State v. FarielloState v. Fariello
Defendant was convicted of possession of marijuana, possession of marijuana with intent to distribute, maintaining premises which were resorted to by persons for the purpose of unlawful distribution of marijuana and possession of a dangerous knife. He was sentenced to concurrent indeterminate sentences at Yardville.
On this appeal defendant contends that the trial court erred in denying his motion to suppress evidence. The search which led to the discovery of the evidence was authorized by a search warrant which had been issued on the basis of a supporting affidavit of a State Police detective supplemented
While we agree that compliance with the requirements of
It is true that a burden upon the administration of justice is created by the failure of the judge issuing the warrant to file a transcript or a summary. The failure however is not of constitutional dimension. Cf. United States ex rel. Washington v. Yeager, 448 F.2d 87 (3 Cir. 1971), cert. den. 404 U.S. 967, 92 S.Ct. 345, 30 L.Ed.2d 287 (1971). Neither the Fourth Amendment of the United States Constitution nor the provisions of Article I, paragraph 7 of the New Jersey Constitution impose any such requirement. The obligation of making a record of the supporting factual allegations is entirely created by rule of court. Application of an exclusionary rule may have been necessary as a means of forcing police officials to comply with constitutional guarantees against unreasonable searches. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Bisaccia, 58 N.J. 586 (1971); State v. Kasabucki, 52 N.J. 110 (1968). The warrant in the present case was issued at about 11 P.M. at the home of the issuing judge. In view of this circumstance and the evidence we have detailed below, we see no necessity to exclude consideration of information supplied to the judge who issued the search warrant merely because that judge failed to comply fully with a court-made rule. See State v. Clemente, supra, 108 N.J. Super. at 198. The provisions of the rule have sometimes been regarded as directory. State v. Harris, 98 N.J. Super. 502, 504 (App. Div. 1968), certif. den. 51 N.J. 396 (1968). We believe that the conclusion in Stolzman injects an atmosphere of rigidity in an area requiring a degree of flexibility. Our conclusion, however, should not be construed as approval or condonation of the failure of the issuing judge to comply with
We turn now to an examination of the sufficiency of the facts upon which the warrant was issued. We approach our task with the realization that we must pay substantial deference, as did the trial judge, to the finding of probable cause by the issuing judge. State v. Perry, 59 N.J. 383, 393 (1971); State v. Kasabucki, supra, 52 N.J. at 120 (1968). We are not, as defendant suggests, required to weigh the factual accuracy of the assertions of the officer making application for the warrant. State v. Petillo, 61 N.J. 165, 174 (1972), cert. den. 410 U.S. 945, 93 S.Ct. 1393, 35 L.Ed.2d 611 (1973).
The affidavit recited that the officer had reason to believe that drugs were located on the premises; that officers of the New Jersey State Police had occasion to check the contents of an army-type duffle bag found in a vehicle under the control of residents of the property; that the duffle bag contained numerous plastic bags weighing approximately one pound apiece containing a green vegetable substance identified as marijuana. In addition, the detective told the judge issuing the warrant that the vehicle in which the marijuana
We have no doubt that the information supplied to the issuing judge, when considered in its totality, was sufficient to generate a well-founded suspicion that a crime was probably being committed at the premises. State v. Ebron, 61 N.J. 207 (1972); State v. Waltz, 61 N.J. 83, 87 (1972).
Defendant next contends that his convictions for possession of marijuana and maintaining premises to which persons resorted for the purpose of distributing marijuana merged with the conviction for possession with intent to distribute. The State contends that since various quantities of marijuana, marijuana residue and hashish were found in several locations, the drugs were possessed for varying purposes. No such distinction was made when the items were offered in evidence. We are persuaded, under the circumstances in which the evidence was admitted at the trial, that the charge of possession was a lesser included offense in the charge of possession with intent to distribute. State v. Ruiz, 127 N.J. Super. 350 (App. Div. 1974); State v. Wilkinson, 126 N.J. Super. 553 (App. Div. 1973), certif. den. 63 N.J. 562 (1973). Cf. State v. Williams, 129 N.J. Super. 84 (App. Div. 1974). We are not persuaded, however, that merger has occurred with respect to the offenses of possession with intent to distribute and maintaining premises which were resorted to by persons for the purpose of distribution. Here there are elements of each offense which are separate and distinct. In order to prove the offense of maintaining it was necessary for the State to prove that defendant exercised control
Defendant further contends that his conviction under
Defendant further contends that the trial court failed to give an adequate instruction with regard to the charge of possession of a dangerous knife. We have examined the record and note that ultimately the judge, at defendant‘s request, charged the jury in accordance with the language of State v. Edwards, 120 N.J. Super. 46 (Law Div. 1972). We find no error possessing the capacity of bringing about an unjust result. The charge ultimately given was consistent with the holding of State v. Green, 62 N.J. 547 (1973), which was decided after the trial in this matter.
Defendant‘s final contention relates to the contents of a gray metal box which was introduced in evidence for the purpose of demonstrating defendant‘s connection with the premises. Because we were not able to determine precisely what had been included in the exhibit we remanded the matter to the trial court before oral argument. We are satisfied from the findings of the trial judge that no probation report or probation booklet was in the box when it was presented to the jury. The trial judge also found as a fact that defendant had an adequate opportunity to check the contents of the box with his attorney. The box contained many items of a personal nature, including letters, poetry and other writings of an intimate nature. No objection to their admission in evidence was made, however, and we are not persuaded that their submission to the jury had the capacity of bringing about an unjust result.
We find no plain error. State v. Macon, 57 N.J. 325 (1971); State v. LaPorte, 62 N.J. 312 (1973). Defendant‘s final contention that the performance of his trial counsel was so inadequate as to deprive him of the effective assistance of counsel is also without merit. While it may have been better trial strategy to object to the admission of the items in question, we cannot say that the absence of such an objection indicates that counsel was inadequate. State v. Bentley, 46 N.J. Super. 193, 203 (App. Div. 1957). We do not find that the trial was a farce or a mockery of justice. State v. Edge, 57 N.J. 580, 593 (1971).
The judgment of conviction for possession of marijuana is vacated. In all other respects the judgment is affirmed.