AND STATE CONSTITUTIONS.

POINT II.

COUNTS EIGHT AND NINE SHOULD HAVE BEEN DISMISSED BECAUSE THE STATE FAILED TO PROVIDE PROOF OF THE POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE WITH INTENT TO DISTRIBUTE WAS WITHIN 1,000 FEET OF A SCHOOL AND 500 FEET OF A PUBLIC HOUSING FACILITY.

POINT III.

THE CONVICTION ON COUNT ONE MUST BE REVERSED AS THE JUDGE GAVE AN IMPROPER JURY INSTRUCTION UNDER THE LAWS OF CONSPIRACY BY STATING THAT AN OVERT ACT WAS NECESSARY TO BE PROVED. [NOT RAISED BELOW.]

POINV IV.

THE DEFENDANT'S SENTENCE MUST BE MODIFIED AS IT SHOULD HAVE BEEN ONE DEGREE LOWER AS PER N.J.S.A. 2C:44-1[f](2).

The only witnesses to testify at the motion to suppress hearing were Detective Joseph Darocha of the Newark Police Department and defendant. Detective Darocha testified as follows. On April 15, 2003, at approximately 1:30 p.m., Darocha together with Detective Matthew Donnellen and Sergeant Michael Leroux, officers of the City's Special Investigation Unit, Narcotic Section, were conducting undercover surveillance from an unmarked police motor vehicle. The motor vehicle was parked about forty to fifty feet from the front of 166A Court Street, a townhouse style apartment in a housing complex across the street from a school.

Darocha observed two black males "milling about" in front of the apartment, one of whom was co-defendant, Jamie Madmen, and the other, an unknown individual wearing a white headband. Darocha observed the two individuals engage in what he described as "hand[-]to[-]hand [narcotics] transactions," that is, "a quick transaction where a person would receive money in exchange for an item and walk away at a fast pace." During the first transaction, Darocha observed a man (buyer) approach the individual with the headband, who in turn called out "Toya." In response to her name, defendant came to the door of the apartment, and handed a small object to the man with the headband. The individual with the headband then gave the object to the buyer, who in turn gave money to Madmen. After the transaction was complete, defendant returned to the inside of the apartment. Shortly thereafter, Darocha observed a woman approach the man with the headband, who again called out defendant's name. Defendant exited the apartment, and handed a black plastic bag to Madmen, who took an item out of the bag, and handed it to the individual with the headband, who in turn gave it to the woman.

After observing the hand-to-hand narcotic transactions, the detectives moved against defendant, Madmen, and the third individual. Once the officers were in the parking lot close to the apartment, someone yelled "Five-O," and the three individuals ran into the apartment. Just before Madmen entered the apartment, he threw the plastic bag onto the porch in front of the apartment. While defendant and Madmen were apprehended inside the apartment, the police were not able to locate the individual with the headband, believing that he exited the apartment through a window. Detective Satinowski retrieved the bag that Madmen had discarded, and ascertained that it contained fifty glassine envelopes of heroin, and twenty-three vials of cocaine.

Defendant testified that she was home all day in the apartment with her grandmother, her brother Wayne, her cousin Kendra McClinton, and her three minor cousins, one of whom was D.H., age eleven. Defendant denied that she was going in and out of the apartment because she was in the process of braiding D.H.'s hair. Madmen was also in her apartment at times talking to her cousin Kendra. As she finished braiding D.H.'s hair, two of the minor cousins asked if they could leave the apartment and go to a store. At the time Madmen was in the apartment using the bathroom. As the two children left the apartment, defendant heard a boom, saw someone run through the apartment into her bedroom and close the door. The police entered the apartment immediately thereafter, threw defendant on the floor, and handcuffed her. Madmen was arrested as he exited from the bathroom. After the police searched the remainder of the apartment, they broke into her bedroom looking for the individual with the white headband, but found the room empty with the window open. While defendant and Madmen were still in the apartment, she observed Detective Donnellen exit her bedroom with "bottles of dope and batches of cocaine," at which time she heard him say "Oh, yeah, got something for you all. We are going to put this on you. Take them out." It was defendant's opinion that Donnellen planted the drugs on her.

At trial, Darocha testified in accord with his testimony at the suppression hearing. Also testifying for the State were Sergeant Leroux, Detective Donnellen, and Detective Reginald Holloway of the Essex County Sheriff's Office, Narcotics Bureau.

Donnellen confirmed the testimony of Darocha concerning the two hand-to-hand narcotic transactions, the discarding of the plastic bag on the porch by Madmen, and the subsequent arrests. Detective Holloway, after qualifying as an expert in the field of narcotics, testified that: 1) the rocky substance contained in the glass vials was cocaine; 2) the glassine envelopes containing the powdery substance were "decks" of heroin; 3) the street value of the vial of cocaine that he was shown in court was $5; 4) the street value of a deck of heroin was $10; 5) possession of twenty-three vials of cocaine coincides with distribution; 6) it was not uncommon for a dealer who engages in narcotic transactions to have two types of narcotics in one bag; 7) the rubber bands found in the plastic bag were commonly utilized for packaging narcotics; and 8) the plastic bag and the Zip-Loc bag inside were "stash" items "commonly utilized for the concealing of narcotics."

Responding to a hypothetical question based on Darocha and Donnellen's testimony concerning their observations of the two drug transactions and the subsequent arrests, Holloway opined that defendant and Madmen were engaged in the unlawful distribution of narcotics. Concerning the bag that was dropped by Madmen while running into the apartment, Holloway explained that narcotic distributors will often discard the narcotics, either hoping that the officer pursuing them will not notice the item being discarded, or believing that if the narcotics are not found on the person, the officer cannot connect them to the narcotics. Concerning defendant's activities inside the apartment, Holloway opined that she was "the overseer of the narcotics" which would make it more difficult for the police to seize the narcotics or she could have been the "runner" or "hands-on person." Sergeant Leroux's testimony was limited to the evidence seized, including $225 found in Madmen's possession.

Defendant argues that the trial judge erred in denying her motion to suppress evidence contending that evidence contained in the plastic bag that had been discarded by Madmen was unlawfully seized without a warrant, in violation of both the Federal and State Constitutions. We conclude otherwise.

The trial judge denied defendant's motion to suppress, determining that Detective Darocha's testimony was credible, and defendant's testimony was not.

The question at that point and the only question before me is whether that [in]formation as described by [Detective] [Da]rocha is information that is sufficient to justify a warrantless search and seizure and if that constitutes probable cause and/or circumstances justifying a warrantless search and seizure. Clearly it does.

The question really that seems to be presented to me is it [is] not so much that the proponents of the motion to suppress are the least bit surprised to find that [Detective] [Da]rocha is going to testify in the form in which he testified, made observations that I find to be credible, form a sufficient basis to justify a probable cause determination[,] and a finding that the evidence was constitutionally seized.

What I am being asked to determine is on a motion to suppress, find that[,] in fact[,] [Detective] [Da]rocha's testimony is not credible. Well, quite to the contrary. I find the detective's testimony to have all the earmarks of credibility. He did not come in here with an intent to d[e]ceive. In fact, his testimony was just hesitant and vague enough to present to me on one of these rare occasions where I get to judge credibility, where I[,] in fact[,] invade the province of the jury[,] and find that everything about [Detective] [Da]rocha was credible from the demeanor and posture to presentation. It had the ring of credibility.

The judge accepted Detective Darocha's testimony that "these individuals were signaling each other, securing objects, [and] passing the objects to each other. To the officers[,] that would represent a classic narcotics transaction[,] and would certainly result in further investigation of individuals participating in these hand[-]to[-]hand transactions, including the defendants, Madmen and Ward." Continuing, the judge stated "[t]hat resulted in [] Madmen discarding a plastic bag. That discarding occurred in plain view[,] and in the plain view of [Detective[ [Da]rocha[,] who was on public property at the time he made those observations."

Unreasonable searches and seizures by police are prohibited by the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution. State v. Johnson, 171 N.J. 192, 205 (2002). A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement. State v. Frankel, 179 N.J. 586, 598 (2004). "Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary." Ibid. We determine exigent circumstances existed, and that the conduct of the police in pursuing defendant, as well as the other two individuals involved in the drug transactions, and in seizing the plastic bag containing the evidence, was proper.

Detective Darocha observed defendant involved in a crime, the sale of illicit drugs. Based on his observations, the police had probable cause to arrest. State v. Josey, 290 N.J. Super. 17, 30 (App. Div.) (citing State v. Seymour, 289 N.J. Super. 80, 87-88 (App. Div. 1996)), certif. denied, 146 N.J. 497 (1996). "The Fourth Amendment is not violated when the police justifiably pursue a fleeing criminal into his apartment after the criminal has committed a serious crime in their presence. Indeed, the police are under duty to follow and arrest such a fleeing criminal." Id. at 31. "Pursuing [defendant and the two other individuals] into [defendant's] apartment was plainly justified in order to effect [their] arrest and prevent the likely destruction of [other possible] evidence." Id. at 30. Upon pursuing defendant, Madmen, and the third suspect, the police were required to cross the porch entrance into the apartment, and had the lawful right to seize the plastic bag that had been discarded by Madmen in their presence.

An appellate court's scope of review of a trial court's determination is limited. We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid. With the trial judge determining the issue of credibility in favor of the State, we conclude that the denial of the motion was proper.

Defendant argues for the first time that the State failed to establish beyond a reasonable doubt that the act of possessing cocaine and heroine with intent to distribute occurred within 1,000 feet of school property, and 500 feet of a public housing facility (Counts Four, Eight, Five, and Nine), as required by N.J.S.A. 2C:35-7, and N.J.S.A. 2C:35-7.1a. The State counters, in part, that "the record demonstrates defendant stipulated to the fact that 166A Court Street was within 1,000 feet of a school zone and within 500 feet of a public housing facility."

In support of its argument, the State refers to the prosecutor's representation to the court at the close of the State's case, when introducing items of evidence into the record, stating: "Counsel stipulated to the school zone, so I . . . would [not] be submitting anything else." While defendant did not object to the prosecutor's representation, the record is silent as to a formal stipulation that 166A Court Street is part of a public housing facility, or located within 500 feet of a public housing facility and within 1,000 of school property as required by the statutes governing the charges on Counts Four, Five, Eight, and Nine. Although the State argues that there is other evidence in the record from which the jury could have reasonably inferred that 166A Court Street was part of a public housing facility or located within the required distances of such a facility and that of school property, we determine it necessary for a proper disposition of this appeal to establish whether or not the State and defendant entered into a formal stipulation concerning those elements of the two charges and whether that stipulation was communicated to the jury. Accordingly, we remand to the trial court for the limited purpose of reconstructing the record concerning: 1) whether there was a stipulation concerning the aforesaid elements of the two charges; and 2) if there was a formal stipulation, whether the jury was advised of the same and instructed concerning its consideration of the facts stipulated. We request that the hearing be conducted expeditiously, and the requisite findings of fact be forwarded to us by June 30, 2006.

Accordingly, we affirm the decision denying defendant's motion to suppress evidence, but remand to the trial court for further proceedings in accordance with this opinion. Jurisdiction is retained.

 

The Detective's surname is spelled in the transcript of March 10, 2003, as "Arocha;" in the transcript of October 1, 2003, as "Darocha;" in defendant's brief as "Rarocha;" and in the State's brief as "Darocha." Because the spelling of the surname in the State's brief is the same as the spelling of the surname in the transcript of October 1, 2003, we have spelled the Detective's surname throughout this opinion as "Darocha."

Also present during the surveillance and time of the arrest, were Detective Joseph Satinowski and several other detectives of the same investigation unit.

Detective Darocha testified at the trial that "Five-O" is a "street term" that is used to inform people that police are in the area. See also, State v. Johnson, 171 N.J. 192, 200 (2002).

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A-1212-04T4

May 15, 2006