STATE OF NEW JERSEY v. KIN-NAH L. TIMOTHY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5698-04T45698-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIN-NAH L. TIMOTHY,

Defendant-Appellant.

______________________________

 

Submitted July 12, 2006 - Decided August 11, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of

New Jersey, Law Division, Cumberland

County, Indictment No. 03-10-1024.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael

Confusione, Designated Counsel,

of counsel and on the brief).

Zulima V. Farber, Attorney General,

attorney for respondent (Joie Piderit,

Deputy Attorney General, of counsel

and on the brief).

PER CURIAM

Defendant Kin-Nah L. Timothy pled guilty pursuant to a negotiated plea agreement to one count of second-degree possession of cocaine with intent to distribute, in violation of N.J.S.A. 2C:35-5b(2). He was sentenced to a five-year term of imprisonment, with twenty-seven months of parole ineligibility. The court also imposed the mandatory fines and penalties.

Prior to entering into this plea agreement, defendant moved to suppress the evidence seized by the State. After conducting an evidentiary hearing, in which two police officers testified on behalf of the State, the trial court denied defendant's motion.

Defendant now appeals raising the following arguments.

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.

POINT II

THE TRIAL COURT ERRED IN NOT PERMITTING DEFENDANT AN OPPORTUNITY TO CALL A WITNESS ON DEFENDANT'S BEHALF AT THE SUPPRESSION HEARING.

POINT III

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE COUNSEL FAILED TO PROPERLY OBTAIN THE TESTIMONY OF THE DEFENSE WITNESS FOR THE SUPPRESSION HEARING. (Not Raised Below)

POINT IV

THERE WAS AN INSUFFICIENT FACTUAL BASIS FOR DEFENDANT'S GUILTY PLEA. (Not Raised Below)

POINT V

THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.

We reject these arguments and affirm. We are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We make the following brief comments in the interest of clarity.

The record before us is derived from the testimony of the two State witnesses who testified at the suppression hearing. Sergeant Paul Shadinger of the Vineland Police Department was one of these witnesses. Based on information received from a confidential informant ("CI"), Shadinger and other members of his department were deployed to a specified location where they set up a surveillance operation to detect the sale of illicit narcotics. The CI gave the police the description of two men who were the alleged traffickers and indicated that they would be standing outside of an apartment building.

Upon arriving at this location, Shadinger immediately noticed two men who fit "the exact description" given by the CI. According to Shadinger, after observing the two men for a period of time:

I observed the two male subjects matching that description standing there conversing with each other. As a vehicle pulled in, I watched both of them walk up to the vehicle and what I believed was a hand-to-hand exchange took place or -- or a hand-to-hand exchange did take place. Based on my training and experience, I believe it was some type of narcotic transaction. I advised the other members of the team that were waiting.

Shadinger identified defendant as one of the men he saw involved in this illicit drug transaction.

Thereafter, as Shadinger and the rest of the officers with him began walking toward defendant and his companion, the two men began to run. The police officers at the scene were wearing the "Street Crimes uniform," which Shadinger described as a "police shirt" with "Vineland Police" on the corner and the word "Police" across the back.

With the police in pursuit, defendant and his cohort ran inside the apartment building. Defendant then ran inside apartment 4A just as the police entered the foyer of the building. All the while, the pursing officers continually yelled "stop, Police," to no avail. Once inside the apartment, defendant ran into the bathroom. As he entered the bathroom, Shadinger observed defendant standing by a window, and the toilet "was flushed or flushing." Shadinger immediately "grabbed" defendant and "attempted to subdue him and get him on the ground and handcuff him." Another officer recovered a bag of cocaine that was "swirling" in the toilet water.

As Judge Farrell correctly held, these facts clearly show that the police had probable cause to arrest defendant at the scene of the hand-to-hand drug transaction. There were also exigent circumstances authorizing the pursuing police officers to enter the private residence in question without first obtaining a warrant. See State v. Bolte, 115 N.J. 579, 597-98, cert. denied, 493 U.S 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989); State v. Josey, 290 N.J. Super. 17, 24-25 (App. Div.), certif. denied, 146 N.J. 497 (1996). Once inside the apartment, the same exigent circumstances permitted the police to enter the bathroom where defendant was in the process of discarding evidence of the crime, by attempting to flush down the toilet what was subsequently established to be more than fourteen grams of cocaine.

Finally, because the ineffective assistance of counsel argument raised in Point III may require the presentation of facts not found within this record, defendant is free to seek a review of this issue in the context of a post-conviction relief petition. State v. Preciose, 129 N.J. 451, 459-64 (1992). We express no opinion on the merits of defendant's claim, nor of the need for a plenary hearing if a petition is filed.

Affirmed.

 

 

(continued)

(continued)

5

A-5698-04T4

August 11, 2006