State v. Allah-Jr.

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STATE OF NEW JERSEY, Plaintiff-Respondent, v. IBE ALLAH-JR., a/k/a IBE ALLAH and IBE O. ALLAH, JR., Defendant-Appellant.

No. A-3326-21

Superior Court of New Jersey, Appellate Division

August 14, 2024

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued November 29, 2023

Before Judges Vernoia, Gummer and Walcott-Henderson.

On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Indictment No. 21-01-0025.

Lucas B. Slevin, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney Lucas B. Slevin, of counsel and on the briefs).

Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Nancy A. Hulett, of counsel and on the brief).

Nathaniel Levy, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Angela Cai, Deputy Solicitor General, David Chen, Deputy Attorney General, and Nathaniel Levy, of counsel and on the brief).

PER CURIAM

Defendant Ibe Allah-Jr. appeals from his conviction and sentence for possessory drug and weapons offenses. He argues the court erred by denying his motion to suppress physical evidence admitting improper lay- and expert-opinion testimony, and imposing an excessive sentence based in part on an improper consideration and weighing of statutory factors. He also argues he is entitled to a reversal of his conviction due to improper statements made by the prosecutor during closing arguments and because his weapons conviction violates the Second Amendment of the United States Constitution. Having considered defendant's arguments, the State's opposition, and the applicable law, we affirm defendant's conviction, vacate the order denying defendant's suppression motion, and remand for further proceedings on defendant's suppression motion and for the court to correct errors in the judgment of conviction and to determine if defendant is entitled to an additional day of jail credit on his sentence.

I.

The charges against defendant resulted from New Brunswick Police Department Detective Brandt Gregus's investigation of a confidential informant's report that an individual, who was later identified as defendant, was distributing drugs on a New Brunswick street corner. According to Detective Gregus, at around 9:00 a.m. on August 9, 2019, he undertook surveillance of the corner at the intersection of Lee Avenue and Seaman Street and observed defendant engage in two separate exchanges of wax folds of heroin for cash: one with an individual who had approached defendant in a vehicle and the other with an individual whom defendant had approached on foot.

With the aid of binoculars and from his surveillance vantage point, Detective Gregus observed that during the first transaction with the individual in the vehicle, defendant first spoke to the individual and then walked across the street where he bent down and looked into one of two black plastic bags that were located next to a fence near a public sidewalk in front of a residence. Detective Gregus testified he saw defendant retrieve heroin from one of the plastic bags, return to and enter the vehicle, and hand the heroin to the individual in the vehicle in exchange for money. Detective Gregus testified defendant then exited the vehicle and walked across the street where minutes later he approached a man wearing a blue shirt who gave defendant cash in exchange for "bags of heroin."

Following each transaction, Detective Gregus reported what he had seen to another officer, who was located nearby in a vehicle. Detective Gregus described the vehicle involved in the first transaction to the other officer for the purpose of having the officer conduct a motor-vehicle stop, but the officer could not locate the vehicle after it departed from the scene of the transaction. Similarly, following his observation of the transaction between defendant and the man in the blue shirt, Detective Gregus provided a description of the man to the other officer, who sought to stop the man but could not locate him.

Detective Gregus briefly left the location where he had made his observations of the transactions and met with the other officer. They returned to the intersection where defendant had engaged in the transactions, and detained defendant. Detective Gregus crossed the street and seized the two black plastic bags. One bag contained 164 wax folds of heroin and the other bag contained a nine-millimeter handgun with a large-capacity magazine loaded with thirteen rounds of ammunition; one round was in the chamber and two rounds were determined to be hollow-point bullets. The officers arrested defendant and, during a search incident to his arrest, seized a large amount of cash and a cell phone from him.

A grand jury returned an indictment^[1] charging defendant with third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); second-degree possession of a CDS with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-5(a) and 2C:35-7.1 (count three); third-degree possession of a CDS with intent to distribute within 1,000 feet of a school property, N.J.S.A. 2C:35-5(a) and 2C:35-7 (count four); second-degree unlawful possession of a weapon (handgun), without having obtained a permit to carry under N.J.S.A. 2C:58-4, N.J.S.A. 2C:39-5(b) (count five); fourth-degree possession of a prohibited device (body armor piercing ammunition), N.J.S.A. 2C:39-3(f) (count six); fourth-degree unlawful possession of a large-capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count seven); second-degree possession of a firearm while possessing a CDS with intent to distribute under N.J.S.A. 2C:35-5, N.J.S.A. 2C:39-4.1 (count eight); third-degree receiving stolen property (the handgun), N.J.S.A. 2C:20-7 (count nine); and third-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25 (count ten).

Following the indictment, defendant moved to suppress the physical evidence-the handgun, magazine, and heroin-seized from the plastic bags.^[2]The court held an evidentiary hearing during which Detective Gregus was the sole witness. Detective Gregus testified concerning his surveillance of defendant on the street corner, his observations of the two suspected transactions, his observations of defendant's retrieval of wax folds of suspected heroin from one of the black plastic bags, his recovery and seizure of the black plastic bags, his discovery and seizure of the handgun, magazine, and heroin from the bags, and defendant's arrest.

The State argued the court should deny defendant's suppression motion, claiming defendant did not have a reasonable expectation of privacy in the plastic bags because they had been placed against a fence and near a public sidewalk across from the street corner where defendant had allegedly engaged in the suspected transactions. The State also argued the search was proper under the plain-view exception to the warrant requirement because Detective Gregus had seen defendant pull wax folds of heroin from the bags.

The court denied the motion, finding defendant did not have a reasonable expectation of privacy in the plastic bags because they had been placed outside the fence of the residence, were close to a sidewalk, and "were accessible to anyone." Based on those findings, the court found the search of the bags "was . . . completely justified." The court further determined it was therefore unnecessary to consider the State's argument that the search of the bags was proper under the plain-view exception to the warrant requirement. The court entered an order denying the suppression motion.

Prior to defendant's trial, the court also conducted a N.J.R.E. 104 hearing on the admissibility of testimony from Middlesex County Prosecutor's Office (MCPO) Detective Michael Metz as the State's proposed expert witness in street-crimes terminology. The State had advised defendant it intended to call Detective Metz to provide expert testimony concerning slang used by defendant in text messages that had been obtained from a search of the cell phone found in his possession when he was arrested.

Over defendant's objection, the court qualified Detective Metz as an expert in street-crimes terminology. The court further determined Detective Metz could testify at trial that certain words-slang-used in text messages found on defendant's cell phone referred to illicit drugs and a handgun.

During the trial, the court dismissed counts six and ten, which charged defendant with fourth-degree possession of body armor piercing ammunition, and third-degree financial facilitation of criminal activity, respectively. The jury found defendant not guilty of third-degree possession of a CDS with intent to distribute (count two); second-degree possession of a CDS with intent to distribute within 500 feet of public property (count three); third-degree possession of a CDS with intent to distribute within 1,000 feet of school property (count four); second-degree possession of a firearm while possessing a CDS with intent to distribute (count eight); and third-degree receiving stolen property-the handgun (count nine).

The jury found defendant guilty only of the possessory drug and weapons offenses: third-degree unlawful possession of a CDS heroin (count one), second-degree unlawful possession of handgun (count...