STATE OF NEW JERSEY v. ODWAYNE WRIGHT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4212-04T44212-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ODWAYNE WRIGHT,

Defendant-Appellant.

_________________________________________________

 

Submitted March 22, 2006 - Decided May 11, 2006

Before Judges Stern and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

Indictment No. 00-11-1852.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Stephen M. Bunda, Designated

Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mark P. Stalford,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant was tried to a jury and convicted of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a (count one), possession with intent to distribute, N.J.S.A. 2C:35-5b(3) (count two), and possession with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three). Counts one and two were merged into count three and defendant received a ten-year sentence in the custody of the Commissioner of Corrections.

Defendant was present on August 1, 2000 when four Long Branch police officers executed a search warrant at the apartment of Rene Poole. At the N.J.R.E. 104 Miranda hearing, Officer Charles Shirley testified that he arrested defendant, read the Miranda warnings to him, asked defendant if he understood the warnings, and heard defendant acknowledge his understanding and state he had no questions about them. Defendant testified at the hearing and acknowledged the waiver but denied making any statement. Defendant testified:

Q Okay, all right. And after your arrived there, you got arrested?

A Right after I arrived there I got arrested.

Q Okay. And what happened after you got arrested?

A After I got arrested, the cop took me outside.

Q Okay. And did he say anything to you?

A Just reading my rights. That's it.

Q Okay. And did you understand your rights?

A Yes, sir.

Q And did you let him know that?

A Yes, sir.

According to Officer Shirley, after defendant waived his Miranda rights, he told the police that Ms. Poole was his "girlfriend" and that he stayed at her apartment "three to four times a week." When asked if he knew why the police were there, he stated "yeah, I knew that we were going to get caught." Defendant was also asked where he purchased the crack found in the apartment, and he responded that he brought it "from his home in New York City" because it could be purchased "cheaper" there.

Officer Shirley essentially gave the same testimony at trial, and acknowledged that defendant had not been the initial "target" of the investigation, although he did have an apartment key on his key chain. Defendant did not testify at the trial, but Ms. Poole did testify, and assumed all responsibility for the drugs, stating that defendant had no involvement in the possession or sale of her crack cocaine.

On this appeal defendant argues that his oral statement to the police should not have been admitted into evidence at trial in the absence of "indisputable evidence that he made a knowing and voluntary waiver of his Miranda right to remain silent," that a judgment of acquittal should have been entered, and that his sentence was manifestly excessive and imposed in violation of the Sixth and Fourteenth Amendments to the federal constitution.

Defendant contends that the State did not sustain its burden as to the admissibility of his statement that he had brought the crack cocaine to Long Branch with him from New York. There is no question that the State has the burden of proving, beyond a reasonable doubt, both voluntariness of a defendant's statement and compliance with Miranda. State v. Cook, 179 N.J. 533, 552, 562-63 (2004); State v. Presha, 163 N.J. 304, 313 (2000); State v. Cooper, 151 N.J. 326, 353-56 (1997); State v. Kelly, 61 N.J. 283, 293-94 (1972). Admissibility is a question for the judge to decide, N.J.R.E. 104(c), and we cannot disturb a determination by the trial judge if supported by sufficient credible evidence. State v. Sheika, 337 N.J. Super. 228, 238-39 (App. Div.), certif. denied, 169 N.J. 609 (2001); State v. Godfrey, 131 N.J. Super. 168, 174-75 (App. Div. 1974), aff'd o.b., 67 N.J. 267 (1975). Once admissibility is established, the credibility of the statement is for the jury to decide. Cook, supra, 179 N.J. at 552; State v. Jordan, 147 N.J. 409, 419-20 (1997); State v. Hampton, 61 N.J. 250, 272 (1972); N.J.R.E. 104(c). The fact that there were three officers in the apartment and only one testified at the N.J.R.E. 104 hearing and asserted that he gave the warnings and secured the waiver is not dispositive of the issue. See Sheika, supra, 337 N.J. Super. at 239-40.

Ms. Poole, the lessee of the apartment and subject of the warrant, testified that defendant was not in any way involved with her possession or distribution. Defendant insists that he was therefore entitled to a judgment of acquittal. However, the State produced enough evidence by virtue of the defendant's presence at the scene, his relationship to the premises, and his admission to sustain the conviction. See State v. Reyes, 50 N.J. 454, 458-59 (1967). The State's proofs at trial included defendant's admission that he "knew we were going to get caught." Moreover, when the police executed the warrant and twenty-seven bags of crack cocaine were taken from her closet, Ms. Poole told the police "it's not my s---. I ain't taking the hit" for defendant. This statement corroborated defendant's confession.

Ms. Poole testified at trial and was available for cross-examination. Hence, there is no claim that what she told Officer Shirley at the time the warrant was executed was inadmissible. She testified that she had known defendant for "three weeks to a month," at the time of their arrests, she was not his "girlfriend," and the drugs were hers. She acknowledged selling drugs from her apartment and said that defendant did not help "in any way." He visited her only "once in a blue moon" and "happened to be at the wrong place at the wrong time." She also testified that she got her drugs from Camden, denied telling the police "that the drugs belonged to somebody else," and denied telling police that she was "not taking the hit" for defendant.

We recognize that the testimony concerning defendant's confession and Ms. Poole's incriminatory comment came exclusively from Officer Shirley, but his credibility was clearly for the jury to resolve.

Defendant received a ten-year sentence. The judge found the existence of aggravating factors three, six and nine, N.J.S.A. 2C:44-1a(3),(6),(9), but did not expressly relate all of these factors to defendant's criminal record. Accordingly, we affirm the conviction but remand for resentencing on the merged count. See State v. Natale, 184 N.J. 458 (2005).

Affirmed, and remanded for resentencing.

 

Another detective gave expert testimony in the case.

(continued)

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A-4212-04T4

May 11, 2006