STATE OF NEW JERSEY v. KHALIL PATRICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2448-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KHALIL PATRICK,

Defendant-Appellant.

__________________________

 

Submitted April 19, 2010 - Decided

Before Judges Rodr guez and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-02-0159.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mary M. Theroux, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Khalil Patrick appeals from his conviction for possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1), and from the four year prison sentence imposed. Defendant contends that the trial court should have suppressed evidence of a statement he made to the police, that the verdict was against the weight of the evidence, and that there were errors in the sentence. We find no merit in any of these contentions, and we affirm.

I

We summarize the trial testimony pertinent to the issues defendant raises in this appeal. The police were patrolling a housing complex where they knew drug dealers typically conducted business in the stairwells of the buildings. The police observed several people looking out a fourth story window, and believed they might be looking for customers to whom they could sell drugs. When they found no drug activity on the fourth floor, the officers climbed to the fifth floor where they found defendant standing in a hallway with a female companion. They observed what looked like a bundle of glassine envelopes of heroin on a window ledge in front of defendant.

Defendant grabbed the bags with his left hand, put them in his mouth and swallowed them; he also grabbed something else from the ledge with his right hand and swallowed it. The police found chunks of crack cocaine on the window ledge and on a baseboard heater below the window. The police also found a "white powdery residue" on defendant's lips and "on the fingers of his right hand." They arrested him.

The defense presented testimony from defendant's girlfriend, who asserted that on the day in question she saw a woman using drugs in the hallway. She asked defendant, who was visiting her, to tell the woman to go away. According to this witness, as defendant was confronting the woman in the hallway, the police appeared. She testified that although defendant had not been using drugs, the police assaulted him and arrested him.

The jury acquitted defendant of tampering with evidence and hindering apprehension and convicted him of cocaine possession.

We next summarize the evidence relating to the motion to suppress. At a Miranda hearing, Sergeant Todd Michael Kelly testified that after he took defendant to police headquarters, he arranged for medical personnel to advise defendant about the dangers of swallowing illegal drugs. Before advising defendant of his Miranda rights, Kelly began asking defendant for "pedigree" information such as his address and contact information. During this conversation, defendant spontaneously told Kelly that one of his female companions had "found a drug dealer's stash" and was showing it to defendant when the police arrived. Thinking that the police "would charge him with it," defendant "tried to get rid of it."

In his hearing testimony, defendant contended that he was well aware that anything he said could be used against him later, and he vehemently denied making the statement. The trial judge concluded that Kelly was a more credible witness. She found that defendant made a spontaneous statement that should not be suppressed. However, the State did not introduce the statement at the trial.

II

On this appeal, defendant presents the following points for our consideration:

POINT I: THE TRIAL COURT'S EVIDENTIARY RULING THAT DEFENDANT-APPELLANT'S STATEMENT MADE SUBSEQUENT TO HIS ARREST AND WITHOUT BENEFIT OF HIS MIRANDA WARNING CONSTITUTED PLAIN ERROR WARRANTING REVERSAL.

POINT II: THE VERDICT OF THE JURY WAS NOT SUPPORTED BY THE WEIGHT OF THE SUBSTANTIAL, CREDIBLE EVIDENCE ADDUCED AT TRIAL.

POINT III: THE TRIAL COURT'S IMPOSITION OF A CONSECUTIVE SENTENCE IN THE EXTANT CASE WAS GROSSLY EXCESSIVE AND CONSTITUTED A MANIFEST DENIAL OF JUSTICE.

POINT IV: THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.

Having thoroughly reviewed the record, we find that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

On the Miranda issue, we must defer to the trial judge's factual findings and credibility determinations, which are supported by substantial credible evidence. See State v. Locurto, 157 N.J. 463, 474 (1999). Defendant made a spontaneous statement concerning swallowing the drugs, at a time when the police had not started interrogating him. The suppression motion was properly denied. See State v. Cryan, 363 N.J. Super. 442, 453 (App. Div. 2003). And even if the ruling was erroneous, the error was harmless because the statement was never introduced at the trial.

Defendant may not challenge the verdict as being against the weight of the evidence, because he did not file a motion for a new trial. R. 2:10-1; State v. McNair, 60 N.J. 8, 9 (1972). However, even if we consider the argument it is without merit. There was ample evidence on which the jury could have concluded that defendant was in constructive possession of the crack cocaine on the window ledge. See State v. Afanador, 134 N.J. 162, 178 (1993). We will not speculate as to why the jury acquitted defendant of evidence tampering and hindering apprehension. See State v. Banko, 182 N.J. 44, 53 (2004).

Finally, we find no abuse of discretion or other error in the sentence. See State v. Roth, 95 N.J. 334, 364 (1984). The judge sentenced defendant to two consecutive four year sentences for this drug conviction and a second separate drug conviction, with both sentences to be consecutive to an eighteen month sentence defendant was currently serving for joyriding. She explained, pursuant to State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct 1193, 89 L. Ed. 2d 308 (1986), that she imposed consecutive sentences because the offenses were completely separate, and defendant had an extensive criminal record.

While we affirm the sentence, we note the trial judge's acknowledgement that defendant has a long history of drug addiction which has apparently gone untreated. Nothing in our opinion would preclude defendant from moving for resentencing to a drug treatment program pursuant to Rule 3:21-10(b).

Affirmed.

 

The arresting officer did not know how many envelopes were in the bundle or whether the amount was consistent with possession for sale or personal use.

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

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A-2448-07T4

May 4, 2010