STATE OF NEW JERSEY v. CALEB ODESTIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3823-03T43823-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CALEB ODESTIN,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 26, 2005 - Decided

Before Judges Parker and Grall.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-10-1225.

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Caleb Odestin appeals from a judgment of conviction entered after he pled guilty to two counts of third degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and b(3); and one count of fourth degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(12). He was sentenced to a two year term of probation and the mandatory drug penalties.

The facts pertinent to this appeal are as follows. On March 20, 2002, Elizabeth Police Officer Jack Sacca was conducting an undercover surveillance operation in the area of Jefferson Park in Elizabeth. Without disclosing his exact location during the surveillance operation, Sacca testified that at about 4:30 p.m. on March 20 he observed a woman wearing a red jacket in front of 425 Jefferson Avenue. The woman, later identified as Tammy Watts, was pulling on the door and calling up to the windows. A man came out of the building and chased her away. At about the same time, two men were standing on the porch at 471 Madison Avenue. One of the men, later identified as defendant, walked down the steps and motioned Watts to come over. After they spoke for a moment, defendant walked with Watts to 471 Madison, opened the door and went in. The officer testified that he could see Watts' red coat through the glass doors inside the building. Defendant and another man, later identified as Jean Diaz, walked out of the building and down to the street level. After looking up and down the street, defendant went back to the foyer of 471 Madison. A short time later, Watts came out of the building and ran into Jefferson Park. Believing he had observed a narcotics transaction, Sacca radioed his backup units who stopped and arrested Watts for possession of cocaine.

After Watts was arrested, another woman, later identified as Torey Goosby, walked up to defendant and Diaz. Again, defendant opened the door of the building at 471 Madison and let her into the foyer. After looking around, defendant went inside and the woman came out shortly thereafter. Again, Sacca believed he had observed a narcotics transaction and radioed the backup units who stopped and arrested Goosby for possession of marijuana.

Still later the same day, Sacca observed a man, later identified as Joseph Banks, walk up to defendant and Diaz. Defendant directed the man into the same foyer at 471 Madison. Sacca then observed a hand-to-hand transaction between defendant and Diaz, after which defendant went into the foyer. The man came out shortly thereafter and, again, Sacca radioed backup to stop and arrest him.

After observing the three transactions, Sacca radioed the backup units to arrest defendant and Diaz. In a search of the building's foyer and hallway, the police found baggies of marijuana hidden in the staircase. No cocaine was found, however. When defendant was arrested he was in possession of $46 in cash, but no drugs.

Sacca testified during the suppression hearing that he observed the transactions leading to defendant's arrest through 10 x 50 power binoculars from a distance of 300 feet.

When defendant's motion to suppress was denied, he entered a plea of guilty. In this appeal, defendant argues:

I. BECAUSE THE OFFICERS' OBSERVATIONS DID NOT ESTABLISH PROBABLE CAUSE TO ARREST, THE SEARCH OF DEFENDANT WAS UNLAWFUL AND THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS.

Defendant argues that

the observations of the surveillance officer were not sufficient to establish probable cause either to search the alleged buyers, or to arrest defendant and Diaz (and search them incident to arrest). Hence, the search violated the principles set forth in the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution.

We disagree.

We have carefully considered the record and we are satisfied that there was more than sufficient evidence to establish probable cause for defendant's arrest. R. 2:11-3(e)(2). Moreover, because defendant was not a resident of the premises at 471 Madison, he lacks standing to challenge the search of the foyer and hallway. State v. Bruns, 172 N.J. 40, 53 (2002). Nor did he have a reasonable expectation of privacy in the premises searched. State v. Arthur, 149 N.J. 1, 12-13 (1997). We affirm essentially for the reasons stated by Judge Katherine Dupuis on the record on August 13, 2003. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

5

A-3823-03T4

November 14, 2005