STATE OF NEW JERSEY v. ANTHONY LORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5847-06T45847-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY LORE,

Defendant-Appellant.

___________________________________________________________

 

Submitted December 2, 2009 - Decided

Before Judges Graves and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

00-06-1279.

Yvonne Smith Segars, Public Defender,

attorney for appellant (John P. Monaghan,

Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Annmarie Cozzi,

Senior Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

In a two-count indictment, defendant Anthony Lore was charged with third-degree possession of cocaine (count one) and third-degree possession of heroin (count two), in violation of N.J.S.A. 2C:35-10(a)(1). Defendant was also charged with the disorderly persons offenses of possession with intent to use a hypodermic needle, in violation of N.J.S.A. 2C:36-6, and possession with intent to use drug paraphernalia, in violation of N.J.S.A. 2C:36-2.

On December 9, 1999, defendant was arrested following a motor vehicle stop in Fort Lee, New Jersey. At approximately 3:18 p.m., Officer John Harper responded to a report of a motor vehicle illegally parked in a fire lane outside a drugstore. When Harper arrived on the scene, he observed defendant's car was illegally parked and saw a second individual enter the passenger's side of the car. Defendant then drove away.

Harper activated his overhead lights and siren and stopped the car because of the parking violation. After Harper asked defendant to produce his license, registration, and insurance card, defendant leaned over to reach into his glove compartment and Harper observed a small "sharp metal object sticking out of the top of [defendant's] left breast T-shirt pocket," which resembled a piece of a metal umbrella frame. Based on his training and experience, Harper believed the metal object was used to clean drug residue from a pipe or glass tube, and he asked defendant to step out of the car. Harper removed the object from defendant's pocket, searched the pocket, and recovered a piece of folded aluminum foil containing a white powdery substance. Harper suspected the white powder was cocaine. He then placed defendant under arrest, read him Miranda warnings, and conducted a pat-down search for weapons. During the search, Harper found a small clear plastic Ziploc bag with "a rock substance in it" located in defendant's right front pants pocket, together with three glassine envelopes that contained a brown powdery substance.

Detective Eager of the Fort Lee Police Department arrived on the scene and asked defendant's passenger to step out of the car. As he did so, the detective observed a small black pouch on the floor of the passenger's side of the vehicle, removed it from the car, opened it, and found a small black pipe and a hypodermic needle inside. Officer Harper asked defendant if it was his pouch and he said it was. A subsequent laboratory analysis established that the substance found in defendant's pants pocket was .39 grams of heroin, and the white powder found in his shirt pocket was .32 grams of cocaine.

Prior to trial, defendant moved to suppress the metal object, the controlled dangerous substances, the hypodermic needle, and the drug paraphernalia, arguing the evidence was discovered as a result of an illegal search and seizure. Following an evidentiary hearing, the trial court denied defendant's motion to suppress. Defendant also objected to the court trying the disorderly persons offenses with the indictable offenses, claiming the disorderly persons charges would prejudice the jury. However, the trial judge overruled the objection, finding that the disorderly persons and indictable offenses were part of the same case under the res gestae doctrine.

Officer Harper was the only witness to testify at defendant's trial. Therefore, as defense counsel noted in her summation, Harper's credibility was critical in the jury's determination of whether defendant committed the offenses charged. On October 25, 2000, the jury returned a guilty verdict on the indictable offenses.

Following the jury's verdict, the court found defendant guilty of the two disorderly persons offenses. Defendant was sentenced to a discretionary seven-year extended prison term for third-degree possession of cocaine, and a concurrent four-year term for third-degree possession of heroin. No term of imprisonment was imposed as a result of the disorderly persons convictions. However, the judgment of conviction required defendant to pay the following sums: $200 to the Victims of Crime Compensation Board (VCCB) ($50 on each count of the indictment and the disorderly persons offenses), $300 to the Safe Neighborhoods Services Fund (SNSF) ($75 on each count of the indictment and the disorderly persons offenses), a $3000 Drug Enforcement and Demand Reduction (DEDR) penalty ($1000 on each count of the indictment and $500 for each disorderly persons offense), $200 in forensic laboratory fees ($50 on each count of the indictment and the disorderly persons offenses), and a $30 Law Enforcement Officers Training and Equipment Fund penalty.

Defendant appealed from his convictions and sentence and this court affirmed in an unpublished opinion. State v. Lore, No. A-062-03T4 (App. Div. Sept. 24, 2004). Defendant petitioned for certification, and the Supreme Court remanded for reconsideration of defendant's motion to suppress in light of State v. Eckel, 185 N.J. 523 (2006). State v. Lore, 186 N.J. 601 (2006).

In State v. Eckel, the Supreme Court considered the applicability of the search incident to arrest exception to the warrant requirement, and held that "a warrantless search of an automobile based not on probable cause but solely on the arrest of a person unable to endanger the police or destroy evidence cannot be justified under any exception to the warrant requirement and is unreasonable." Eckel, supra, 185 N.J. at 540. The Court reasoned that "[o]nce the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception is inapplicable." Id. at 541.

However, if the search incident to arrest exception does not apply, "there may be justification to search a vehicle under the automobile exception." State v. Pena-Flores, 198 N.J. 6, 20 (2009). The police may conduct a warrantless search of a vehicle when: "(1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." Id. at 28 (citing State v. Cooke, 163 N.J. 657, 667-68 (2000)). The determination of whether such exigency is present in a particular case depends on "the totality of the circumstances." Ibid.

In Pena-Flores, the court held that a trial court should consider the following factors in deciding whether exigent circumstances make it impracticable to obtain a warrant:

. . . the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

[Id. at 29.]

Moreover, the Court concluded "[f]or purposes of a warrantless search, exigent circumstances are present when law enforcement officers do not have sufficient time to obtain any form of warrant." Id. at 29-30 (citing State v. Johnson, 193 N.J. 528, 556 n.7 (2008)).

In this case, the trial court ruled on remand that Eckel required suppression of the black pouch that was recovered from defendant's car, which contained a hypodermic needle and drug paraphernalia, because defendant and the passenger had been removed from the vehicle and they posed no threat to the officers or the evidence. Nevertheless, the court determined that the improper admission of the hypodermic needle and drug paraphernalia did not affect defendant's convictions for possession of cocaine and heroin, because those substances were discovered as a result of a constitutional pat-down search of defendant's person.

The court memorialized its ruling in an order dated January 17, 2007. However, despite the judge's finding that the hypodermic needle and drug paraphernalia should have been suppressed at trial, the order did not amend defendant's judgment of conviction to reflect not guilty findings on those offenses.

On appeal, defendant argues the trial court should have ordered a new trial because the improper admission of the hypodermic needle and drug paraphernalia into evidence prejudiced the jury in reaching its verdict on the two indictable offenses. In response, the State contends the inadmissible evidence "did not lead the jury to a verdict it otherwise might not have reached," because "the jury found Officer Harper's testimony that he found CDS in defendant's shirt and pants pockets credible." We agree.

However, because the trial court's remand order did not address the disorderly persons convictions, the State concedes "an amended judgment of conviction should be entered to reflect a finding of not guilty" and to vacate the monetary penalties imposed on these charges. The judgment of conviction required defendant to pay the following assessments for the disorderly persons offenses: two $50 VCCB assessments, two $75 SNSF assessments, two $500 DEDR penalties, and two $50 forensic laboratory fees. Accordingly, we remand to the trial court for entry of a corrected judgment of conviction that reflects a finding of not guilty on the disorderly persons charges of possession with intent to use drug paraphernalia and possession with intent to use a hypodermic needle, and that vacates the penalties imposed on those charges.

The order of January 17, 2007, is affirmed, but the matter is remanded for the entry of a corrected judgment of conviction.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-5847-06T4

May 25, 2010