Author Archives: Tonacchio Law, LLC
Cops catch alleged snuggie wearing thief
Nothing exciting about this story, just rather funny. Police in Newton, NJ arrested Brandon Ryzner-Meredith for allegedly trying to break into a grocery store. Witnesses reported that he was wearing some type of trench coat. However, when police came, they found him wearing a dark blue snuggie. Police allege that he was using the snuggie to conceal himself. He was charged with criminal mischief, criminal attempt of burglary and possession of burglar’s tools.
Story is here.
Quick thoughts on Robert Higbee trial for May 13th
Not much happened on Wednesday due to various delays. The State Trooper that testified, Anthony Mertis investigated the crash. The major aspect of his testimony was the stop sign and whether or not it was illuminated. I missed most of the cross due to TruTv’s schedule, but I did catch some.
It seems like Higbee’s attorney, William Subin did focus on the fact that the video shown to the jury which depicts the stop sign was overly illuminated due to the Trooper Mertis’ car and the lights that he had on. Mr. Subin also brought out the fact that Trooper Mertis was aware of other accidents at the same location. In addition, Mr. Subin established once again that Higbee was following proper protocol when he was attempting to go after the speeder.
All in all, I’d have to give the win to the defense for Wednesday’s brief proceedings.
Judge’s scenarios were improper, but there was no objection
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELBIO DONOFRIO,
Defendant-Appellant.
___________________________
Before Judges Wefing and LeWinn.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-03-0286.
Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for the respondent (Peter DeRose, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Tried to a jury along with co-defendant Stanley Jacques, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1. He was sentenced to a term of five years of incarceration with an eighty-five percent period of parole ineligibility. Defendant appeals his conviction and sentence. For the reasons that follow, we affirm.
The factual background may be summarized as follows. Carlos Gabriel-Baez testified that on December 21, 2005, at approximately 6:00 p.m., he was riding his bicycle in the area of Salem Avenue in Elizabeth. Three individuals approached him, hit him, emptied his pockets, ripped his earring from his ear, threw him to the ground, removed some of his clothing and kicked him in the ribs and head. The assault lasted “[a]bout five, ten minutes.” Eventually, Baez was able to escape and ran home. When Baez arrived at his residence, he encountered police officers who had one of the individuals in their patrol car. The officers “took [Baez] to see the other one that was arrested.” Baez recognized these individuals as two of the three people who had assaulted him.
In court, Baez identified defendant and Jacques as those two individuals. When asked if he had ever seen the defendants before, Baez answered, “I was working on that same street and I constantly have been going around there and I had seen them before.” On cross examination, Baez stated that he “used to work in a tire place in that street and [he] used to see them coming up and down that street.”
Baez testified that he was “scared” during the assault because he didn’t know “what [was] going to happen.” He further stated that he had pain in his ribs and permanent scarring, as well as pain in the earlobe that had been ripped when his earring was taken.
Elizabeth Police Officer Paul Camarinha testified that, as a result of information he received at approximately 6:00 p.m. on the date in question, he responded to an area in Elizabeth where he encountered and detained defendant. The officer transported defendant to Baez’s residence.
Elizabeth Police Officer James Szpond testified that he and his partner, Officer Luis Garcia, responded to the report of an incident at approximately 6:06 p.m. He observed three males who “began walking away from the area . . . very quickly[,]” when “it appeared that they noticed the squad car[.]”
Szpond and his partner exited their vehicle and detained one of the individuals, co-defendant Jacques, who was holding a set of keys in his hand. Szpond testified that, at the place where the three individuals were first spotted, the officers found “a bicycle and a pile of clothing.”
Baez arrived at the scene and identified Jacques as one of the individuals who had assaulted him. He also identified the keys, bicycle and clothing as his property, which was then released to him.
Defendant testified on his own behalf. He acknowledged that he was on Salem Avenue in Elizabeth at approximately 6:00 p.m. on December 21, 2005. Defendant stated that he was “by [himself]” and that co-defendant Jacques was “[u]p the street.” Defendant stated that he was on the street at that time selling drugs. Defendant then encountered Baez, whom he knew prior to that occasion.
When defendant was asked how he knew Baez, he responded, “Selling drugs . . . .” The prosecutor immediately objected. The judge excused the jury and conducted a voir dire. Defense counsel argued that defendant should be permitted to give this testimony to contradict Baez’s testimony that he only knew defendant from seeing him around the neighborhood. Defense counsel argued: “This is what these guys do and this is how they all know each other and it . . . defuses the babe in the woods innocence the victim tends to portray, especially when you look at the confusing and conflicting testimony he’s given in the inconsistent statements.”
Defendant testified further during the voir dire that Baez had approached him earlier in the day on December 21, 2005, and had purchased two “bottles” of crack cocaine for twenty dollars. Defendant testified that “[Baez] . . . came back around 6 o’clock on a bike[,]” to purchase more crack cocaine. Defendant “handed [the drugs] to him. [Baez] . . . grabbed [the drugs] out of [defendant’s] hand and started taking [them] away on the bike.” As Baez rode off, defendant “grabbed his hand, tried to get [the drugs] back. That is when [they] began tussling when [Baez] was on the bike.”
At the conclusion of the voir dire, the trial judge ruled that defendant would be permitted to testify about his drug transaction with Baez. The judge was “satisfied that the prejudicial impact [did] not outweigh[] the probative value . . . .”
Defendant then resumed testifying before the jury, and stated that he had sold drugs to Baez on at least three or four prior occasions. He further testified, as he had on voir dire, that Baez approached him earlier in the day on December 21, 2005, and purchased crack cocaine for twenty dollars, and that Baez returned at 6:00 p.m. on his bike to purchase additional drugs. Defendant described how Baez grabbed the drugs out of defendant’s hand and tried to take off on his bicycle without paying, and how defendant and Baez then “began tussling while he was . . . still on the bike.” Defendant stated that Baez “tried to steal” the drugs from him, and “tried to take [them] out of [defendant’s] hand and take off on his bike.”
Defendant testified that Baez “got off the bike and [they] began pushing and shoving. After that . . . is when the fight started.” Jacques and a third individual “named Marcus that [defendant] knew from . . . around the neighborhood[,]” joined in the fight.
Defendant admitted punching and kicking Baez, but denied taking anything from him. Defendant testified that Baez was “fighting back and yelling . . . all kinds of stuff in Spanish.”
When defendant saw a marked police car, he “[s]tarted walking away[,]” because he “was selling drugs.”
On appeal, defendant raises the following arguments for our consideration:
POINT ONE
THE COURT’S ACCOMPLICE LIABILITY CHARGE BOLSTERED THE STATE’S CASE AND DENIED [DEFENDANT] A FAIR TRIAL BECAUSE IT WAS NOT TAILORED TO THE FACTS OF THE CASE. (Not Raised Below)
POINT TWO
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT SENTENCING [DEFENDANT] TO A DOWNGRADED SENTENCE
In a pro se supplemental brief, defendant raises the following additional argument:
[THE] JURY ERRED WHEN IT CONVICTED DEFENDANT . . . OF ROBBERY BASED ON THE TESTIMONY OF CARLOS BAEZ.
Having considered these arguments in light of the record and the applicable law, we find them to be without merit.
Defendant’s contention that the trial judge erred in charging the jury on accomplice liability is raised as plain error, as defendant lodged no objection to this instruction at trial. Pursuant to that standard, defendant must demonstrate that the error was “of such a nature as to have been clearly capable of producing an unjust result . . . .” R. 2:10-2. Where, as here, there was a failure to object, we may presume that counsel considered the instructions adequate as given. “It may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment.” State v. Macon, 57 N.J. 325, 333 (1971).
Defendant’s specific complaint regarding the accomplice liability charge is not addressed to the instructions on the elements of such liability. Rather, defendant challenges three “scenarios” that the judge gave the jury, which were intended to be examples of accomplice liability. The specific language at issue is as follows:
Let me now explain how accomplice liability may apply to the testimony in this case. And in recalling this testimony, remember, I’m just giving you — I’m not saying that this is how you should find, but I’m giving you possibilities how you could apply this accomplice liability to the testimony in this case.
If you found, for example, the testimony of Carlos Baez to be credible and believable and you found the defendant Donofrio’s testimony to be not credible in only he was the initial person to have contact with Baez, you may conclude that Donofrio intended to commit a robbery, but that Jacques joined in only in assaulting the defendant.
Under the same scenario you may find that Baez was not detailed enough as to what each defendant did, but if the testimony of the police officer, that Jacques was found with the keys, convinced you that it was only after the assault was long concluded that Jacques decided to take Baez’ property. In short, there are a large variety of different findings you could make depending upon your findings as to the defendants in this case and as to the mental state you find of each defendant.
You m[a]y find the testimony of Baez to be credible and believable and find that they both agreed to commit the offense of robbery. These are all possibilities that you could find, depending upon your findings of fact and your findings as to the mental state of the defendants.
Early in its deliberations the jury requested re-instruction on accomplice liability. In re-charging the jury, after addressing the elements of accomplice liability, the trial judge reiterated his “scenarios” as follows:
For example, if you found the testimony of Carlos Baez to be credible and believable and you found Donofrio’s testimony to be only credible in that he was the initial person to have contact with Baez, you may conclude that Donofrio intended to commit a robbery, but that Jacques joined in only in assaulting [Baez] or that Jacques did not join in the assault upon Baez, but decided only after the assault to take advantage of the situation and to deprive Baez of his property. You might also conclude that Donofrio engaged in a physical altercation with Baez, but only to regain his crack cocaine and, therefore, committed no offense or, at worst, a simple assault, but that Jacques seeing the altercation joined in it with the intent to deprive Baez of his property and he is, therefore, guilty of robbery by his own conduct.
Immediately after giving these examples, the trial judge further instructed the jury as follows:
Now, I’m not suggesting, in any way, that you make those findings. I’m just trying to give you examples of how the testimony — how the verdicts could change depending upon your findings as to the mental state of each individual and whether or not there actually was a robbery or an altercation, as described by Carlos Baez.
Remember, you are the sole and exclusive judges of the facts and of the credibility of the witnesses, and based upon your findings you are entitled to believe all of a witness’ testimony, part of it or none of it. In short, there are a variety of different verdicts that you could return, but they depend upon your findings not only as to each defendant’s conduct, but also their mental state.
Defendant argues that these “scenarios” are “problematic” because they (1) “do not support the defense theory that both defendants engaged in assault but not robbery”; (2) “they substantiate the credibility of the [S]tate’s witnesses only, and not the [defendant]”; and (3) “they suggest that the option of acquittal was merely an afterthought that the court was obligated to provide, as opposed to a viable option worth considering.”
We acknowledge that these “scenarios” were extraneous and unnecessary elements of an otherwise proper jury charge on accomplice liability. We conclude, however, that these “unchallenged” comments did not rise to “plain error clearly capable of producing an unjust result.” State v. Afanador, 151 N.J. 41, 54 (1997).
In his initial charge, the judge instructed the jury that:
You, and you alone are the sole and exclusive judges of the evidence, of the credibility of the witnesses and the weight to be attached to the testimony of each witness. Regardless of what [c]ounsel says or what I may say or have said in recalling the evidence in this case, it is your recollection of the evidence that should guide you as judges of the facts.
Moreover, as noted earlier, the judge expressly prefaced his “scenarios” to the jury with the disclaimer that he was offering them “possibilities” as to how the jury “could apply . . . accomplice liability to the testimony in this case.” The judge expressly told the jury that he was not “saying that this [was] how [the jury] should find . . . .”
When the judge re-charged the jury in response to their question, he reiterated that he was giving them “examples” only; and the judge repeated the instruction as to the exclusive role of the jury in weighing the evidence and assessing credibility.
Under these circumstances, we consider the comments challenged here to be mere surplusage that do not rise to the level of plain error. R. 2:10-2.
Defendant next contends that the trial judge erred in failing to sentence him to a term of incarceration appropriate to a third-degree crime.
N.J.S.A. 2C:44-1(f)(2) provides:
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.
[(Emphasis added).]
Here, the trial judge found that aggravating factors number two, “[t]he gravity and seriousness of harm inflicted on the victim[,]” and number nine, “[t]he need for deterring the defendant and others from violating the law” applied. N.J.S.A. 2C:44-1(a)(2) and (9). The judge found three mitigating factors applicable: number seven, “[t]he defendant has no history of . . . criminal activity[,]” number nine, “[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense,” and number ten “[t]he defendant is particularly likely to respond affirmatively to probationary treatment[.]” N.J.S.A. 2C:44-1(b)(7), (9) and (10).
The trial judge found that, notwithstanding the substantial support defendant received from family and friends, “what [defendant] was to them was not the same person he was on the street, even by his own admission . . . . [S]o the good things they say about him are somewhat mitigated by his own admission.” The judge also found that defendant did not admit his guilt or take responsibility “at this time[,]” but stated that he did not “hold that against [defendant] . . . .”
In sum, the trial judge was not “clearly convinced” that the three mitigating factors “substantially” outweighed the two aggravating factors and, therefore, the judge did not sentence defendant to a third-degree term. N.J.S.A. 2C:44-1(f)(2). Our review of the record convinces us that the judge’s analysis of the aggravating and mitigating factors was “based upon competent credible evidence in the record . . . .” State v. Roth, 95 N.J. 334, 364 (1984). We note that the State requested a sentence of seven years. The judge nonetheless sentenced defendant to a term of five years, which is at the bottom of the range for a second-degree offense.
Finally, we reject as wholly without merit defendant’s contention in his pro se supplemental brief that the jury erred when it convicted him based on the testimony of Baez. The trial judge granted defendant’s request to testify as to the nature of the relationship between defendant and Baez, namely that Baez had purchased drugs from defendant on several occasions and that a drug transaction was the basis for the incident on the night of December 21, 2005. The credibility of that testimony was within the province of the jury to assess. R. 2:11-3(e)(2).
Affirmed.
Court holds that drugs were in plain view
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LOUIS STEWART,
Defendant-Appellant.
_________________________________
Before Judges Payne and Waugh.
On appeal from Superior Court of New Jersey, Law Division Cumberland County, Indictment No. 06-10-996.
Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).
Anne Milgram, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).
PER CURIAM
Defendant Louis Stewart appeals his conviction, following a guilty plea, for second-degree possession of cocaine with intent to distribute. N.J.S.A. 2C:35-5(a)(1), -5(b)(2). Prior to entering the plea, Stewart moved unsuccessfully to suppress evidence seized as the result of a warrantless search at 105 Bank Street in Bridgeton. On appeal, Stewart contends that the motion should have been granted and the evidence suppressed. We disagree and affirm.
I
We discern the following facts from the record made during the evidentiary hearing on the motion to suppress, which was held on August 10 and 16, 2007.1 Detective Louis Santiago of the Bridgeton Police Department was on duty on June 10, 2006. At that time, Santiago was with the Anti-Crime Team (ACT), which is a “plain clothes assignment dealing with street level narcotics and quality of life issues.” Santiago was working the night shift. His assigned area was the 100 block of Bank Street. Santiago testified that in June 2006, the 100 block of Bank Street was “laced with illicit narcotic activity, prostitution, [and] robberies.”
Santiago and other members of the unit walked through an alleyway towards 110 and 112 Bank Street. Once they arrived at that point, they began to watch 105 Bank Street, which they knew to be the residence of Gloria Hicks. Santiago was familiar with Hicks from previous calls to her residence. Three weeks prior to the night in question, Hicks had come to the police station and reported that she had been assaulted by James McNair at her home. She told the officers that she had a bad drug habit and that “things were getting out of control in her residence.” Santiago told Hicks that he would from time to time check up on her to make sure that everything was alright at her home.
Santiago positioned himself across the street from 105 Bank Street and observed it for fifteen to twenty minutes. He saw people going into 105 Bank Street through the front door and, on occasion, the back door. After a very brief time, the individuals would leave Hicks’s residence and go across the street to 108 Bank Street. They would remain at 108 Bank Street for a few moments and then return to 105 Bank Street. They would knock and, when the door opened, enter 105 Bank Street.
After watching the activity described above, Santiago and other members of the team crossed the street to observe 108 Bank Street. After making further observations, they went to the back of the house directly across from 110-112 Bank Street – one house north of 105 Bank Street. From that location Santiago watched the back of 105 Bank Street and observed “a continuation of the pedestrian traffic in and out of the residence.”
According to Santiago, the activities he observed were consistent with drug dealing. Santiago decided to go to the back door, knock, and attempt to speak with Hicks. However, as Santiago and Detective Kirsten Loew got to the landing of the back door, Bobby Taylor and McNair approached the back door from the front of the house. As Taylor stepped onto the landing, he looked over and saw Santiago, who was himself approaching the landing. Santiago described Taylor’s reaction as follows:
He looked at us, his eyes opened up and he stepped back, and he began to mumble under his voice. I couldn’t understand what he was saying. Bobby Taylor looked at us, and again, he had an expression of shock on his face.
Without knocking, Taylor opened the back door and walked into the house. The door stayed open, but McNair stood on the landing without entering the house. Santiago walked up to the door, stood at the doorway, and looked into the house, but did not cross through the doorway at that point.
As Santiago was approaching the doorway, he had observed people sitting in the living room. Once the back door was opened, he was able to see the range, the kitchen sink, and a counter. Santiago saw a plastic bag and a scale on the counter. He saw green vegetation, which appeared to be marijuana, inside the bag.
There were eight people in the living room, with Stewart and Howard Russell sitting near the scale and the marijuana. Russell was closest to the marijuana, and Stewart was to his right. At that point, Santiago was less than ten feet from the counter top and two or three feet from Stewart and Russell.
Loew asked Santiago: “[W]hat are they doing over there?” When Santiago looked over toward Stewart and Russell, the two men were fumbling with a clear plastic bag. Santiago likened their motions to a game of hot potato – neither man wanted to hold the bag. Stewart eventually ended up with the bag, which he then threw behind the seats.
Santiago was familiar with both Stewart and Russell. Santiago also knew Taylor from a prior, drug-related offense. Based upon what Santiago saw Stewart and Russell doing with the plastic bag and his knowledge about the neighborhood and the house, Santiago believed that they were trying to get rid of drugs. Santiago made these observations within seconds of being at the door of the house.
After making his observations, Santiago and other members of his team entered the house and handcuffed both Stewart and Russell. The plastic bag handled by Stewart and Russell was found to contain crack cocaine.
On August 16, 2007, Judge Timothy G. Farrell denied the motion to suppress. After finding Santiago’s testimony credible and reciting the facts adduced at the hearing, Judge Farrell gave the following reasons for denying the motion.
When law enforcement officers execute a valid search or seizure of an individual, any contraband located in plain view may be seized. Arizona v. Hicks, 480 U.S. 321, [107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987)]; Payton v. New York, 445 U.S. 573, [100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)]. The initial intrusion by the police must be lawful. In other words, it must be justified by a warrant or recognized exception to the warrant requirement. The observation of the item must be made from a permissible vantage point; that is the officers involved must have a right to be where they are when they perceive the existence of the evidence.
There are two additional requirements that have to be satisfied for the plain view exception to apply. First, the officer [] has to discover the evidence inadvertently, meaning that he did not know in advance where the evidence was located, or intend beforehand to seize it. Next, it has to have been immediately apparent to the police that the items in plain view were evidence of a crime or contraband, otherwise, subject to seizure. Coolidge v. New Hampshire, 403 U.S. 443, [91 S. Ct. 2022, 29 L. Ed. 2d 564] (1971); State v. Bruzzese, 94 N.J. 210, 236-37 (1983)[, cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)]; State v. Padilla, 321 N.J. Super. 96, 109 (App. Div.), [certif. denied, 162 N.J. 198 (1999)].
The immediately apparent language should not be construed to mean that the officer knew that certain items were contraband, or evidence of a crime. It is sufficient that the police officer, from a permissible vantage point, has probable cause to believe that the item observed was contraband, or evidence. Bruzzese, [supra, 94 N.J.] at 236-37.
Here the State suggests that the officers had the right to be where they were, because it was an area known as the curtilage part of the property where members of the public were permitted to be. Curtilage is land adjacent to a home and may include walkways, driveways, and porches. State v. Johnson, 171 N.J. 192, 208-09 (2002). Whether the fourth amendment safeguards an area of curtilage depends on a consideration of various factors, including whether the area is included within an enclos[ure] surrounding the home, the nature of the uses to which the area is put, the steps taken by the resident to protect the area from observation by people passing by. Again, that would be Johnson, [supra, 171 N.J. at 208-09,] as well as United States v. Dunn, 480 U.S. 294, 301, [107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334-35] (1987).
An area within the curtilage to which the public is welcome, such as a walkway leading to an entrance to a home, is not afforded fourth amendment protection, because the resident has given . . . implicit consent to visitors to approach the home from that area. Again, that would be Johnson, [supra, 171 N.J.] at 209.
In other words, when a law enforcement officer walks to a front or back door for the purpose of making contact with a resident, and reasonably believes that the door is used by visitors, he is not unconstitutionally trespassing on that property. Again, Johnson, [supra, 171 N.J.] at 209.
Here, I find that the officers suspected something was afoot in the area of Ms. Hicks’s home, for two reasons, she told them, not on that particular night, but that it was an ongoing problem, and from their experience in the area. I believe Officer Santiago testified today that as part of the ACT he had gone to this home several times, although they had not found any drug transactions at that point, he had been involved in investigations . . . which dealt with drug usage.
. . . [A]nd I agree with [defense counsel], and I don’t think the State disputes it, there was no probable cause to get a search warrant at the time the officers went to the 105 Bank Street. I would suggest there wasn’t sufficient evidence to establish probable cause by seeing people come and go, even with the experience of the officers as to what was going on by the length of time it was taking each person to be in the home, how they were acting, as well as their experience that this was a high drug, or high crime area.
But, I would suggest that it was certainly sufficient evidence which would permit them to investigate further. When you add to that the request of Ms. Hicks for them to keep an eye on her home, I would suggest that the officers — based on that request — had every right to go knock on her door. But, even if we take that out of the equation, I find that [] their observations establish that the rear doorway of 105 certainly fit within the public use exception to the protections of the fourth amendment, particularly the night in question. They observed numerous folks coming in and out of 105 Bank Street on the first floor through the doorway, which was eventually approached by Officer Santiago. So, I find that he had a legal right to approach the house and step up onto the porch.
[Defense counsel] suggests that there was a major discrepancy between the police report and Officer Santiago’s testimony, because in the report the officer testified that he was “in the doorway,” when he saw the suspected marijuana. I don’t find any such inconsistency. To me, common usage of the phrase, “in the doorway,” basically means in the area of the doorway. It could be on either side of it. It could be in it. And, I don’t find any inconsistency to suggest that the officer meant, when he wrote the report, that he [had] actually stepped up and [was] standing in the threshold.
I find the officer’s testimony as to where he was located to be credible, and I find that what he observed through the doorway meets the plain view exception. I find that the law enforcement officer had a right to be where he was. I find that what he saw was inadvertent. I acknowledge that the officers had a hunch that there was something going on and that this was an area where drug transactions occurred on a regular basis. But, I find nothing in the record to suggest that they knew what they were going to find when they knocked on the door, which is what Officer Santiago indicated that he intended to do.
Likewise, I find that what he saw was [] immediately apparent as being contraband, [] or evidence, with regards of the sale of a controlled dangerous substance, and that he had probable cause to believe that the marijuana and the scale were evidence of a crime. Thus, I find that the officers had the right to then enter the structure once they saw the evidence in plain view.
Now, [defense counsel] argues that this was a police-created exigency, as prohibited in State v Hutchins, 116 N.J. 457, 460 (1989). . . . I find that [] the fact pattern in this case is markedly different than the fact pattern in Hutchins. Our Supreme Court and other appellate courts have recognized that the mere fact that police announce their presence or show themselves does not create an exigency. That’s not a police-created exigency, because if it was, every time the police were present some place they would be creating the exigency and therefore there would be no exception.
What happened in Hutchins is, the police had a tip that somebody was going to be selling drugs in the house, and they went and knocked on the door, and someone, the occupant, came to the doorway, and he had something in his hand, but they couldn’t see what it was, they just had a hunch that it was CDS. And, when they wanted him to show them, or to answer questions, he proceeded to go back into the home, which he had every right to do.
The police then followed him into the home and basically forced him to produce what he had [in] his hand. That’s not at all what we had here. I find that the fact that the police were surveilling the location because they suspected something, is not a police-created exigency, and when they get to the doorway, they didn’t have to do anything except look. And, when they look in the doorway, where []I believe it was Taylor had entered[,] what they saw at that point was in plain view. So, I find that the prohibition announced by the New Jersey Supreme Court in Hutchins does not apply here.
The State argues that once the officers saw what they saw, there were exigent circumstances for them to enter the home and secure the evidence. And, I agree. This is not the kind of case where they could have secured the house, waited for a warrant, because at that point that would suggest that they did have probable cause. The house was filled with people. Entering the house to secure the people would have created the same problem as entering the house to secure the evidence.
And, I find, as is often the case in drug related cases, that this is a case where destruction of evidence was an issue. . . . I don’t find that Mr. Stewart, or Mr. Russell, had attempted to throw [] what they had in[] their hands into a toilet and flush it, or to throw it out the window, or to pass it to someone who was running out the door. But, what we have here is an apartment, or a house, that’s got at least eight people [in] it when the police arrive.
They have plain view evidence of suspected marijuana and scales. I would suggest that [] what they see Mr. Stewart and Mr. Russell doing would cause a reasonable officer to believe that what they were passing back and forth, and trying to hide, was contraband, and there was a need to secure it.
On that same date, August 16, 2007, Stewart accepted a plea offer from the State. In exchange for entering a plea of guilty to count two, second-degree possession with intent to distribute cocaine, the State agreed to recommend that he receive a sentence of five years, with a two-and-one-half year period of parole ineligibility. Judge Farrell accepted Stewart’s conditional guilty plea, R. 3:9-3(f), finding that there was a sufficient factual basis to do so.
On October 19, 2007, Judge Richard Geiger imposed the recommended sentence, together with all mandatory fines and penalties. Stewart does not challenge the sentence on appeal.
This appeal followed.
II
Stewart raises the following issue on this appeal:
DEFENDANT’S MOTON TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE DRUGS WERE THE FRUITS OF AN UNLAWFUL ENTRY INTO THE HOUSE. AS THE DETECTIVE MADE HIS “PLAIN VIEW” OBSERVATION FROM A CONSTITUTIONALLY PROTECTED AREA OF THE HOUSE, NAMELY THE CURTILAGE, AND THE SEARCH OF THE HOUSE WAS WITHOUT A WARRANT, THE DRUGS SEIZED WERE “FRUITS OF THE POISONOUS TREE” AND MUST BE SUPPRESSED.
Having reviewed the record, Judge Farrell’s thoughtful opinion denying the motion to suppress, and the arguments raised in the briefs, we find Stewart’s appellate arguments to be without merit and not warranting extended discussion in a written opinion on appeal, R. 2:11-3(e)(2), and affirm essentially for the reasons set forth by Judge Farrell in his oral opinion. We add only the following.
Judge Farrell’s findings of fact, as to which our scope of review is “extremely narrow,” were fully supported by the evidence adduced at the hearing. State v. De La Paz, 337 N.J. Super. 181, 190 (App. Div.), certif. denied, 168 N.J. 295 (2001). Although a trial judge’s interpretation of the law is not entitled to such deference, ibid., we find that Judge Farrell correctly applied the law with respect to “curtilage,” as outlined in State v. Johnson, 171 N.J. 192, 208-09 (2002), in determining that Santiago did not require a warrant to go onto the back porch of 105 Bank Street.
Santiago had been asked by Hicks to assist her with respect to problems at her home; and had promised to check on her on occasion. He had observed several people go up onto the porch and enter the house through the back door. It was reasonable for Santiago to decide to attempt to speak with Hicks. Once lawfully on the porch, he observed contraband in plain view, after Taylor opened the door, entered, and failed to close it. A warrant is not required when a police officer is: (1) lawfully present in the viewing area; (2) the officer inadvertently discovers the evidence in plain view; and (3) it is “immediately apparent” to the police officer that the “items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.” Johnson, supra, 171 N.J. at 207; see also State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
It was also reasonable for Santiago to seize the drugs at the time because it was extremely unlikely that they would still be there when he returned with a warrant, had he sought one, inasmuch as he observed Stewart and Russell attempting to hide the plastic bag. See State v. Stott, 171 N.J. 343, 358 (2002).
Affirmed.
1 At the same time, there was a motion to suppress a statement given by Stewart. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Miranda issue was not preserved for appeal.
Winning a juvenile waiver hearing; it was too good to be true
STATE OF NEW JERSEY IN THE INTEREST OF A.W.
________________________________
Before Judges Fisher and C.L. Miniman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-2863-08.
Edward J. DeFazio, Hudson County Prosecutor, attorney for appellant State of New Jersey (Stephanie McClure, Assistant Prosecutor, on the brief).
Yvonne Smith Segars, Public Defender, attorney for respondent minor A.W. (John Moehring, Designated Counsel, of counsel and on the brief).
PER CURIAM
The State appeals from the dismissal of a juvenile complaint charging A.W. (the juvenile) with acts that would constitute first-degree robbery and second-degree aggravated assault had they been committed by an adult. The State sought a waiver of Family Part jurisdiction and a referral to the Law Division. At the hearing on the waiver application, the State presented testimony from five investigating officers to establish probable cause to believe that the juvenile was involved in the delinquent acts that had occurred. The juvenile testified at the waiver hearing in opposition to a finding of probable cause. The judge subsequently refused to waive jurisdiction, concluded that the evidence was insufficient to find probable cause, and dismissed the juvenile complaint. We reverse and reinstate the complaint because the evidence was more than sufficient to establish probable cause.
Jersey City Police Officer Frank Connaughton was the first officer to testify. He, along with Officer Erica Vagarra, responded to a report at 3:30 p.m. of a robbery and aggravated assault in front of a church on March 17, 2008, and arrived less than thirty seconds later. An ambulance was already at the scene. There, they were met by Terry,1 a juvenile victim born on July 18, 1990, who stated that she was walking eastbound on Montgomery Street from Brunswick Street when she was approached by three black females, who began to push her. One of the three, Susan, also a juvenile, reached for Terry’s bag and into her jacket pocket, attempting to take Terry’s cell phone. The other two females continued to push Terry and one of the three grabbed and pulled her hair. Terry reported that there was a group of black males, including the juvenile, on the other side of the street near a high school watching the struggle among the females. When a Good Samaritan, Hippolito Mendoza, an adult, intervened in the scuffle, the group of black males crossed the street and the juvenile picked up Mendoza and slammed him onto the sidewalk. Terry reported that she could positively identify Susan.
Connaughton spoke with Marisol Cruz, an adult witness, who stated that she saw three black females pushing Terry and then saw several black males, one of whom slammed Mendoza onto the sidewalk. He also spoke with George Vega, Jr., another adult witness, who stated that he saw the juvenile physically pick Mendoza up and slam him to the ground. Then, the ambulance personnel, who were treating Mendoza for an abrasion to his left eyelid with bruises and swelling and a left-wrist abrasion, transported him to the Jersey City Medical Center.
Connaughton testified to the descriptions of the juvenile, Susan, and the other two females, contained in his report. The juvenile was described as “[b]lack male, dark skinned, five foot eleven, a hundred and twenty five pounds, thi[c]k build with dark brown short afro wearing a black tee shirt, black hooded zipper sweatshirt, blue jeans and black sneakers.” The description of the male juvenile was given to central command and surrounding units in an attempt to locate him. At 3:40 p.m. Officer Brian Gajewski and Officer L. Santiago reported that they observed the juvenile in the courtyard of a public housing complex and took him into custody. He was returned to the scene, where he was positively identified by Cruz and Vega.
At 3:56 p.m. Terry and Cruz were transported to the juvenile bureau by Officers Joe Manna and C. Kaye and Vega was transported by Sergeant Scerbo. At that time, juvenile detectives Donnie McGhee and Marjorie Jordan took over the investigation and obtained statements from the witnesses.
In the meantime, the Bureau of Criminal Investigation (BCI) photographed the roped-off scene, including the pool of blood on the sidewalk. Connaughton and Vagarra arrived at the hospital to talk with Mendoza. BCI also went to the hospital to photograph Mendoza’s injuries, who told them he could not identify the person who injured him because the person grabbed him from behind and slammed him face first to the pavement. Mendoza was seen by Dr. Wasserman, who told Connaughton that Mendoza had a facial-bone fracture, a possible broken left wrist in addition to the injuries to his left eye, and that X-rays and a CT-scan would be done. While there, they spoke with the victim’s daughter, Nancy, and her friend, who knew Susan’s name based on information they obtained from another unidentified juvenile witness. Susan was arrested later that day.
Gajewski testified that he and Santiago were dispatched to the scene at 3:30 p.m. on a report of a robbery and assault when he received a dispatch describing the juvenile who assaulted Mendoza and was told that he was walking with three other black males on South Brunswick Street heading towards a public housing complex. They began to canvass the area and in a couple of minutes saw a group of four black males walking into the housing complex about four blocks from the scene of the robbery and assault. About eight to ten feet in front of them were two females walking into the housing complex, one of whom, Susan, was known to Gajewski. One of the males fit the description given by the dispatch.
The officers exited their vehicle and began to approach the four males from the rear. One of the males turned and looked at them, said something to the others, and three of the four males ran off through the courtyard. The three who ran did not fit the description of the juvenile as they were about eighteen inches shorter. Gajewski stopped the fourth male, later identified as the juvenile perpetrator, who had turned first one way and then the other as though he did not know where to go. The juvenile stated that he had nothing to do with it, he wanted to “get things right,” and agreed to respond back to the scene. Gajewski did not receive a description of a female perpetrator until afterwards. At the scene around 3:35 p.m., the juvenile was positively identified by Vega, who said he was 100 percent sure of the identification. The juvenile was arrested, transported to the juvenile bureau, charged with robbery and aggravated assault, and remanded to the Hudson County youth house.
The next witness to testify was Detective Alex Bermudez, who investigated the delinquent acts, seeking more victims and witnesses. He took a statement from Mendoza, who told Bermudez that he was in the immediate area to return his youngest daughter from school to their home. Mendoza saw a girl, later identified as Susan, drag a Philippine girl by the hair and then another girl pushed Susan away. Then he saw Terry running towards him, but Susan jumped her and tried to get her cell phone. Mendoza got out of his car and pushed Susan away. At that point, he saw “a guy” come from across the street, he turned his back and then he was grabbed and slammed to the sidewalk.
Mendoza related to Bermudez that his daughter Nancy was at the hospital and that she told him that she knew the girl who was responsible and that she went to school with another of his daughters. His daughter knew the girl by name and reviewed a series of photographs in his presence and then identified Susan. He related that this was the girl he saw drag the Philippine girl by the hair and assault and try to rob Terry. Bermudez did not ask Mendoza to describe the juvenile that crossed the street because he was investigating the involvement of Susan and the juvenile had already been arrested. As a result, Mendoza’s statement does not connect the juvenile to the assault on Mendoza.
Bermudez also interviewed Terry and Nancy, Mendoza’s daughter. Nancy told him that she was in her house, heard a commotion outside, and went downstairs to see what was happening. She saw “someone getting stomped” and saw Susan hitting him. As Nancy ran away, she saw Susan running away with a couple of girls. She had seen Susan earlier by the light rail with her cousin. Once the group disbursed, she saw that the victim was her father and she stayed with him until the ambulance arrived. She did not mention in her statement whether any males were present in the group. She later went to the hospital and told the detectives a couple of names, including Susan’s, and said that she was going to the open gym at a local school to try to find her. Nancy did so and alerted police who were driving by as to Susan’s identity and they arrested her. Again, because Bermudez was focused on identifying Susan as one of the perpetrators, he did not ask Nancy about the juvenile who had been arrested or any other males at the scene.
Detective McGhee testified that he took a statement from Vega, who indicated that two female juveniles were fighting and a man intervened in the fight. He stated that the male juvenile picked up the man and body slammed him. They all ran in different directions afterwards. Vega could not describe the female juveniles, but said that the male juvenile was not involved with the fight among the females, only with the man who intervened in the fight. He described the male juvenile as a “black male, five eleven, slim build, dark complexion.” Vega stated the male juvenile had been watching the fight. McGhee affirmed that Vega had identified the male juvenile at the scene and he again identified him at the juvenile bureau.
The last witness to testify on behalf of the State was Detective Jordan, who took a statement from Cruz. Cruz said that she was on Montgomery Street waiting for a bus when she saw a group of girls about to fight another girl. Cruz tried unsuccessfully to save Terry from the situation by pretending to be her aunt, but the girls began to push and curse at her. She then saw one of the girls punch Terry in the face while another pulled her hair. Cruz again attempted to break up the fight. Mendoza then jumped out of his car and helped her intervene, but a male in the crowd picked Mendoza up and threw him on the ground, after which “they” started to punch him. Jordan did not ask Cruz who “they” were. When Cruz tried to help Mendoza, he was unresponsive. Cruz positively identified the juvenile as the male who threw Mendoza on his head, both at the scene and at the juvenile bureau.
The last witness to testify was the juvenile, who admitted that he was on the corner across from the high school where he and his friend John’s brother, Joseph, were waiting for John. He noticed a big crowd of ten to fifteen boys and girls across the street. He started walking to see what was happening. Then he noticed Mendoza get out of his car and push Susan and he heard them exchange words. That made the juvenile mad; he crossed the street alone and told Mendoza to leave Susan alone because she was a little girl. He testified that they had been arguing about two minutes and it was pretty heated. Then he pushed Mendoza, who pushed him back. He testified they had no other physical contact. He did not pick him up and slam him onto the sidewalk. He did not trip him, kick him, or punch him. He simply walked away, crossed the street, left the scene with Joseph and walked home. Mendoza had not been injured at that point, but the juvenile did observe the crowd surround Mendoza and start hitting him.
The juvenile claimed that when he was arrested five minutes later, his friend Joseph was arrested as well. He and Joseph had each been wearing their school uniforms: black shirts and khaki pants. However, the juvenile testified that he had taken his black shirt off and put on a white shirt. He was also wearing a black hooded sweatshirt and was carrying the black shirt over his left shoulder. No one else was with him when he and Joseph were arrested. When they were both returned to the scene, Mendoza and Susan were gone. He never saw Susan after he first left the scene; she was not walking in front of him. He did see Vega at the scene while he was sitting in the police car. The juvenile testified that he knew Nancy from high school, but he did not see her at the scene and never spoke to her after this incident.
The juvenile’s attorney argued that the State’s motion for a waiver should be denied in light of the state of the evidence respecting the juvenile’s involvement in the robbery and assault even though all the State had to prove was probable cause that the juvenile had some participation in the occurrence of the alleged delinquent acts. Specifically, he argued that there was no evidence connecting the juvenile to the robbery, although he acknowledged that the aggravated assault was the bigger problem in terms of waiver. He asserted that no one could connect his client to the ultimate injuries and that there were multiple assailants. He also urged that the juvenile was acting as a Good Samaritan when he went to the assistance of Susan and sought to have the waiver application denied so that the matter could be resolved at the time of trial in the Family Part.
The State emphasized that the juvenile admitted that he was at the scene and involved in an altercation with Mendoza, and that Vega and Cruz corroborated this testimony and had immediately identified the juvenile without hesitation. It argued that probable cause had been established and the motion should be granted.
The judge concluded that Mendoza’s injuries could not have been caused just by the “body slamming,” although she had no expert testimony to support this conclusion, and observed that his own daughter said that a group of people were stomping him. The judge found that Mendoza’s injuries were consistent with someone being punched and kicked in the body and face while on the ground. Nevertheless, she found that a second-degree crime had been committed and that the juvenile participated in it.
However, the judge then noted that the testimony of the police officers was all hearsay except for their observations of Mendoza and the investigation seemed to her “as if they were just simply ready to wrap it up as quickly as possible.” Nancy did not identify the juvenile even though they knew each other, yet she identified Susan. The judge found that when the juvenile was picked up by the police he was not with Susan; they just happened to be going home to the same project. She also observed that when the police approached the group of four males, three ran away but the juvenile remained and answered questions. When the juvenile returned to the scene, he was identified by two people from another race and cross-racial identifications require greater care. She found that the show-up situation was inherently suggestive and he was wearing his school uniform, so he looked like other male students from his school. She noted that the State failed to produce the eyewitnesses at the hearing and subject them to cross-examination, which meant that she had only “bare bone statements.”
The judge stated that she was distrustful of the evidence and had “a lot of issues with some of the factors found applicable by the state” in seeking a waiver, including the juvenile’s nonviolent history. She determined that the juvenile testified credibly that he was there and that he intervened to assist a girl from his neighborhood, who was being assaulted by an older man. She found this conduct consistent with innocence, not guilt. She compared this testimony to the two incomplete hearsay written statements from two cross-racial witnesses and concluded that she did not have a well-grounded suspicion that the juvenile caused second-degree injuries to Mendoza. She also found that the juvenile had not participated in the robbery and there was no probable cause to believe that he did. She thus denied the referral motion and dismissed the complaint. This appeal followed.
The State raises the following issues on appeal:
POINT I – THE COURT ERRED IN DENYING THE STATE’S MOTION AND DISMISSING THE STATE’S CASE AGAINST A.W., BECAUSE PROBABLE CAUSE WAS ESTABLISHED.
POINT II – THE COURT ERRONEOUSLY CONCLUDED THAT PROBABLE CAUSE DID NOT EXIST BECAUSE: (1) THE IDENTIFICATION OF A.W., A BLACK MALE, WAS MADE BY TWO HISPANIC EYEWITNESSES; AND (2) HEARSAY TESTIMONY WAS USED TO ESTABLISH PROBABLE CAUSE. THE COURT’S DECISIONS THEREFORE, TO DENY THE STATE’S MOTION AND DISMISS THE STATE’S CASE MUST BE OVERTURNED.
The juvenile, on the other hand, argues that the denial of the motion should be affirmed because the statement of reasons supporting waiver and referral was not based on a meaningful analysis of the facts. He also asserts that the judge correctly denied the motion because the State failed to establish probable cause to believe that he was involved in the aggravated assault and robbery.
The scope of our review of a judge’s findings of fact is to determine “whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.” State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are “thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.” Johnson, supra, 42 N.J. at 162. On the other hand,
Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. See State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (“A trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[.]”)); see also State v. Brown, 118 N.J. 595, 604 (1990).
[State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).]
We thus review the record to ascertain whether the judge’s findings are supported by substantial, credible evidence in the record and then apply the law to the facts de novo.
The Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -48, governs acts committed by juveniles that would constitute a crime if committed by an adult and provides for their rehabilitation within the juvenile justice system. However, when a juvenile is fourteen years old or older,
[o]n motion of the prosecutor, the court shall, without the consent of the juvenile, waive jurisdiction over a case and refer that case from the Superior Court, Chancery Division, Family Part to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing, that . . . [t]here is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute . . . robbery which would constitute a crime of the first degree . . . [or] aggravated assault which would constitute a crime of the second degree . . . .2
[N.J.S.A. 2A:4A-26a.]
The Legislature has vested primary discretion in local prosecutors to determine whether to seek a referral to adult court. State v. J.M., 182 N.J. 402, 412 (2005) (“The intent was to increase prosecutorial discretion and to make waiver more likely in the case of . . . juveniles” committing a Chart 1 offense.).
Except for Chart 1 offenses, a juvenile has an opportunity to “show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver, [in which case] waiver shall not be granted.” N.J.S.A. 2A:4A-26e. Because a juvenile sixteen or more years old has no such opportunity with respect to a Chart 1 offense, local prosecutors are required to follow the Attorney General’s guidelines in exercising their discretion to seek a waiver. Attorney General’s Juvenile Waiver Guidelines (Mar. 14, 2000) (“Guidelines“); R.C., supra, 351 N.J. Super. at 255 n.3.
The Guidelines contain both substantive standards a prosecutor must apply in determining whether to move for waiver to adult court of a charge of a Chart 1 offense against a juvenile over sixteen and procedural requirements a prosecutor must follow in making this determination. The substantive standards are a list of “factors” a prosecutor must consider in determining whether to file such a waiver motion: (1) nature of the offense; (2) deterrence; (3) effect on co-defendants; (4) maximum sentence and length of time served; (5) prior record; (6) trial considerations; and (7) victim’s input.
[R.C., supra, 351 N.J. Super. at 255.]
The prosecutor must prepare a written statement of reasons for waiver identifying the Guidelines factors supporting waiver. Ibid. The statement of reasons must be submitted to the juvenile and to the Family Part. Id. at 260. The decision to seek waiver is subject to judicial review. Id. at 258 (“[A] trial court’s review of a prosecutor’s statement of reasons to waive a juvenile complaint to adult court may be made summarily based on the court’s review of the written statement and other pertinent documentary materials.”). The scope of this judicial review is limited to “a patent and gross abuse of discretion,” similar to prosecutorial decisions to deny pretrial intervention (PTI). Id. at 259-60 (internal quotation omitted).
At a waiver hearing, “when a sixteen-year old or above is charged with a Chart 1 offense, the prosecutor need only establish probable cause for the court to waive the juvenile to adult court.” J.M., supra, 182 N.J. at 412. Once the State establishes the juvenile’s age and probable cause to believe that he committed one of the enumerated acts, “no additional showing is required in order for waiver to occur.” R.G.D., supra, 108 N.J. at 11-12 (also noting N.J.S.A. 2A:4A-26 creates a “presumption” of waiver for juveniles committing one of the enumerated offenses); State in re A.B., 214 N.J. Super. 558, 566 (App. Div. 1987) (presumption of waiver for Chart 1 crimes), aff’d, 109 N.J. 195 (1988).
Guilt or innocence is not at issue in a waiver hearing. State v. Lueder, 74 N.J. 62, 77 (1977). Rather, we have explained the proofs required in a waiver hearing as follows:
The occasion was not one for the trial judge to weigh the evidence and determine where the truth of the matter lay. As we said in State [in re] B.T., 145 N.J. Super. 268, 273 (App. Div. 1976) [(citations omitted)], certif. denied, 73 N.J. 49 (1977), the hearing
is a preliminary proceeding to determine the propriety of transfer under the statutory criteria. The portion of the hearing relating to probable cause can be analogized to the probable cause hearing prior to indictment or the determination of a grand jury to indict. In either of these instances, rules of evidence and constitutional guarantees involving the trial process are inappropriate. Since the result of a preliminary judicial proceeding as involved herein does not adjudicate the guilt of the accused, the type of permissible evidential material used by the court in reaching its conclusion is not circumscribed by the limited evidential rules applied at trial.
[State in re A.T., 245 N.J. Super. 224, 227-28 (App. Div. 1991).]
Probable cause is a “well-grounded suspicion or belief” that an offense occurred and the juvenile “[was] party to it.” State in re A.J., 232 N.J. Super. 274, 286 (App. Div. 1989) (internal quotations omitted); State in re DeSimone, 60 N.J. 319, 322 (1972); State in re B.G., 247 N.J. Super. 403, 409 (App. Div. 1991); A.T., supra, 245 N.J. Super. at 227. It may be established through hearsay alone because the hearing “does not have the finality of trial.” State in re J.L.W., 236 N.J. Super. 336, 344 (App. Div. 1989), certif. denied, 126 N.J. 387 (1991). It “need not be based solely on evidence admissible in the courtroom.” A.J., supra, 232 N.J. Super. at 286. The general definition of probable cause is applied “when considering whether probable cause has been established in a referral hearing.” J.L.W., supra, 236 N.J. Super. at 347.
Because the juvenile here was eighteen years old at the time of the waiver hearing, the State was only required to proffer its written statement of reasons for waiver and prove that probable cause existed to believe that the juvenile had committed the alleged delinquent act or acts. As to the former, the prosecutor explained in his written statement of reasons that Mendoza was a Good Samaritan who came to the aid of Terry when the juvenile crossed the street and slammed him onto the sidewalk, causing him to lose consciousness and suffer a facial fracture, broken wrist, and other injuries. The prosecutor described the nature and circumstances of the act, the juvenile’s role therein, and the potential and actual seriousness of harm to the victim. The prosecutor also relied on the need to deter the juvenile and others from violating the law. He identified the need for a lengthier term of incarceration under the criminal code and considered the juvenile’s three prior offenses, including resisting arrest. Finally, the prosecutor found applicable the likelihood of conviction and the potential need for a grand-jury investigation and considered the position of the victim regarding the waiver decision.
The juvenile contends that the statement of reasons was insufficient and should have been denied on that ground alone. He argues by analogy to PTI denials, which are subject to the same scope of review, that the statement did “no more than parrot in purely conclusory terms the language of the Guidelines” and is, thus, “no statement at all,” citing State v. Sutton, 80 N.J. 110, 117 (1979).
Although the statement of reasons in support of waiver could and should have been prepared in more detail, as Sutton requires of PTI denials, particularly with respect to the position of Mendoza, this issue is being raised for the first time on appeal.
It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available “unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.”
[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]
This partially insufficient statement of reasons does not concern the Family Part’s jurisdiction nor does it concern a matter of great public importance. We therefore decline to address the issue. Ibid. Nevertheless, we note in passing that little elaboration was required with respect to deterrence and a comparison of the sentences that could be imposed under the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9, with those imposed under the Code of Juvenile Justice can readily be made by any lawyer or judge. Also, the juvenile’s three prior offenses, including a drug offense and a resisting-arrest offense, were known to the judge at the time of the hearing.
Turning to the issue of probable cause, the judge lost sight of the legal standard to be applied when she began making credibility determinations, weighing the evidence, and rejecting hearsay that alone was sufficient to establish probable cause. J.L.W., supra, 236 N.J. Super. at 344. Contrary to the judge’s conclusions, it is clear that the evidence gives rise to a “well-grounded suspicion or belief” that an offense occurred and that the juvenile “[was] party to it.” A.J., supra, 232 N.J. Super. at 286 (internal quotations omitted). Certainly, there is probable cause to believe that an aggravated assault on Mendoza took place; there is no suggestion to the contrary. There is also probable cause to believe that the juvenile “[was] party to it.” Ibid. (internal quotations omitted). The juvenile admitted to being at the scene and having a verbal and physical altercation with Mendoza. He was immediately and positively identified by Vega and Cruz as the juvenile who slammed Mendoza down on the sidewalk, even though the juvenile denied it. No more was required to establish probable cause and it was error to reject the hearsay evidence and conclude otherwise.
We find no other basis in the record for denying the motion for waiver and referral. Accordingly, we reverse and remand the matter to the Law Division for presentation of the matter to a grand jury and for subsequent proceedings. This remand is without prejudice to the juvenile’s right to move to dismiss the indictment if one is returned.
Reversed and remanded.
1 All of the juveniles involved in the events of March 17, 2008, have been given fictitious first names.
2 Additional offenses supporting waiver of Family Part jurisdiction include homicide other than death by auto, carjacking, aggravated sexual assault, sexual assault, kidnapping, aggravated arson, strict-liability drug-induced death, certain other offenses committed while a juvenile is in possession of a firearm, and certain serious drug offenses. See N.J.S.A. 2A:4A-26a(2). These are called “Chart 1” offenses. State in re R.C., 351 N.J. Super. 248, 249-50 (App. Div. 2002); see also State v. R.G.D., 108 N.J. 1, 11 (1987) (“Juveniles charged with the crimes of murder, robbery, sexual assault and similar serious offenses set forth in N.J.S.A. 2A:4A-26 are primary candidates for waiver to the adult courts.”).
Criminal Division cannot stop you from applying to PTI
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT DWAYNE GREEN,
Defendant-Appellant.
___________________________
Before Judges Lisa, Reisner and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-01-0015.
Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel P. McNerney, Assistant Deputy Public Defender, of counsel and on the brief).
Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
REISNER, J.A.D.
Defendant Robert Dwayne Green pled guilty to third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5b(3), and was sentenced to two years probation. He appeals from the October 23, 2007 final judgment of conviction, contending that he was improperly excluded from the pre-trial intervention program (PTI). See R. 3:28(g).
Following his indictment for three related third-degree CDS offenses, based on his alleged sale of $150 worth of cocaine to an undercover detective, defendant attempted to apply to the Monmouth County Vicinage Criminal Division for admission to PTI. However, he received a Notice of PTI Ineligibility dated January 23, 2007 from the Criminal Division Manager. The notice advised that his case had “been pre-screened by the Monmouth County Criminal Division” and that defendant would not be permitted to apply for PTI without the prosecutor’s written consent “in accordance with the guidelines for PTI outlined in” Rule 3:28.
The pre-printed notice checked off as the reasons for rejection: that defendant was charged with selling Schedule II narcotic drugs, an offense carrying a presumption of imprisonment; that the prosecutor had not joined in his application; and that defendant had not shown “compelling reasons justifying [his] admission and establishing that a decision against enrollment would be arbitrary and unreasonable” (citing Rule 3:28, Guidelines 2, 3i and 3e). However, it appears from the record that the Criminal Division never actually permitted defendant to apply and therefore never considered the possible merits of such an application.
Thereafter, defendant corresponded with the prosecutor’s office, providing significant evidence of his rehabilitation during the period between the October 2005 incident on which the charges were based, and the January 2007 indictment. Stating that there was nothing “extraordinary” or “idiosyncratic” about defendant’s situation, the prosecutor declined to join in a PTI application. Thereafter, it appears undisputed that the Criminal Division never actually considered an application from defendant, but instead precluded him from applying at all without the prosecutor’s consent. On July 12, 2007, defendant filed a “Notice of Appeal from Pretrial Intervention (PTI) Rejection.”
From the transcript of the oral argument of defendant’s eventual PTI appeal, we discern that the Criminal Division’s practice had been to preclude a defendant charged with certain crimes from applying for PTI without a letter of agreement from the prosecutor’s office. While the judge indicated on the record that the system had been revised, because it allowed the prosecutor to, in essence, “short-circuit” a defendant’s right to even apply for PTI, it does not appear that Green had the benefit of any such change.
In response to defense counsel’s inquiry, the judge responded that defendant was “arguing for the ability to apply” to PTI. The judge confirmed that “if I grant the ability to apply, I’m not putting the defendant into the PTI Program. I’m then allowing the director [of the Criminal Division] to do a full evaluation” and make a recommendation. While acknowledging that defendant had not even been allowed to apply for PTI, the judge nonetheless rejected the appeal on the grounds that the prosecutor’s refusal to join in the application was not a gross and patent abuse of discretion. We conclude this was error.
We do not reach defendant’s appellate contentions concerning whether he should have been admitted to PTI. Instead, we reverse and remand this matter on procedural grounds, because we conclude that defendant was mistakenly deprived of the opportunity to apply for PTI.
It is clear from Rule 3:28 that the Criminal Division must at least allow a defendant to submit an application to PTI, and must evaluate the application:
Application for pretrial intervention shall be made at the earliest possible opportunity, including before indictment, but in any event no later than twenty-eight days after indictment. The criminal division manager shall complete the evaluation and make a recommendation within twenty-five days of the filing of the application. The prosecutor shall complete a review of the application and inform the court and defendant within fourteen days of the receipt of the criminal division manager’s recommendation.
[R. 3:28(h).]
See State v. Brooks, 175 N.J. 215, 223-24 (2002).
The PTI Guidelines explicitly provide that all defendants must be permitted to apply, and the Criminal Division Manager must consider the merits of the application:
Any defendant accused of crime shall be eligible for admission into a PTI program. When the application indicates factors which would ordinarily lead to exclusion under the guidelines . . . the applicant nevertheless shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the defendant’s amenability to the rehabilitative process, showing compelling reasons justifying the defendant’s admission, and establishing that a decision against enrollment would be arbitrary and unreasonable.
[R. 3:28, Guideline 2 (emphasis added).]
Guideline 3(i) does provide that defendants charged with the sale of Schedule I or II narcotic drugs “should ordinarily not be considered for enrollment” in PTI unless the prosecutor joins in the application. However, this does not mean that such defendants can be denied the opportunity to apply in the first place.
Guideline 3(i) further provides that even “in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant’s amenability to the rehabilitation process . . .” Ibid. (emphasis added). See also Pressler, Current N.J. Court Rules, Official Comment on Guideline 3(i) to R. 3:28 (2009). While the prosecutor has enormous influence over a defendant’s admission to PTI, the Criminal Division Manager cannot short-circuit a defendant’s statutory right to apply for PTI, even if the application is unlikely to receive a favorable recommendation.1
We gather from the record that the Monmouth Criminal Division changed its procedures to recognize these principles, but this defendant did not have the benefit of the new procedures. Because defendant was not given the opportunity to make his application to the Criminal Division Manager, we reverse the order on appeal and remand to permit defendant to submit his PTI application to the Criminal Division Manager, who shall consider the application on its merits.
Reversed and remanded.
1 As illustrated in State v. Negran, 178 N.J. 73, 78-79 (2003), there will be times when the Criminal Division Manager supports a defendant’s admission to PTI, while the prosecutor opposes it; the prosecutor’s views do not always prevail. Id. at 83-85.
Robert Higbee – Trial on May 12th
A few quick thoughts on the trial for the 12th. I have to agree with the commentators who have questioned why Robert Higbee’s attorney, William Subin, got into it with Michael Taylor, a young witness and victim. Once again, I note that it is easy for me to judge another attorney’s tactics and performance from the comfort of my couch.
That being said, the first thing that continues to jump out at me is Mr. Subin’s continued use of open-ended questions. I think he has been burned several times. You have to keep some ammo for summation. Make your point and move on. Any young attorneys or law school students reading this should really look into Pozner & Dodd’s cross examination books and materials. I see no chapters here and no real focus. My favorite question, “what is the difference between a muskrat and a opossum?”. Huh?
I can’t hammer this point home enough. You never want to let the witness explain anything. Ask a question and move on. You never want to end with, So then, how could you have… In fact, the witness should not know where you are going. For example, one issue in the case is how dark the area in the intersection was. You want to bring up facts. No street light. Time of night. Lack of other lights. Desolate road. Etc. You don’t want to follow that up with “so, then how could you have seen this or that”. You bring up all of those points and establish that it was very dark. You won, move on.
Another issue is that you do not have to fight with every witness. I was in a homicide case last year. More than half of the witnesses were not hostile. As a result, they were very comfortable with me and it was a smooth, easy cross. With two witnesses, DNA and ballistics, the witnesses were so cool with me, that I made it a point to shake their hands (in front of the jury) as they left the stand.
In the Higbee trial, Mr. Subin seemed to spar with Michael Young. There is really no reason for that. While you want to defend your client with everything you have, you need to balance that against turning the jury against you as that will not help your client.
I also would like to know why the Prosecutor focuses on questions such as where do you live, with who, where do you work, etc, etc. Who cares? If you really want to inflict some damage, focus on the real evidence. Otherwise, the jury will forget most of what was said. Of course, all of this is rhetorical as most prosecutors have the exact same pattern no matter where you go. They are taught this way of questioning but I’ve never heard a real reason behind it. If the witness is nervous, a few easy questions is ok but not many.
Where’s the bargain?
As I’m sitting in Domestic Violence court fighting to get my client’s guns back, I’m watching a large group of people enter pleas to violating a restraining order. Funny thing is, the plea arrangement is the exact same thing they would get if they went to trial and lost. In other words, they are giving up their rights and the chance to play with the house’s money since they have nothing to lose. Why would anyone do that?
The answer is easy, belly-up attorneys. Too many attorneys see this profession as an easy way to make a little money instead of a profession where we are defending people; no, more like fighting for people. Whenever I get a deal like that, I ask the prosecutor, “so if my client went to trial and lost, he would get the same thing?”. The reply is always yes. I then say “why would my client pay me to get the same thing that he could get on his own?”. There is never a good answer to that question.
Of course, they only make that offer because many attorneys advise their clients to take it. Even if you have no shot, why not go to trial, have some fun and make everyone work for it. And hey, you never know who will not show up, forget something, make a mistake, etc. If your attorney is not fighting for you, it is time for a sit down with him or her or possibly time to get a new attorney before its too late.
Robert Higbee trial – May 11th, a few hours of Charlie Brown’s teacher
I’m not sure if it is the cameras or if these lawyers, like many others, like to hear themselves talk. I am of the Pozner and Dodd school of cross examination. So when I evaluate a cross examination, I think about what they would do.
I was rather surprised at Higbee’s attorney’s use of open-ended questions and compound questions that sometimes confused the witness on the stand. I also thought that his cross was a bit out of order as it took him a while to get into some important aspects. By that time, the jury may be asleep.
I think the Prosecutor did an even worse job on direct. I really don’t see where he was going except on and on with the first witness of the day (the first State Trooper on the scene). Again, after a few minutes of that, all the jury hears is Charlie Brown’s teacher.
You have only a few minutes to get the jury’s attention. This case is fairly simple. Was he reckless or was this an accident? There are only so many issues that need to be addressed. Thus, there is no reason for the first witness to be on the stand for several hours. At this rate, this trial will be going on forever. Asking less questions may yield better results.
I guess everyone has their own style, but mine is a quick, hard hitting cross examination that is very surgical. I also try to use inflection in my voice instead of a slow, monotone voice. I believe this helps the jury pay attention in numerous ways. After all, when we speak to each other, we have a lot of inflection in our voices.
I do want to point out that there is no one way to win a case. However, I do think that there is only one way to really cross a witness. Of course, I’ve never had a case thatwas featured live on national tv, so who knows how I would react under this situation huh? I’d like to think it would be no different. Emphasis on “like to think”.
How not to have a witness exonerate you
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEITH T. MANSFIELD,
Defendant-Appellant.
___________________________________
PER CURIAM
Defendant Keith T. Mansfield appeals from an order dated July 2, 2008, denying his PCR petition as untimely under Rule 3:22-12(a). We reverse and remand for further proceedings.
Defendant pled guilty on July 10, 2000 to third-degree endangering the welfare of a child. N.J.S.A. 2C:24-4a. He was sentenced to probation on September 15, 2000. He filed his PCR on May 22, 2008.
The petition was based on a March 20, 2008 certification, purportedly from the victim, now an adult, in which she attested that defendant never in fact molested her. Instead, she claimed that her mother fabricated the story of the alleged molestation as part of a custody dispute with her father, defendant’s employer. The PCR was denied without oral argument, and the PCR judge issued a very brief letter opinion dated July 2, 2008, noting only that the application was untimely.
On this appeal, defendant contends that he was unfairly denied a hearing on his PCR and he should be permitted to withdraw his plea based on evidence of his actual innocence. The State vigorously opposes the appeal, arguing that defendant did not submit a certification to the PCR judge attesting to his innocence, and that the victim’s certification is suspect. The State notes that the purported certification is not in legally proper form; it does not indicate where it was signed; and the signature bears no resemblance to the victim’s signature on several statements which she signed in 1997 when she made the original accusation.
Based on our review of the record, the State certainly has a colorable argument. The signatures on the documents do appear to be different. The victim’s statement is not in proper form either as an affidavit or a certification. “Knowledge and belief” is not the correct language for a certification; there is no indication as to where the witness signed the document; and the document is not properly notarized. See R. 1:4-4. Nonetheless, we cannot conclude that this application, concerning as it does a claim of innocence, should have been rejected summarily on timeliness grounds, without considering the merits or even giving defense counsel an opportunity to argue the application.
As the Supreme Court recently clarified in State v. Slater, 198 N.J. 145, 157-58 (2009), one of the significant factors to be considered in a motion to withdraw a guilty plea is whether defendant makes a claim of innocence:
[T]rial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.
[Ibid. (emphasis added).]
Moreover, “[a] bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim.” Id. at 158. In evaluating the claim of innocence, the court may consider the evidence that was available to the prosecutor at the time the plea was entered. Ibid. And “efforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons.” Id. at 160.
We agree that the application was deficient because defendant did not submit a certification attesting to his innocence and explaining why he nonetheless entered a guilty plea. Moreover, the victim’s statement was not in proper form. However, if the court had allowed oral argument, defense counsel might have sought an opportunity to supplement the application to address these issues. In the interests of justice, we reverse the denial on timeliness grounds and remand this matter to the trial court for further proceedings.
O n remand, defendant must be given an opportunity to file a certification attesting to his innocence and explaining the reasons why he entered his guilty plea. He must also have an opportunity to submit a further statement from the victim in legally proper form. If he satisfies these requirements, the court should hold a testimonial hearing which shall include, at a minimum, testimony from the victim.
Reversed and remanded.
Tonacchio Law LC 