STATE OF NEW JERSEY v. AMIR FARRAKHAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5367-03T45367-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMIR FARRAKHAN,

Defendant-Appellant.

____________________________

 

Submitted March 14, 2006 - Decided April 27, 2006

Before Judges Coburn and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, 01-10-1833-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Ruth Harrigan, Designated Counsel,

of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Mary E. McAnally, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was found guilty of second-degree conspiracy of possession with intent to distribute cocaine, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5, (count one); third-degree possession of a controlled dangerous substance, heroin, contrary to N.J.S.A. 2C:35-10(a)(1), (count two); third-degree possession of a controlled dangerous substance, cocaine, contrary to N.J.S.A. 2C:35-10(a)(1), (count three); second-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(2), (count four); third-degree possession of a controlled dangerous substance, heroin, with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(3), (count five); third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7, (count seven); third-degree possession of heroin with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7, (count eight); and third-degree maintaining a fortified structure, contrary to N.J.S.A. 2C:35-4.1(c), (count thirteen). On January 23, 2004, defendant was sentenced to a mandatory extended term for an aggregate twenty-five years with a twelve and one-half year period of parole ineligibility.

On appeal defendant sets forth the following arguments:

POINT I - THE TRIAL COURT ERRED BY DENYING THE MOTION FOR SUPPRESS THE EVIDENCE FOUND IN THE APARTMENT AFTER AN ILLEGAL SEARCH AND SEIZURE.

POINT II - THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT III - DEFENDANT IS ENTITLED TO RESENTENCING BECAUSE HIS SENTENCING TERM WAS ENHANCED ON THE BASIS OF FACTS NOT PROVEN TO A JURY BEYOND A REASONABLE DOUBT IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS AND HIS SENTENCE IS EXCESSIVE AND ILLEGAL.

Defendant moved to suppress evidence resulting from the warrantless search of the apartment he occupied on June 26, 2001. The State's testimony at the suppression hearing was that at approximately 6:15 p.m. on June 26, 2001, a reliable confidential informant advised Asbury Park Police Officers Barnes, Cox, Montgomery and Sergeant DeSane that defendant was selling cocaine from Apartment Four at 610 Asbury Avenue. The informant related he had purchased cocaine from defendant at the apartment on numerous occasions including the preceding week and that he witnessed defendant selling drugs to others. The informant also advised that surveillance equipment within the building warned defendant of approaching customers or the police.

Officer Barnes testified that he responded to numerous calls at 610 Asbury Avenue while on patrol which he said was located in a high narcotic trafficking neighborhood. He was familiar with the fact that Apartment Four was located in the attic and stairs led from the apartment to the living area. He testified that the building was located in a high narcotic trafficking neighborhood. He knew defendant for about fifteen years as "Danny Williams" and discovered there was an outstanding warrant for defendant under that name.

The police set up surveillance at 610 Asbury Avenue. Officer Barnes saw two women, subsequently identified as Mae Williams and Roberta Simmons, walk onto the front porch where they were met by the defendant and escorted inside. Barnes then radioed the other police officers that defendant was inside the building. Barnes and Cox then entered the building while Sergeant DeSane maintained surveillance and Officer Montgomery covered the rear. Barnes and Cox knocked on the door of Apartment Four and announced they were police. They then heard footsteps running from the rear of the apartment to the front. At the same time Sergeant DeSane saw an arm come through a screen on a front window of Apartment Four and drop what appeared to be bags of controlled dangerous substance onto an awning over the first-floor porch. DeSane radioed Barnes of his observation, and Barnes once again knocked. When defendant answered the door, Barnes arrested him on the open warrant.

The officers heard footsteps upstairs and Barnes testified they entered the apartment to prevent further destruction of evidence. The apartment was unfurnished. There was a digital scale on the kitchen counter and plastic bags on the stove. Williams and Simmons were sitting on the living room floor five-feet away from glassine folds of heroin stamped with the label "Rush." Officer Cox arrested both Williams and Simmons. Defendant was searched by Officer Barnes, who found $101, a cell phone and a pager on his person.

When Barnes went outside, DeSane showed him where the packets had been dropped on the awning. Barnes climbed on the roof and recovered four bags of crack cocaine. He then returned to the front room of the apartment from which the drugs were dropped and discovered a television monitor which showed the outside of the building. He followed the wires installed in the house paneling and found a connection to a camcorder located outside the building. Moreover, in the kitchen of Apartment Four Barnes found wires leading to a downstairs apartment. Barnes knocked on that door, which was opened by Anthony Swearine. Barnes saw fireworks sitting on a table next to a camera which display the front of the building with wiring that ran to Apartment Four. Swearine was then arrested and taken to police headquarters. On arrival the police found a red pill bottle containing nineteen glassine bags of cocaine, a bag of marijuana, a bag of powdered cocaine, a bag of crack cocaine and seven pills discarded by Swearine in the back seat of the police vehicle.

Defendant testified at the suppression hearing that Apartment Four at 610 Asbury Avenue had been leased three days prior to his arrest by Kendra Brantley, a woman with whom he was having a relationship. He said that earlier that day he had asked his mother, Mae Williams, to clean the apartment. He said that his mother was inside the apartment with Simmons and Campbell when he arrived. Defendant also testified that the front door was always locked and that it was necessary to let people into the house with a key. He said the door was very heavy and automatically closed. He said the police kicked the door in to enter the building. He denied that he, Williams or Simmons threw drugs out of the apartment window. He said there were no drugs in the apartment and the charges against him were an act of revenge against him by Officer Montgomery for having a romantic relationship with Montgomery's former girlfriend. Countering the State's contention that exigent circumstances justified the warrantless search of the apartment, defendant argued that the police fabricated their story and created the exigent circumstances to justify the warrantless search. After considering the testimony and arguments of counsel, the motion judge denied the application to suppress evidence. The judge found the officers' testimony credible that exigent circumstances were present after the observation of drugs discarded from the apartment window, which in turn justified entry into apartments Four and Two where drugs and evidence of drug distribution were found.

A warrantless entry and seizure is reasonable and thereby constitutional when there is probable cause to suspect the contraband is located on the premises and exigent circumstances arise that require an immediate search and seizure. State v. Hutchins, 116 N.J. 457, 463 (1989). Here the police had received information from a reliable confidential informant that defendant was distributing drugs from the apartment and had an arrest warrant for defendant. Upon arrival, their arrest of defendant on the warrant coupled with hearing persons running within the apartment and the observation of drugs thrown from a window connoted illegal drug activity as well as an attempt to destroy evidence of drug possession and distribution. Therefore, exigent circumstances justified the entry, search and seizure of evidence. See State v. Stott, 171 N.J. 343, 358 (2002); Hutchins, supra, 116 N.J. at 460-66.

Defendant's argument that the trial judge should have granted his motion for judgment of acquittal on all counts following the State's proofs has no merit. State v. Josephs, 174 N.J. 44, 80 (2002); State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Roldan, 314 N.J. Super. 173, 184-90 (App. Div. 1998). There was ample circumstantial evidence that defendant, either as principal or accomplice, possessed controlled dangerous substances with intent to distribute, cocaine, heroin and paraphernalia consistent with drug distribution, in addition to a surveillance system to detect the presence of police or others approaching the building. Defendant's contention that he was merely present at the apartment when drugs were discovered presented a factual issue to the jury to consider as against the State's proofs that he constructively possessed the controlled dangerous substances with the intent to distribute. See State v. Palacio, 111 N.J. 543, 550 (1988); State v. Brown, 80 N.J. 587, 593 (1979); State v. Zapata, 297 N.J. Super. 160, 177 (App. Div. 1997), certif. denied, 156 N.J. 405 (1998).

Defendant was sentenced on January 23, 2004, prior to the decision of State v. Natale, 184 N.J. 458 (2005). The sentencing judge found aggravating factors 3, 6, 9 and 11 prior to imposing a sentence of twenty-five years with an aggregate twelve and one-half year period of parole ineligibility. Since defendant received a sentence above the presumptive term, we remand for resentencing based on Natale.

Affirmed in part. Reversed in part.

 

(continued)

(continued)

8

A-5367-03T4

April 27, 2006