Author Archives: Tonacchio Law, LLC
3 arrested for allegedly trying to sell pot to undercover cop
Nicholas F. Monteaperto of New Brunswick, Jason Cable of Somerset, and Earl Bowers of Somerset were arrested in Hackensack, New Jersey while attempting to allegedly distribute two pounds of suspected marijuana to an undercover detective for $13,000.00. How three people can all attempt to sell the same two pounds of pot is unknown.
This was a result of a joint investigation conducted by the Hackensack Police Department and members of the Bergen County Prosecutor’s Office Narcotic Task Force. It was probably going on for a while, but these guys don’t seem like your average dealers. Normally, police make a couple actual buys. To bust them at the first buy makes me think that the police didn’t expect them to sell again.
Story is here.
Prosecutor can mention warrant at trial
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CURTIS O. HARRELL, Jr.,
Defendant-Appellant.
_______________________________
Submitted January 5, 2009 – Decided
Before Judges R. B. Coleman, Sabatino and Simonelli.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-03-0197.
Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).
Anne Milgram, Attorney General, attorney for respondent (Robert E. Bonpietro, Deputy Attorney General, of counsel and on the brief; Natalie A. Schmid Drummond, Deputy Attorney General, on the brief).
PER CURIAM
A grand jury indicted defendant for first-degree possession of a controlled dangerous substance (CDS), heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count one); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2a (count four); and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1.
Following the denial of defendant’s motion to suppress, he was tried by a jury and convicted on counts one through four and on the lesser offense on count five of disorderly persons obstructing the administration of law. At sentencing, the trial judge granted the State’s motion for a mandatory extended-term sentence and imposed a fifteen-year term of imprisonment with a five-year period of parole ineligibility on count one and a concurrent five-year term of imprisonment with a three-year period of parole ineligibility on count two. The judge merged counts four and five into count three and imposed a concurrent five-year term of imprisonment with a two-and-one-half-year period of parole ineligibility. The judge also imposed the appropriate penalties and assessment and suspended defendant’s driver’s license for two years.
On appeal, defendant raises the following contentions:
Point 1
The trial court erred in denying defendant’s motion to suppress.
A. Under at least our state constitution, defendant was “seized” once Officers Regan and Reiner began pursuing and approaching him on foot from two different directions and Reiner appeared in defendant’s path.
B. Since defendant was “seized” before he tossed the narcotics on the ground, the police actions in pursuing defendant before this time had to be justified by reasonable suspicion of criminal activity. They were not.
C. “Abandonment” cannot support admission of the discarded narcotics because defendant discarded them in response to the unlawful police pursuit.
D. Reversal and suppression furthers the protections afforded under our state constitution.
Point 2
References to defendant’s “parole” and to the granting of a “search warrant by the Superior Court” were prejudicial and infringed defendant’s right to a fair trial (plain error).
Point 3
Defendant’s sentence is excessive.
Except to remand for correction of defendant’s sentence to merge the sentencing on counts one and two, we affirm.
The following facts are summarized from the record. At approximately 11:46 p.m. on February 12, 2004, Officers Brian Regan and Mark Reiner, experienced narcotics investigators from the Franklin Township Police Department, were patrolling in uniform in a marked car in a high-crime area known for daily narcotic activity. Prior to their shift, the officers had been advised of a series of purse snatchings in the area.
As the officers entered a well-lit parking lot, they observed a male, later identified as defendant, emerge from a parked Acura. Defendant saw the officers and, according to Reiner, began looking “in all directions, much more than what the average person walking into an apartment complex would do.” While walking away, defendant constantly looked back at the officers. Reiner testified that defendant then stepped behind a building and
[peeked] around the corner several times to see if, what we were doing, whether we were standing there, whether we got out of the car. But he continuously had looked around the corner, [peeked] back around so we couldn’t see him, and then he [peeked back out again to see if we were still there, and went back to the corner.
Defendant’s behavior aroused the officer’s suspicion that he was engaged in criminal activity. They decided to investigate further. They drove from the parking lot, continuing to observe defendant peeking around the corner of the building. Regan then parked the patrol car out of defendant’s sight. The officers then exited the car and walked back toward the area where they last saw defendant. The officers saw defendant emerge from behind the building and continue walking. Reiner stepped from behind another building and faced defendant. When defendant saw Reiner, he made what Reiner described as an “abrupt” “90-degree” turn, accelerated his pace, and quickly walked away. Unaware that Regan was approaching from behind, defendant walked between a parked van and car, dropped a package to the ground, and briskly walked away. Regan, who had observed this activity, immediately knew that the package contained decks of heroin.
Reiner then told defendant to stop and asked to speak to him. Defendant did not comply and began fumbling inside his jacket pockets. Because of known gun activity in the area, Reiner thought that defendant may have a gun. He became concerned for his safety and ordered defendant several times to take his hands out of his pockets and to keep them where they could be seen. Defendant ignored these commands, threw a set of keys to the ground, and ran.
Defendant then saw Regan approaching him from behind. Regan ordered defendant to stop and to keep his hands where they could be seen. Defendant did not comply and continued running. The officers pursued defendant, ordering him numerous times to stop. Defendant was eventually apprehended after a foot chase. He violently resisted arrest.
Regan immediately returned to the area near the van and recovered the package that defendant had dropped, which contained 500 wax folds of heroin. He also recovered the keys, which belonged to the Acura from which the officers saw defendant emerge. The Acura, which defendant did not own, was transported to police headquarters after a trained police dog reacted to narcotics within the vehicle. A search of the car, conducted pursuant to a search warrant, revealed 1,352 wax folds of heroin, two parking receipts from Robert Wood Johnson Hospital where defendant worked, and two photographs of defendant’s son.
Defendant challenged the seizure of the drugs. The trial judge found the seizure lawful because defendant had abandoned the package and had not been seized at that time he dropped it.
In reviewing a motion to suppress, we “must uphold the factual findings underlying the trial court’s decision so long as those findings are ‘supported by sufficient credible evidence in the record.'” State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We “‘should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the ‘feel’ of the case, which a reviewing court cannot enjoy.'” Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We should not change the lower court’s findings simply because we “might have reached a different conclusion were [we] the trial tribunal” or because “the trial court decided all evidence or inference conflicts in favor of one side[.]” Johnson, supra, 42 N.J. at 162. Rather, we should only modify a trial court’s findings if they are so clearly mistaken and “so plainly unwarranted that the interests of justice demand intervention and correction[.]” Ibid. In that instance, “[we] should appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.” Ibid. Applying these standards, we review defendant’s contentions.
Defendant first contends that he was “seized” before he discarded the narcotics when the officers pursued him on foot and when he saw Reiner approaching him. He also contends that the officers’ actions were unlawful because they lacked reasonable and articulable suspicion of criminal activity to conduct an investigatory stop. Thus, evidence obtained as a result should have been suppressed. We disagree.
Absent any impermissible reason for questioning a defendant, police officers are permitted to make a field inquiry “‘without grounds for suspicion.'” State v. Maryland, 167 N.J. 471, 483 (2001) (quoting State v. Contreras, 326 N.J. Super. 528, 538 (App. Div. 1999)). See also Elders, supra, 192 N.J. at 246. “‘[M]ere field interrogation, without more, by a police officer does not involve ‘detention’ in the constitutional sense so long as the officer does not deny the individual the right to move.’ Without detention by the police, the Fourth Amendment is simply not implicated in such cases.” Maryland, supra, 167 N.J. at 483 (quoting State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973)).
Here, the officers’ conduct never reached the level of a field inquiry, let alone an investigatory stop, before defendant discarded the narcotics. Neither officer had spoken to defendant at that point. Nothing Reiner did could constitute a detention, and defendant was not even aware of Regan’s presence. The fact that Reiner, a police officer in uniform, approached defendant does not “convert the encounter into a seizure requiring some level of objective justification.” Id. at 483 (quoting Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)).
Also, a “defendant is obligated to submit to an investigatory stop, regardless of its constitutionality.” State v. Williams, 192 N.J. 1, 10 (2007). “[A] person has no constitutional right to flee from an investigatory stop ‘even though a judge may later determine the stop was unsupported by reasonable and articulable suspicion.'” Id. at 11 (quoting State v. Crawley, 187 N.J. 440, 458, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006)). “Under New Jersey’s obstruction statute, when a police officer commands a person to stop, . . . that person has no right to take flight or otherwise obstruct the officer in the performance of his duty.” Ibid. (citing Crawley, supra, 187 N.J. at 451, 458-59). Thus, even if defendant’s mere sighting of Reiner constituted a seizure, or even if the officers lacked reasonable and articulable suspicion to conduct an investigatory stop, defendant’s failure to obey the officers’ order to stop negates any constitutional violation.
Further, a defendant has no expectation of privacy in property that he or she has abandoned. State v. Burgos, 185 N.J. Super. 424, 428 (App. Div. 1982). “For purposes of search-and-seizure analysis,” a defendant who abandons property “no longer retain[s] a reasonable expectation of privacy with regard to it at the time of the search.” State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006) (citations omitted). “In the context of the Fourth Amendment a defendant ‘abandons’ property when he voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question[.]” State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981) (citing United States v. Colbert, 474 F. 2d 174, 176 (5th Cir. 1973)), certif. denied, 88 N.J. 497 (1981), aff’d o.b., 89 N.J. 378 (1982); see also Carroll, supra, 386 N.J. Super. at 160; State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999).
We are satisfied that there is sufficient evidence in the record indicating that defendant abandoned the narcotics before the search, and thus, relinquished any expectation of privacy in them. See Carroll, supra, 386 N.J. Super. at 160-61 (finding abandonment of defendant’s vehicle and the plastic bag left in it where defendant, after crashing the vehicle into a parked vehicle, left the vehicle’s doors open and fled); Gibson, supra, 318 N.J. Super. at 5, 11 (finding abandonment of contraband where defendant, after seeing an unmarked police car approaching him, dropped contraband onto a driveway); State v. Hughes, 296 N.J. Super. 291, 296 (App. Div.) (finding abandonment of a container filled with bags of cocaine where defendant, who was riding a bicycle, threw the container against a curb when he noticed police were approaching and continued to bicycle another fifty feet away), certif. denied, 149 N.J. 410 (1997); Farinich, supra, 179 N.J. Super. at 6-7 (finding abandonment of a suitcase where defendant, after being approached by the police in an airport, dropped it and started to flee).
Defendant next contends that he was denied a fair trial by a police officer’s reference to the search warrant for the Acura, and by a defense witness’ reference that defendant was on parole at the time of the incident. Defense counsel did not object to these references, suggesting that counsel did not perceive any prejudice. State v. Bethea, 243 N.J. Super. 280, 285 (App. Div.), certif. denied, 122 N.J. 401 (1990). Further, the failure to object deprived the trial judge of an opportunity to take appropriate remedial action if necessary, such as giving a curative instruction. State v. Douglas, 204 N.J. Super. 265, 274 (App. Div.), certif. denied, 102 N.J. 378 (1985).
Because defense counsel did not object to these references, we are guided by a plain error standard of review. See R. 1:7-2 and R. 2:10-2. See also State v. Macon, 57 N.J. 325, 337 (1971). Under that standard, we “must disregard any error unless it is ‘clearly capable of producing an unjust result.’ Reversal of defendant’s conviction is required only if there was error ‘sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'” State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95 (2004)); State v. Macon, 57 N.J. 325, 333 (1971); R. 2:10-2.
Applying these standards, we discern no error, let alone plain error, caused by either of the references. Contrary to defendant’s argument, there is nothing inherently wrongful about a prosecutor either referring to a properly issued search warrant or eliciting trial testimony about it. State v. Marshall, 148 N.J. 89, 239-40, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. McDonough, 337 N.J. Super. 27, 32-33 (App. Div.), certif. denied, 169 N.J. 605 (2001). “[T]he fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly.” Marshall, supra, 148 N.J. at 240. Thus, as long as the existence of the warrant does not have the capacity to mislead the jury in the particular context of the case, it is not improper to refer to it. Ibid.
Here, the reference to the search warrant did not imply that the State had presented any incriminating evidence to a Superior Court judge when the police obtained the warrant that it did not also present at trial. Also, the fleeting reference to defendant’s parole status did not imply his guilt in this matter. To be sure, the jury heard extensive evidence which would have established probable cause for the search warrant, and there was overwhelming evidence of defendant’s guilt in this case.
We now address defendant’s sentence. Defendant admits that he is eligible for a mandatory extended-term sentence. He contends that his fifteen-year sentence is not supported by adequate findings below, and that the judge failed to make a qualitative assessment of the aggravating and mitigating factors. We disagree.
We review a judge’s sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). When reviewing a judge’s sentencing decision, we “may not substitute [our] judgment for that of the trial court[.]” State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O’Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence when the judge’s determination was “clearly mistaken.” State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence, and decide whether application of the guidelines make a particular sentence clearly unreasonable that it shocks the judicial conscience. Roth, supra, 95 N.J. at 364-65; O’Donnell, supra, 117 N.J. at 215-16.
Here, the mandatory extended-term sentencing range for count one (first-degree possession of a CDS) is ten to twenty years. The judge sentenced defendant within that range. In imposing the sentence, the judge found aggravating factors N.J.S.A. 2C:44-1a(3) (the risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (the extent of defendant’s prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (the need for deterring defendant and others from violating the law). The judge did not find any mitigating factors.
The record indicates that defendant has two prior New Jersey convictions for distribution of CDS, and one in New York for possession of CDS; he possessed more that 1,800 wax folds of heroin for distribution in a school zone; and he fled the police and violently resisted arrest. We are satisfied that the judge’s findings are supported by sufficient evidence in the record and that the fifteen-year sentence is appropriate.
However, based on the applicable statutes and case law, we conclude, and the State agrees, that the judge should have merged count two (third-degree possession of CDS with intent to distribute within 1000 feet of school property) with count one for sentencing. Therefore, we reverse and remand solely so that defendant’s conviction on count two can be merged with his conviction on count one.
Affirmed in part, reversed in part and remanded for correction of defendant’s judgment of conviction consistent with this opinion.
Court upholds stop and strip search
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AL-AMIN MEANS,
Defendant-Appellant.
________________________________________________________________
Before Judges Lisa and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-06-1761 and 06-08-2541.
Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).
Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant was charged with multiple offenses under two Essex County indictments, No. 06-06-1761 and No. 06-08-2541. After his suppression motion pertaining to No. 06-06-1761 was denied, defendant pled guilty to one count in each of the indictments, namely count seven of No. 06-06-1761, third-degree possession of heroin with intent to distribute within 1000 feet of school property on March 24, 2006, N.J.S.A. 2C:35-7, and count six of No. 06-08-2541, third-degree possession of heroin with intent to distribute on January 17, 2006, N.J.S.A. 2C:35-5a(1) and -5b(3). As recommended in the plea agreement, defendant was sentenced under Indictment No. 06-06-1761 to four years imprisonment with a two-year parole disqualifier, and under No. 06-08-2541 to a concurrent four-year prison term.
The sole issue defendant raises on appeal is that the trial court erred in denying his suppression motion under No. 06-06-1761. More specifically, defendant argues:
THE POLICE VIOLATED THE DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS: THE STATE FAILED TO PROVE THAT THE WARRANTLESS SEARCH AND SEIZURE COMPLIED WITH THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION.
A. THE STATE FAILED TO PROVE THAT THE SEIZURE OF THE VEHICLE WAS LAWFUL.
B. THE STATE FAILED TO PROVE THAT THE SEARCH OF THE MOTOR VEHICLE DATABASE AS PART OF A NARCOTICS INVESTIGATION WAS REASONABLE, NOT CAPRICIOUS AND DISCRIMINATORY.
C. THE STATE FAILED TO PROVE THAT THE SEIZURE OF THE DEFENDANT, INCLUDING ORDERING HIM OUT OF THE MOTOR VEHICLE, WAS LAWFUL.
D. THE STATE FAILED TO PROVE THAT THE ARREST AND SUBSEQUENT SEARCH OF THE DEFENDANT WERE LAWFUL.
E. THE STATE FAILED TO PROVE THAT THE STRIP SEARCH OF THE DEFENDANT WAS LAWFUL.
We reject these arguments and affirm.
On the evening of March 24, 2006, eight officers were conducting a narcotics surveillance in a particular area in East Orange. They were looking for an individual expected to receive drugs. All of the officers were in plain clothes and unmarked vehicles, but they wore police badges around their necks and police jackets or vests. At about 6:30 p.m., as it was getting dark, Officer Daniel Francis observed a black Honda Accord with tinted windows circle the block several times. He called dispatch and requested a check on the license plate. He was informed the vehicle was owned by Inger Stevens. The registration was valid, but Stevens’ driver’s license was suspended.
Francis broadcasted the information and proceeded to follow the Honda, intending to stop it. The Honda pulled into the parking lot of a commercial establishment. Francis pulled in behind it, and other police vehicles involved in the investigation also responded.
As officers approached the vehicle on foot, they could see two occupants, a female driver and a male, later identified as defendant, in the front passenger seat. As described by Officer Shawn Clark, both were
looking in a downward manner. [Defendant] looked up continuously I guess to identify where I was located. His hands was [sic] in and about his waist area which also was located around — I observed his hands come from behind him. At that point, he was still just turning towards the other female in the vehicle who was in the driver’s seat, which they was [sic] both at that point just looking down going in about their waist area.
Clark “observed them moving their hands around about their waist area, around the seat of the vehicle.” Defendant’s hands were “around the rear of his back, so I couldn’t really tell exactly if he was going to pull a weapon or anything.” Clark ordered the occupants to show their hands. They did not initially respond but continued acting in the manner he described. After several commands, they complied and raised their hands. He then ordered both occupants out of the vehicle. The female acknowledged that she was Stevens and that she did not have a valid driver’s license in her possession. Both were pat searched for weapons with negative results.
At about the same time, Detective Robert O’Neil shined his flashlight through the front windshield. He observed a plastic bag with a white substance in it on the driver’s seat near the center console. Based upon his training and experience, he believed the object was illegal drugs. He informed other officers of his observation. Stevens and defendant were asked about the suspected drugs. They both disclaimed any knowledge. Both were placed under arrest. They were handcuffed and transported separately to the Essex County Narcotics Task Force headquarters.
Because of the movements of both individuals in the car, their failure to immediately respond to the direction to show their hands, and the seizure from the car of suspected illegal drugs, Stevens and defendant were strip searched before being transported to the Essex County jail. Lieutenant Thomas Kelly was the supervising officer. He authorized the strip search of defendant and signed the appropriate authorization form. The basis for the search was probable cause to believe defendant possessed drugs or weapons and a search incident to arrest.
During the strip search of defendant, a black bag was seen protruding from his buttocks area. It was removed and seized. There was some inconsistency in the testimony of the various officers at the suppression motion as to the precise manner in which the bag was seized by the police. It may have fallen out of defendant’s buttocks area; or defendant might have removed it himself, and Detective Robert O’Neil immediately grabbed it from defendant; or an officer might have removed it directly. All officers agreed, however, that no body cavity search was conducted. The black bag contained four bags of crack cocaine and fifteen glassine envelopes of heroin.
Defendant moved to suppress the evidence found on the front seat of the Honda and that seized from his person as a result of the strip search. He argued that the initial stop was illegal, there was no basis to arrest defendant because the suspected drugs observed in plain view were on the driver’s seat, and that the strip search “which [defendant] submit was more of a body cavity search” was illegal.
Judge Vena, after hearing the testimony of six of the officers who were involved in the incident, including Francis, O’Neil, Clark and Kelly, rejected the arguments. He found the testimony of all of the officers credible. He found that, notwithstanding some inconsistencies about the precise mechanics of the strip search, no body cavity search occurred. His factual findings were substantially as we have described the events. Those findings are well supported by the substantial credible evidence in the record of the suppression hearing, and we accept them. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). We also agree with Judge Vena’s conclusion that, based upon those facts, the State carried its burden of proving the validity of the warrantless search and seizure.
Although the police did not actually stop the Honda, they acted lawfully in approaching the occupants for investigative purposes. Having observed the vehicle with tinted windows circle the block several times, the police acted reasonably in obtaining a look-up on the license plate. Even without any suspicious behavior, a look-up limited to the registration status of the vehicle, the license status of the registered owner, and whether the vehicle has been reported stolen, may be obtained. State v. Donis, 157 N.J. 44, 54-55 (1998). When the look-up reveals that the owner’s license has been suspended, “[t]hat information itself [gives] rise to the reasonable suspicion that the vehicle was driven in violation of the motor vehicle laws and [is] in itself sufficient to justify a stop.” Id. at 58.
The next question is whether the police had the right to require the occupants to get out of the vehicle. Once a motor vehicle has been lawfully detained, the right to require the driver to get out of the vehicle is unrestricted. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977). As to the passenger, under New Jersey jurisprudence, the totality of the circumstances must give rise to specific and articulable facts that would create in an objectively reasonable officer a heightened awareness of danger. State v. Smith, 134 N.J. 599, 618 (1994). The circumstances here included a vehicle with tinted windows circling the block several times, and, when police presence was observed, the occupants acted furtively, as if secreting items on or about their persons, and failed to immediately comply with commands to show their hands. This was a sufficient basis to require the passenger to get out of the vehicle.
Upon the plain view observation of suspected illegal drugs in the car, there was probable cause to arrest both occupants. Although the drugs were on the driver’s seat, they were in close proximity to the passenger’s seat, thus being within the area of control of defendant as he was seated on the passenger’s side. They were in open view. Thus, probable cause that defendant constructively possessed the drugs was established because defendant had “open and free access” to them. State v. Palacio, 111 N.J. 543, 552 (1988).
The strip search of defendant was appropriately conducted because the police had probable cause to believe that he secreted additional drugs (or possibly weapons) under his clothing. Probable cause derived from the seizure of drugs from the car in the immediate area where defendant had been sitting, combined with the circumstances of his presence in a car circling the block several times and, most importantly, the observations of defendant quickly moving his hands under his clothing when he became aware of the police presence and refusing to immediately stop those actions and show his hands when ordered to do so. The police therefore had a reasonable and articulable basis for probable cause that defendant possessed contraband under his clothing.
Defendant was the subject of a custodial arrest for a crime. Because of the particular circumstances giving rise to the reasonable belief that he possessed contraband under his clothing, the strip search was justified incident to the arrest. Even if defendant’s arrest was for an offense other than a crime, the strip search would have been allowed. N.J.S.A. 2A:161A-1b. The search conformed with the requirements of N.J.S.A. 2A:161A-4a. See also State v. Harris, 384 N.J. Super. 29, 48-50 (App. Div.) (noting that totality of circumstances must support reasonable belief that additional drugs would be secreted under the clothing to justify a strip search), certif. denied, 188 N.J. 357 (2006).
Affirmed.
New Brunswick Postal Worker accused of theft by deception
Jennifer James, a New Brunswick postal worker was arrested and charged with possession of stolen property and theft by deception. Police allege that she used a stolen ATM card to make 16 withdrawals and steal $7,500 from another woman’s bank account within the last month. After a New Brunswick resident notified police that money had been taken from her account, they began an investigation. They allege that James had obtained the victim’s card and personal identification number and made withdrawals in New Brunswick and North Brunswick.
There is no indication as to how the card was stolen, but I doubt that it was connected to her job as a postal worker for a number of reasons. For one, identity theft is often a crime of opportunity for people that are not involved in organized crime. In addition, she was not arrested by Federal law enforcement which you would expect if this involved theft of mail.
Story is here.
Conviction reversed due to State’s numerous references to gangs during trial
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAMUEL SPARKS AKA “MOET,”
Defendant-Appellant.
April 20, 2009
Argued March 10, 2009 – Decided
Before Judges Winkelstein, Fuentes and Chambers.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-02-0165-I.
Ronald C. Appleby, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Appleby, on the brief).
Christopher W. Hsieh, Senior Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Hsieh, of counsel and on the brief).
PER CURIAM
A jury convicted defendant, Samuel Sparks, of first-degree conspiracy to commit murder and second-degree aggravated assault. Following the verdict, the trial court set aside defendant’s conspiracy conviction. The court sentenced defendant to a twenty-year prison term, with an eighty-five percent period of parole ineligibility.
On appeal, defendant raises the following legal arguments:
POINT I: THE CONVICTIONS SHOULD BE REVERSED BECAUSE THE MOTION TO SEVER THE CRIMES REGARDING THE TWO INCIDENTS SHOULD HAVE BEEN GRANTED, AND FAILURE TO DO SO PREJUDICED DEFENDANT’S RIGHT TO A FAIR TRIAL.
POINT II: THE STATE SHOULD NOT HAVE BEEN PERMITTED TO MAKE GANG REFERENCES OVER DEFENSE OBJECTION, AND THESE REFERENCES PREJUDICED DEFENDANT.
POINT III: THE PHONE CONVERSATION BETWEEN DEFENDANT AND HECTOR ACEVEDO SHOULD NOT HAVE BEEN ADMITTED, AND PROSECUTOR SHOULD NEVER HAVE SUBSTANTIVELY USED [] ACEVEDO’S STATEMENT IN THAT CONVERSATION.
POINT IV: THE PROSECUTOR’S DELIBERATE REFERENCE TO DEFENDANT’S ALLEGED DRUG POSSESSION DENIED HIM A FAIR TRIAL.
POINT V: REFERENCES TO DEFENDANT BEING AN INFORMANT AND BEING FAMILIAR WITH POLICE OFFICERS DEPRIVED HIM OF HIS RIGHT TO A FAIR TRIAL.
POINT VI: THE STATE IMPROPERLY NEUTRALIZED ITS OWN WITNESS ON DIRECT EXAMINATION, BRINGING IN A PRIOR STATEMENT BEFORE ALLOWING THE WITNESS TO TESTIFY TO HER RECOLLECTION.
POINT VII: REFERRENCE TO THE CO-CONSPIRATOR’S PRIOR ARRESTS PREJUDICED DEFENDANT.
POINT VIII: INSTANCES OF PROSECUTORIAL MISCONDUCT CUMULATIVELY DENIED DEFENDANT’S RIGHT TO A FAIR TRIAL.
POINT IX: DEFENDANT’S SENTENCE TO THE MAXIMUM TERM UNDER THE PERMISSIVE EXTENDED TERM WAS EXCESSIVE.
Primarily because we find merit to his argument that the State’s numerous gang references precluded him from receiving a fair trial, we reverse defendant’s conviction.
I
In the early morning hours of August 4, 2003, Darby Alston was asleep in bed with his fiancée, Kinusha Davis, in his apartment at 324 Market Street in Paterson. Davis woke up to the sound of gunshots around 2:30 a.m. and saw someone standing over her with a gun. Alston had been shot. Davis described the shooter as wearing black jeans, a long black coat and black hat, with a red bandana hanging from his waist. She estimated him to be approximately five-foot-six to five-foot-seven. She was unable to identify him because his face was covered.
Gregory Myers, who lived nearby, was home during those early morning hours and saw a man wearing a hoodie walk into 324 Market Street. About ten to fifteen seconds later, Myers heard three or four gunshots and then saw the man in the hoodie leave the building. He described the man as approximately five-foot-ten to five-foot-eleven, wearing a red bandana across his face.
Richard Edmonds was on Market Street selling drugs at the time of the shooting. He saw a black man with a stocky build and wearing a black hoodie and a red bandana across his face walking toward Alston’s building “like [he was] angry.” About two minutes after the man entered the building, Edmonds heard a bang, followed by three successive shots. Moments later, he saw the man leave. Edmonds described the man as five-foot-ten to five-foot-eleven. He stated that the man’s build, walk and dark skin tone resembled Gerald Johnson, also known as “Black.” He explained that Johnson has a distinctive walk, and the man in the black hoodie had the same walk, but faster and more aggressive.
Johnson and defendant were friends. There had been more than one altercation between them and Alston in the days preceding Alston’s murder.
Pamela Drakeford testified that in the summer of 2003, she accompanied defendant and his girlfriend, Jackie, to 324 Market Street to get tattoos, where an altercation broke out between defendant and Alston. Alston had told defendant that his friend Johnson was a “dead man walking,” at which point defendant ran out and “[got] some of his boys,” including Johnson. When they returned, Alston had a baseball bat and another man, identified as Richard Edmonds, had a handgun. A fight ensued, during which Alston swung a baseball bat at Johnson. According to a witness, Alston “knocked [defendant and Johnson] out, and it was over.” Although Drakeford could not remember the date of the incident, defendant later told the police that the fight occurred on July 31, 2003.
Kinusha Davis witnessed a fight over drug territory between Alston, defendant and Johnson several days before Alston’s murder. She stated that after defendant and Johnson told Alston to leave the area, Alston punched defendant.
Defendant’s conviction for second-degree aggravated assault arose out of a drive-by shooting that occurred shortly after the altercation on July 31, 2003, and several days before Alston’s murder. According to Richard Edmonds, about a half-hour after Alston’s altercation with defendant and Johnson, he and Alston were on Market Street when a car drove by and someone in the car fired shots. No one was hit. Edmonds saw an arm extended out of the passenger window and “black guys” in the car. After the shooting, Alston said: “that mother fucker Black [Johnson] almost shot me in the face.” Derrick Edmonds, Richard’s brother, was present and also saw two people in the car; he identified defendant as the shooter.
Myers was about a block away when he heard gunshots. He saw a green car coming from Market Street; a man who appeared to have a gun got out of the passenger side. He identified defendant as the man with the gun. Myers saw shell casings in the middle of Market Street, and saw an unidentified man later kick them into the sewer. The police subsequently recovered three nine millimeter shell casings from the sewer drain.
Defendant’s sister, Jada Rose, testified that she had loaned her green Mitsubishi Eclipse to defendant in the afternoon on July 31, 2003. Defendant returned the car at approximately 3:30 a.m. on August 1, 2003. Rose testified that during the summer of 2003, defendant was a member of the Bloods street gang.
The police believed that Alston’s murder may have been connected to the July 31, 2003, drive-by shooting. On August 4, 2003, the police asked defendant for help regarding Alston’s murder. The next day, defendant voluntarily went to police headquarters. Detective Donald Giaquinto interviewed defendant, who confirmed that he had an altercation with Alston on July 31, 2003, but told the police that he had no knowledge of a drive-by shooting. He told the police that he left for South Carolina soon after the altercation he and Johnson had with Alston on July 31. Witnesses confirmed that defendant was in South Carolina on the date of Alston’s murder. He also told the police that Johnson might be involved in Alston’s murder because they were arguing over drug territory, and he had seen Johnson with a gun.
The police arrested Johnson on August 12, 2003. According to Police Sergeant Steven Sela, that same day defendant told the police that Johnson said, “I shot Daz, and I’ll take the ride. Blood forever.” Defendant further told the police that, on another occasion, he overheard Johnson admit to killing Alston.
II
On February 25, 2004, a grand jury charged defendant with first-degree murder, N.J.S.A. 2C:11-3a and N.J.S.A. 2C:2-6b(4) (count one); first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count two); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2a and N.J.S.A. 2C:11-3 (count three); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); second-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5b (count five); and second-degree possession of a firearm by a person not to have a weapon, N.J.S.A. 2C:39-7b (count six). Counts seven through ten of the indictment charged Johnson with murder and weapons offenses. The court severed defendant’s charges from Johnson’s.
Defendant moved to sever counts one and three, which were related to Alston’s murder, from the remaining counts against him, which were related to the drive-by shooting. The court denied the motion.
In another pretrial motion, defendant sought to preclude any reference to his being a member of a gang. The judge denied the motion, finding that the probative value of the evidence outweighed the prejudice to defendant. The judge also denied defendant’s challenge to the admissibility of an audio tape of a conversation between defendant and Hector Acevedo, a witness to the July 31, 2003, altercation between defendant and Alston.
Following a trial from May 25 to June 15, 2006, the jury convicted defendant of second-degree aggravated assault on count two and conspiracy under count three, and acquitted him on counts one, four and five. The court subsequently granted defendant’s motion for judgment notwithstanding the verdict on count three, the conspiracy conviction, and for acquittal on count six, possession of a firearm by a person not to have a weapon.
III
We begin our discussion of the substantive issues with defendant’s contention that the pretrial judge erred by denying his request to sever the counts of the indictment addressing the July 31, 2003, incident from the counts related to Alston’s murder. We reject those arguments.
“Joinder is permitted when two or more offenses ‘are of the same or similar character or are based on . . . 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.'” State v. Morton, 155 N.J. 383, 451 (1998) (quoting R. 3:7-6), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). The trial court has broad discretion to order separate trials of counts if it appears that a defendant will be prejudiced by the joinder of offenses. R. 3:15-2(b). A motion for severance should be “liberally granted” if joinder would likely prejudice the defendant. Pressler, Current New Jersey Court Rules, comment 1.1 on R. 3:7-6 (2009). Absent an abuse of discretion, this court will defer to the trial court’s decision on such a motion. State v. Chenique-Puey, 145 N.J. 334, 341 (1996).
When considering a motion for severance, the court may consider such factors as judicial economy and efficiency, State v. Moore, 113 N.J. 239, 276 (1988), but the “critical inquiry is whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under Evidence Rule 55 [now N.J.R.E. 404(b)] in the trial of the remaining charges.” State v. Pitts, 116 N.J. 580, 601-02 (1989). Other-crimes evidence is admissible “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.” N.J.R.E. 404(b). “If the evidence would be admissible at both trials, then the trial court may consolidate the charges because a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.” Chenique-Puey, supra, 145 N.J. at 341 (internal quotation omitted). The “plan” example set forth in N.J.R.E. 404(b), employed by the prosecution here, “refers to instances in which the other-crime evidence proves the existence of an integrated plan, of which the other crimes and the indicted offense are components.” State v. Stevens, 115 N.J. 289, 305-06 (1989).
In State v. Cofield, 127 N.J. 328, 338 (1992), the Court established the following four-part test to determine when other-crime evidence is admissible:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
N.J.R.E. 404(b) considerations are inapplicable, however, where the other-crime evidence may be considered part of the res gestae, or state of mind, behind the crime charged. State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). “Evidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury.” Ibid.
Applying these standards, we conclude that the pretrial judge’s decision to permit joinder was not an abuse of discretion. The prosecutor presented the court with evidence that linked the July 31 and August 4 incidents, and linked defendant to both. The prosecutor represented to the court that defendant expressed surprise at missing Alston during the drive-by and swore, on his children, that he would “get” Alston.
The events of July 31, 2003, meet the test for admissibility set forth in Cofield, supra, as the altercations between defendant and Alston and the subsequent drive-by shooting at Alston, are relevant to the murder and conspiracy charges. 127 N.J. at 338. The events of July 31 are a basis for the State’s assertion that defendant played a role in Alston’s murder four days later. Both incidents involved shootings; they are similar in kind. Ibid. There is a close temporal connection; the murder occurred just four days after the drive-by shooting. Ibid. And, there was clear and convincing evidence that the drive-by shooting occurred. Ibid.
Moreover, there is no indication that the evidence related to Alston’s murder was unduly prejudicial to defendant with regard to the attempted murder charges. See State v. Scherzer, 301 N.J. Super. 363, 469 (App. Div.), certif. denied, 151 N.J. 466 (1997) (noting that “[a]ll damaging evidence is prejudicial; it is only when the probative value is substantially outweighed by the potential prejudice that the evidence should be excluded”). The absence of undue prejudice is evidenced by the jury’s verdict convicting defendant only on count two, related to the July 31 incident, and then, of the lesser-included charge of second-degree assault rather than first-degree attempted murder. The jury acquitted defendant of the murder and weapons charges.
The interests of judicial economy and efficiency also support the court’s decision to permit joinder. Severance would have resulted in two trials with much of the same testimony.
Finally, there was ample evidence of animosity between defendant and Alston. Defendant and Alston had been involved in a fight just prior to the drive-by shooting, and defendant admitted that he had physical altercations with Alston. Derrick Edmonds identified defendant as the drive-by shooter, and Myers stated that he saw defendant get out of a green car coming from Market Street with a gun shortly after hearing shots fired. Moreover, the car defendant borrowed from his sister on the afternoon of July 31, 2003, met the description of the vehicle that Derrick Edmonds and Myers provided to the police. In sum, there is no indication that defendant was unduly prejudiced by joinder of the charges.
IV
We next turn to what we consider to be defendant’s dispositive argument on appeal. He asserts that the judge erred by permitting, without a limiting instruction, multiple references to defendant’s involvement with the Bloods street gang. The State responds that the trial judge properly determined that the references had sufficient probative value to outweigh any prejudice to defendant, and no limiting instruction was necessary because the jurors were initially screened for potential prejudice regarding gangs.
Prior to trial, defendant sought to exclude any reference to his involvement in the Bloods street gang. The prosecutor argued that gang affiliation was relevant because statements made by both defendant and Johnson indicated that the drive-by and murder were “gang retribution.” He asserted that “this case is about drugs, it’s about a dispute over drug turf and it’s about the fact that not only was Mr. Alston impeding on the drug turf of a Blood member but he also assaulted two Blood members and this is retaliation by Blood members that’s expressed in Blood [terms].” The prosecutor argued that the gang references were “directly tied to the case itself and particularly so in a case of a conspiracy because it establishes the basis of the relationship between the two defendants.”
Based on the State’s proffer, the trial judge determined that references to defendant’s and Johnson’s gang affiliations were relevant to a jury’s understanding of “their relationship and how that relationship relates to their dispute with [Alston] . . . . It certainly is probative of the . . . overall relationship between the two and the theory that the State is advancing that they were engaged in a conspiracy to . . . take [Alston’s] life.” The judge concluded that the probative value outweighed any prejudice to defendant.
Had the State followed through with its proffer and produced evidence to tie defendant’s gang affiliation to the charges, the evidence may have been admissible. But, the State failed to produce evidence of that linkage. Consequently, the gang references prejudiced defendant with no counterbalancing relevance to the State’s case.
Relevant evidence is “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. Here, the multiple references to defendant being a member of the Bloods street gang were neither relevant nor probative. The prosecutor failed to support his pretrial argument that defendant’s gang affiliation was “directly tied to the case itself.” The record contains no evidence that defendant’s gang affiliation played any part in either the drive-by shooting or Alston’s murder.
The State specifically argued during the pretrial motion that gang membership was pertinent to the conspiracy count. Yet, the State did not link defendant and Johnson together as Bloods or tie the alleged plan to kill Alston to their gang affiliation. Instead, the State theorized that defendant and Johnson conspired to murder Alston over drug territory. In support of that theory, the prosecutor elicited testimony regarding Johnson’s drug dealing and how Alston was moving into Johnson’s territory. The State did not, however, demonstrate any connection between defendant’s and Johnson’s affiliation with the Bloods and the drive-by shooting or murder.
Nevertheless, the record was replete with gang references without an instruction from the judge to the jury as to how that evidence could be used. In his opening statement, the prosecutor referenced Johnson’s affiliation with the Bloods, stating that when defendant was asked whether anyone involved in the July 31, 2003, altercation with Alston was a Blood member, he replied, “Yes, Supreme and Black [Johnson].” Also in his opening, the prosecutor noted that defendant told the police that Johnson told him, “I shot Daz [Alston], and I’ll take the ride. Blood forever.” During Jada Rose’s testimony, the prosecutor elicited that defendant was a member of the Bloods street gang during the summer of 2003.
Sergeant Sela read the following exchange between defendant and him into evidence: “Question: Are any of these people Blood members? Answer: Yes. Supreme and Black.” Sela testified that defendant told him that Johnson had admitted to the murder, stating: “I shot Daz, and I’ll take the ride. Blood forever.” Also, although not a direct reference to the Bloods, Sela said that the police had reached out to defendant following Alston’s murder “through . . . Detective Jose Furman, [who] was assigned to the [g]ang [u]nit of the Passaic County Prosecutor’s Office.” Finally, Detective Giaquinto testified that defendant also told the police that Johnson was a member of the Bloods. Although these statements show that defendant and Johnson were both members of the Bloods street gang, they do not, in any way, link defendant and Johnson together in a conspiracy to murder Alston.
The prosecutor also referenced defendant’s and Johnson’s alleged gang membership during summation when discussing the July 31 fight. The prosecutor said: “And that Hector, the tattoo guy, broke up this fight and that [defendant] then ran to the building . . . to get his boy, is how he put it to Lieutenant Gioquinto, to get his boy, Black, Supreme, who, like [defendant] at the time, were members of the Bloods.” Near the close of his summation, the prosecutor again addressed statements that Johnson allegedly made to defendant that he shot Daz and he would “take the ride. Bloods forever.” The evidence does not, however, support a reasonable inference that either shooting was gang-related.
Defendant moved for a mistrial, arguing that the references to the Bloods were unduly prejudicial to defendant in light of the evidence and arguments presented. The trial judge admitted that he “might not have let [the gang references] in” had he known that the evidence proffered at the motion hearing would not be presented at trial. However, he observed that each member of the jury had indicated that gang affiliation would not influence his or her judgment. The judge also found that the case has an “overlay of the gang issues,” and that the gang affiliation is part of the State’s conspiracy theory. He therefore denied the motion.
We disagree with the court’s rationale. Because the prosecution’s references to defendant’s gang affiliation, as presented, were not linked to any element of the crimes charged, those references served no other purpose than to unfairly prejudice defendant. Evidence that defendant and Johnson were members of the Bloods was not necessary to support the conspiracy charge. The conspiracy theory rested upon a dispute over drug territory and the evidence did not tie that dispute to a conflict between gangs about that subject. Defendant did not dispute his friendship with Johnson, which was also established by other, non-gang-related evidence in the record. Moreover, as previously noted, the prosecutor made no attempt to link defendant and Johnson together as Bloods, or to show that the crimes charged were gang-related.
On the record presented to the jury, even if the evidence had some minimal relevance, which it did not, the probative value of the references to defendant’s gang affiliation was substantially outweighed by the undue prejudice to defendant. See N.J.R.E. 403 (even if relevant, “evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury”). The screening of the jurors for potential prejudice against gangs during voir dire cannot overcome the multiple inflammatory gang references during trial. To the contrary, the pretrial inquiry had the capacity to implant in the jurors’ minds the notion that this case was gang-related, without evidence to support that belief.
Gang references are tantamount to other-crimes testimony, subject to admission only if N.J.R.E. 404(b) is satisfied. “Other crimes evidence is considered highly prejudicial.” State v. Vallejo, ___ N.J. ___, ___ (2009) (slip op. at 15) (citing Stevens, supra, 115 N.J. at 309). “The risk involved with such evidence is ‘that it will distract a jury from an independent consideration of the evidence that bears directly on guilt itself.'” Ibid. (quoting State v. G.S., 145 N.J. 460, 468 (1996)). “[T]he government may not convict an individual merely for belonging to an organization that advocates illegal activity.” United States v. Abel, 469 U.S. 45, 48, 105 S. Ct. 465, 476, 83 L. Ed. 2d 450, 455 (1984) (internal quotation omitted).
Here, the references to defendant’s gang membership were inherently prejudicial. Though N.J.R.E. 404(b) recognizes limited purposes for which that evidence may be used, none of those purposes, which could have outweighed the prejudicial impact of the evidence, were present.
Moreover, that the court admitted testimony without an instruction explaining to the jury the purpose for which the evidence was being offered weighs heavily in our determination. An immediate and specific curative instruction is necessary to “alleviate potential prejudice to a defendant from inadmissible evidence that has seeped into a trial.” Vallejo, supra, ___ N.J. at ___ (slip op. at 18). In the absence of any instruction here, we conclude that the “recurring admission of evidence of other crimes and wrongdoings by defendant” — the references to his gang membership — poisoned the trial. Id. at ___ (slip op. at 2); cf. State v. Echols, ___ N.J. ___, ___ (2009) (slip op. at 19) (court’s instruction that attorneys’ comments were not evidence cured potential prejudice resulting from prosecutor’s single statement at start of trial that defendant’s gang membership could endanger the jury). Thus, given the absence of a curative instruction, “defendant was denied the fair trial to which all defendants, regardless of the strength of the case against them, are entitled.” Vallejo, supra, ___ N.J. at ___ (slip op. at 18).
The State claims that the gang-related evidence was admissible pursuant to State v. Torres, 183 N.J. 554, 562-63 (2005), in which the Court permitted expert testimony explaining the role of the defendant’s gang affiliation and what role it played in the crime charged. Torres is distinguishable from the present case. There, the defendant was the leader of a gang who was alleged to have ordered two gang members to murder another gang member. Id. at 559-62. The Court found that the State could offer an investigator with a history of working with gangs and organized crime as an expert witness regarding the hierarchy of street gangs. Id. at 562, 579. In Torres, the defendant’s gang affiliation, and his position in the gang hierarchy, was directly related to the charges against him. Id. at 561-62. By contrast, here, no link exists between defendant’s alleged gang membership and the crimes charged.
The State also relies on State v. Conway, 193 N.J. Super. 133, 169 (App. Div.), certif. denied, 97 N.J. 650 (1984), in which we found that references to the defendant’s organized crime affiliation were not prejudicial error. There, however, the subject of organized crime was not raised by the State, but by the defendant. Id. at 165. And too, the court permitted the references to organized crime as relevant to motive. Id. at 165-66, 168. Here, defendant’s gang membership was unrelated to the motive for the shooting.
As the Court found in Vallejo, supra, where the trial court improperly permitted references to a domestic violence restraining order against the defendant, the “trial was poisoned by the recurring admission of evidence of other crimes and wrongdoings by [the] defendant.” (slip op. at 2). Here, as in Vallejo, we cannot be certain that the jury based defendant’s conviction on admissible evidence, as the prejudicial evidence of defendant’s alleged gang affiliation may have informed its decision. Consequently, the multiple gang references require a new trial.
V
We next address defendant’s argument that the judge erred in denying his request for a mistrial following a prosecution witness’s testimony that defendant was a police informant. Defendant further asserts that his sister’s testimony that she found drugs in a jacket after he wore it; and, a police officer’s testimony about Johnson’s arrest record, cumulatively, denied him a fair trial. Because we have already determined that a new trial is warranted, the mistrial issue is moot. Nevertheless, we conclude that all of this testimony, when considered with the gang references, had the cumulative effect of casting sufficient doubt on the verdict to warrant a new trial.
On direct examination, Sergeant Sela stated: “I had known [defendant] prior to that several years. . . . [F]or a long time.” Following defense counsel’s objection, Sela clarified that he knew defendant as a “purely personal” acquaintance, and their relationship was not on a “business level.” Later, Sela testified that the police asked defendant to help them “[b]ecause, at that time, we were working together. We had a relationship with . . . [defendant] as an informant.” Defense counsel moved to strike Sela’s response and for a mistrial.
The court acknowledged that Sela’s statement linked defendant with criminal activity, but nevertheless the court denied defendant’s motion for a mistrial. Instead, the court struck Sela’s statement and provided a curative instruction to the jury. We agree with the trial judge that the evidence was inadmissible and unduly prejudicial. We conclude, however, that despite the curative instruction, when that testimony is taken together with the gang references, as well as with other improper testimony that required curative instructions — the testimony of defendant’s sister, Jada Rose, about locating drugs in a jacket after defendant wore it; and the police officer’s references to Johnson’s arrest record — the cumulative effect of the testimony denied defendant a fair trial.
“Even when an individual error or series of errors does not rise to reversible error, when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal.” State v. Jenewicz, 193 N.J. 440, 473 (2008); see also State v. Wakefield, 190 N.J. 397, 538 (2007) (“[T]he predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair.”), cert. denied, ___ U.S. ___, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Put simply, even aside from the improper gang testimony, other improper, unduly prejudicial testimony necessitated multiple curative instructions during the trial. These errors cumulatively rendered the trial unfair.
VI
In light of our decision to reverse defendant’s conviction, we decline to address the remaining evidentiary issues defendant has raised. Should they arise in a retrial, they should be addressed by the trial judge in the context of the new record.
VII
Reversed and remanded for a new trial.
Court upholds wiretap order
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER GRAHAM,
Defendant-Appellant.
________________________________
April 20, 2009
Submitted October 21, 2008 – Decided
Before Judges Collester and Graves.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
06-06-1387D.
Jacobs & Barbone, attorneys for appellant
(Louis M. Barbone, of counsel and on the
brief).
Theodore F. L. Housel, Atlantic County
Prosecutor, attorney for respondent (James F.
Smith, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Pursuant to a negotiated plea agreement, defendant Christopher Graham entered a guilty plea to three counts of a 105-count indictment against him, namely, conspiracy to distribute a controlled dangerous substance, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(2); operating a controlled dangerous substance production facility, contrary to N.J.S.A. 2C:35-4; and possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1). On April 20, 2007, he was sentenced to an aggregate term of twenty years.1
Defendant’s convictions stem from an extensive, ongoing investigation of narcotics trafficking in Atlantic County which began on January 4, 2006, when members of the Atlantic County Prosecutor’s Narcotic Strike Force arrested an individual in Pleasantville with three ounces of crack cocaine and a shotgun. This individual agreed to serve as a cooperating witness (CW) in the Strike Force’s ongoing investigation. He told members of the Strike Force that he had purchased the crack the previous day from Troy Sanchez and that Sanchez gave him the shotgun to hide for him. He said he had been dealing with Sanchez for about two years, purchasing two ounces of cocaine from Sanchez roughly every four days. An inquiry into Sanchez’s background revealed that he had been arrested five times for drug offenses over the past decade and that one arrest culminated in a conviction for distribution of CDS and a seven-year sentence.
On January 6, 2006, the CW made a controlled purchase of one and one-half ounces of crack cocaine from a Sanchez associate. Four days later the CW attempted to arrange a purchase of the same quantity of crack cocaine, but the transaction was not completed because Sanchez had only powdered cocaine. Two days later on January 12, 2006, the CW made a second controlled purchase of two ounces of crack cocaine from the same Sanchez associate and paid $1,650. The third controlled purchase of crack cocaine was made on January 16, 2006, and the CW paid $1,450 to Sanchez’s associate.
Four days after his third controlled purchase of crack cocaine, the CW was found dead in Atlantic City. He had been strangled and shot.
Investigator Tracy P. Wich of the Strike Force then prepared an application for an order authorizing the interception of wire and electronic communications from the telephone Sanchez used to arrange the sales of crack cocaine to the CW. Wich’s application stated he had been employed by the Division of Criminal Justice for approximately seven years, the last three with the Major Narcotics Bureau. He received training in narcotics investigations through national courses and in-service training, participated in more than 1,000 narcotics-related investigations, and had experience preparing applications for communications data warrants and monitoring wiretaps.
The application was granted on January 30, 2006, by Judge Albert J. Garafolo, a Superior Court judge designated to review and grant wiretap warrants. Two days later, investigators intercepted a conversation between Sanchez and the defendant during which defendant told Sanchez, “I got that situation for you.” In response, Sanchez said: “Alright, just put that on ice though cause . . . that’s to the side . . . that’s already in . . . . I’m gonna start . . . the day after tomorrow with that. . . .” After defendant answered “Alright,” Sanchez concluded, “I’m ready to come back around though, I’m coming around in a little bit.”
Based on his training, experience and knowledge of facts disclosed by the investigation into Sanchez’s activities, Investigator Wich stated that the conversation related to a cocaine transaction. Wich interpreted the statements by defendant to mean he had cocaine for Sanchez, and that Sanchez wanted defendant to put the cocaine aside so he could sell it to his customers the next day.
Two days later investigators overheard Sanchez arrange for the sale of two ounces of cocaine to an unidentified female. Over the following week investigators intercepted various communications in which Sanchez arranged various illegal transactions involving firearms and the sale of cocaine, Percocet, and marijuana. On February 12, 2006, investigators intercepted another conversation between Sanchez and defendant. Defendant asked Sanchez on that date why Sanchez had not previously called him. Sanchez responded:
Nah, I thought you got, I thought you probably seen the time in the . . . kitchen. . . . I’m like, you know nobody don’t like to get rushed on that shit, you know what I mean? Its all in the in the wrist baby, I ain’t want to, you know what I mean? You needed your concentration. . . .
Defendant replied, “Nah man, on the straight up you don’t even got [to] twirl nothing you just got to pour the water out,” Sanchez said, “Oh right (laughing), oh that’s how you do it? You ain’t twirling nothing, you, you got me straight on that one. . . .”
Wich interpreted this conversation as Sanchez telling defendant he did not call him because he did not want to interrupt defendant’s cooking of powder cocaine into crack cocaine. Defendant’s response meant that he was so experienced with the process he did not have to concentrate on any twirling but, instead, just boiled the ingredients down and poured out the remaining water.
Three days later, on February 15, 2006, defendant and Sanchez spoke again. During this conversation, Sanchez asked defendant, “[W]hat’s the best you can do on a half?” Defendant answered: “I guess . . . you know that number. . . .” Sanchez then asked whether defendant would allow him to “meet the nigga” if Sanchez got “the whole jawn.” Once defendant answered in the affirmative, Sanchez asked, “[S]o if you grab the man for me what’s the tag me like a stack?” Defendant said, “Yeah,” and Sanchez went on, “Aight, instead of twenty three, it’ll be twenty four, right?” Defendant again said, “Yeah.”
Wich said that the defendant and Sanchez were discussing a future purchase of a large quantity of cocaine. The “half” to which Sanchez referred in the conversation was one-half a kilogram of cocaine. When defendant responded, “I guess . . . you know that number,” Wich said it indicated defendant had sold the same quantity to Sanchez in the past. When Sanchez spoke of getting the “whole jawn,” Wich’s interpretation was that he wanted to purchase a kilogram of cocaine, for which he normally would pay $23,000. However, he would have to pay $24,000 if defendant introduced him to the individual from whom defendant was receiving his own cocaine supply.
A check of defendant’s criminal history disclosed he had been arrested ten times and convicted five times. He was twice convicted for illegal possession of a handgun and possession of a controlled dangerous substance as well as receiving stolen property. He also was indicted for distribution of cocaine, possession of a defaced handgun and possession of a firearm by a convicted person, charges which were pending disposition at the time of the Sanchez investigation.
On March 21, 2006, members of the Strike Force followed defendant to Philadelphia where he purchased a kilogram of cocaine. The officers observed him place the package of cocaine in the trunk of his car. He was stopped after crossing back into New Jersey. Following a canine sniff, a search warrant was obtained for the vehicle, and the cocaine was seized. Defendant was arrested and subsequently named in a 212-count indictment charging him with, inter alia, second-degree conspiracy to distribute cocaine, first-degree operation of a CDS production facility and first-degree possession of CDS with intent to distribute. Following the denial of his motion to suppress the intercepted communications and to dismiss the indictment by Judge Michael A. Donio, defendant entered his plea of guilty. This appeal followed.
Defendant presents the following arguments:
POINT I – ANY AND ALL INTERCEPTIONS AND SEIZURE OF ELECTRONIC, ORAL OR DATA COMMUNICATIONS REGARDING DEFENDANT SHOULD HAVE BEEN SUPPRESSED PURSUANT TO N.J.S.A. 2A:156A-2.1.
POINT II – ANY AND ALL EVIDENCE DERIVED FROM THE INTERCEPTIONS SHOULD HAVE BEEN SUPPRESSED.
POINT III – THE ENTIRE PRESENTATION OF EVIDENCE AT GRAND JURY IS LEGALLY INFIRM, AS ALL OF IT IS DIRECTLY DERIVED FROM THE UNLAWFUL WIRE INTERCEPTIONS.
New Jersey’s Wiretap and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-10, provides in pertinent part that upon consideration of an application a judge may enter an ex parte order authorizing the interception of a wire, electronic or oral communication if based on the facts submitted by the applicant that there is or was probable cause for belief that:
a. The person whose communication is to be intercepted is engaging or was engaged over a period of time as a part of a continuing criminal activity or is committing, has or had committed or is about to commit an offense. . . .
b. Particular communications concerning such offense may be obtained through such interception; [and]
c. Normal investigative procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ. . . .
The Wiretap Act also provides a framework for individuals seeking to suppress evidence gathered from illegal communication and data intercepts. It provides, in pertinent part, that:
Any aggrieved person in any trial, hearing, or proceeding in or before any court or other authority of this State may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on the grounds that:
a. The communication was unlawfully intercepted;
b. The order of authorization is insufficient on its face; or,
c. The interception was not made in conformity with the order of authorization or in accordance with the requirements of section 12 of P.L.1968, c.409 (C.2A:156A-12).
A showing of bad faith on the part of law-enforcement officials is not necessary in order to warrant suppression of evidence obtained in violation of the Wiretap Act. State v. Worthy, 141 N.J. 368, 384 (1995). Nor is the Act’s exclusionary rule conditioned on a predicate finding of an intentional or deliberate violation or evasion of the Act’s requirements. Ibid. What is required to warrant suppression of such evidence is a showing that the substantive elements of the statute were not met. That is, that (1) there was no probable cause for interception, or (2) there was no need for electronic surveillance because of other investigation methods. State v. Murphy, 148 N.J. Super. 542, 548 (1977).
Defendant argues that the probable cause requirement of the Wiretap Act was not met and that there was no “independent investigation” other than the three intercepted phone calls which contained ambiguous phrases used by defendant and Sanchez. Defendant asserts that these phrases were automatically construed by Investigator Wich as detailing large narcotics transactions by simply changing and expanding his glossary of narcotics trafficking code to translate these phrases to support the investigation. We disagree. Considering the extensive investigation as a whole, there clearly existed probable cause to believe that defendant was involved in narcotics trafficking in Atlantic County.
Probable cause exists when an officer has a well-founded suspicion or belief of guilt which may constitute something less than proof needed to convict and something more than a raw, unsupported suspicion. State v. McKenna, 228 N.J. Super. 468, 474 (App. Div. 1998) (citing State v. Davis, 50 N.J. 16, 23 (1967)), cert. denied, 389 U.S. 1054 (1968). It is not a rigid concept; rather, it is “flexible [and] nontechnical.” State v. Novembrino, 105 N.J. 95, 120 (1987). A court determines the existence of probable cause by applying a “common-sense, practical standard.” Ibid. Moreover, in assessing the showing of probable cause upon a motion to suppress, a trial court should not lightly second-guess the determination made by the issuing judge. State v. Kasabucki, 52 N.J. 110, 117 (1968). Rather, the reviewing judge is to re-examine the record for the purpose of assuring that there were sufficient facts upon which the issuing judge could posit his finding of probable cause. State v. Christy, 112 N.J. Super. 48 (1970).
The evidence of the investigation was presented to Judge Garafolo through Wich’s affidavit. He found that there existed probable cause that defendant was involved in an ongoing criminal enterprise. Judge Garafolo’s finding of probable cause is supported by the affidavit, and Judge Donio gave that determination proper weight in his subsequent review. We find no error.
Defendant next argues that the wiretap order should have been denied because of the absence of a showing that other means of investigation were attempted and failed. N.J.S.A. 2A:156A-10(c) requires that on the basis of facts submitted by the applicant there is probable cause for belief that normal investigative procedures have been tried and have failed, reasonably appear to be unlikely to succeed if tried, or appear to be too dangerous to employ. The ongoing investigation conducted in this case featured surveillance, controlled purchases, and the use of a confidential informant who was later murdered. Further, it is clear that the wiretap was a necessary part of the investigation because the nature of the conspiracy itself was extensive and involved large amounts of cocaine.
In State v. Christy, supra, 112 N.J. Super. at 64-65, we held when an attempt to infiltrate an illegal organization failed, a wiretap order was justified. Similarly, in State v. Pemberthy, 224 N.J. Super. 280, 297 (1988), where efforts to introduce a confidential informant to a illegal enterprise would have compromised the investigation, it was reasonable to conclude that such efforts would not have been productive, thus justifying an affiant investigator’s request for a wiretap order. Additionally, where normal investigative techniques failed in a prior, related investigation, that failure may be taken into account in assessing whether such techniques would likely be productive in a successive investigation. Ibid. citing State v. Braeunig, 122 N.J. Super. 319, 326-27 (App. Div. 1973). In arguing that no normal investigative procedures were specifically used, defendant attempts to isolate the investigation against him. But defendant’s convictions were the result of an extremely large-scale, ongoing investigation of an extensive narcotics trafficking operation in Atlantic County, leading to a 217-count indictment of seventeen defendants.
Defendant argues that investigators might have used a cooperating witness against him in the same fashion that they had used such an individual to infiltrate Sanchez’s network at the beginning of the investigation. That CW was murdered, and while the murder was later found to be unrelated to the instant investigation, that was not known until after the wiretap order had been issued. Furthermore, that CW had been dealing with Sanchez for two years before the investigation even began, and the investigators had no potential informant who could approach Sanchez or defendant without arousing their suspicions or thwarting the investigation.
Moreover, physical surveillance had been attempted in this case, and it aroused suspicion. On January 10, 2006, a video surveillance van was parked with investigators inside near the site of the CW’s three controlled purchases. It was abandoned after Sanchez’s sister approached the van, shook it, and attempted to look inside. Investigators also sought to rent an apartment near the site of the CW’s buys. However, they later learned that a maintenance man told people throughout the building that police had rented an apartment to conduct surveillance.
The record satisfies us that the police exhausted standard investigative techniques up to the point where there was a risk that the investigation would be compromised. The State thereby satisfied its burden of establishing that only through a wiretap order could they have garnered sufficient evidence to continue their investigation. Therefore, we find no error in Judge Donio denying defendant’s motion to suppress statements obtained through use of wiretap surveillance.
Defendant’s remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
1 On the same date he was also sentenced on one count of three other indictments, namely, distribution of a controlled dangerous substance and conspiracy to distribute a controlled dangerous substance. These three sentences were concurrent to each other for an aggregate sentence of nine years, which was ordered to run concurrently with defendant’s twenty-year sentence.
It goes from bad to worse for man facing charges in alleged assault on police
What started out as a domestic violence charge, ended in numerous charges that could land Michael Colombo in prison for quite some time. Colombo, of Hoboken was just going to be charged with two counts of aggravated assault with a deadly weapon, one count of burglary, and one count of simple assault in an alleged attack on a woman in Teaneck. However, when police attempted to arrest him, they allege that he lunged at them, punching and kicking two officers, as well as striking one in the head with a metal skillet, then biting him in the arm followed by an attempt to take his gun.
He was eventually subdued charged with one count of resisting arrest, one count of possessing a weapon for an unlawful purpose, one count of aggravated assault upon a police officer, one count of aggravated assault with a deadly weapon upon a police officer and one count of attempting to disarm a police officer. That last charge is a second degree offense. Needless to say, he is facing a ton of time here. Oddly enough, his bail is only $15,000 which is really low given the number of charges and the amount of prison time he is potentially facing.
Story is here.
Retired NJ State Trooper allegedly shoots at wife
Toms River police allege that Bruce Figular, a retired NJ State Trooper shot at his wife, but missed. His wife, who fled the home, did not have any injuries. Few details were released about the incident, but there were a few interesting details. One is that it took police at least 90 minutes to go into the house and arrest Figular which suggest some time of stand off and negotiation. After he was arrested, Figular was brought first to the hospital and then to the jail. This suggests he either had physical injuries or mental health issues.
He is charged with aggravated assault which, in this case, is a second degree charge. Attempted murder is not always charged in these shoot and miss cases as it can be difficult to proove that there was an intent to kill. I would also like to know if a restraining order was filed as they almost always are in these cases. If so, he needs a good attorney at the FRO hearing to question the wife to essentially depose her.
Maybe I’m biased, but I think it also helps to have an attorney that knows his (or her) was around family court as well as criminal court. While there is a possibility for his wife to get back on his side, there is just as much of a chance of a divorce. Having one attorney to handle both issues may not only save him a lot of money, but it may make the criminal case much easier to deal with.
As an attorney, my main focus would be on his mental health status at the time of the offense in addition to taking testimony from the wife at the FRO hearing. A good mental health defense and/or intoxication defense could be used to keep him out of prison.
Story is here.
Protective Sweep exception used to uphold denial of motion to suppress
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHNNIE DAVILA aka JOHNNY CHRISTOPHER
aka JOHNNIE CROSBY,
Defendant-Appellant.
_________________________________________________
Submitted November 6, 2008 – Decided
Before Judges Payne and Waugh.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 04-03-1040.
Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).
Paula T. Dow, Essex County Prosecutor,
attorney for respondent (Luanh L. Lloyd,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Following the denial by Judge Ravin of his motions to suppress evidence and bar the use of his confession, defendant Johnnie Davila entered a conditional plea of guilty to two counts of felony murder and one count of conspiracy to commit robbery in return for an offer of thirty years in custody with a thirty-year parole disqualifier.1 On appeal, defendant challenges the judge’s evidentiary rulings. He argues:
POINT I
THE RULING THAT POLICE ENTRY INTO THE APARTMENT AT 730 M.L.K. BOULEVARD WAS LAWFUL MUST BE REVERSED, AND THE PHYSICAL EVIDENCE SEIZED MUST BE SUPPRESSED.
POINT II
BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAIVED HIS RIGHT TO SPEAK WITH AN ATTORNEY PRIOR TO GIVING HIS STATEMENT, THE COURT’S RULING FINDING THE STATEMENT ADMISSIBLE WAS ERRONEOUS AND MUST BE REVERSED.
Judge Ravin found, for purposes of the motion, the following background facts:
[O]n November 13th, 2003, witnesses reported that white Jeep Cherokee with the letter “G” on the driver’s side, occupied by several young African-American males, approached 30 Lenox Avenue in the city of East Orange. The masked front passenger of the Jeep Cherokee approached victim [Shanfidine] Sutton and shot him. The . . . occupants of the Jeep Cherokee then fled the scene in that car. Sutton was taken to the hospital and pronounced dead.
A short time later, victim Alonzo Brown, age 15, was also shot and killed in an attempted robbery. Witnesses at the scene described the same car[] [being] used in the Sutton murder also occupied by several young African males. Witnesses claimed that the front seat passenger exited, demanded Alonzo Brown’s black leather jacket, and shot him. Alonzo Brown was pronounced dead at the scene.
Law enforcement located and recovered .40 caliber shell casings at both scenes. And a ballistics examiner later determined that both casings were fired from the same firearm, which was not recovered. Also, witnesses at the scene of the second shooting memorized a portion of the license plate number of the car.
Further investigation revealed that David Cataneo, the owner of the Jeep Cherokee, had reported it stolen a few hours prior to the first shooting. He also reported that he had left his Nextel cellular phone inside the Jeep. At 8:00 P.M. on November 13th, 2003, law enforcement recovered the car in front of 93 Alexander Street in Newark. The cellular phone, however, was not recovered.
On November 14, law enforcement obtained a communications data warrant for records of calls made to and from the Nextel phone. On November 15, investigators determined that, among other calls, eight calls had been made from the phone to 730 Dr. Martin Luther King Boulevard, apartment 1-G, in Newark during the period from November 13 to 15, the last having been made at 1:01 a.m.
Lieutenant John Melody, an employee of the Essex County Prosecutor’s Office assigned to the Homicide Division, testified at the suppression hearing regarding what then occurred. At approximately 11:20 a.m. on November 15, he and six representatives of the Newark and East Orange Police Departments traveled to the apartment to which the telephone calls had been directed. Melody knocked on the door, which was opened by a person named Jayaad Brown. Melody testified that he then told Brown that he was from the Prosecutor’s Office and asked, “can we come in?”
At that point [Brown] opened up the door for us. We stepped in. I believe at that point Investigator Sarabando along with Mike Chirico, the next two officers advised him that we were her[e] to investigate a homicide.
Melody stated that the officers were all dressed in plain clothes with their badges exposed. Melody had his hand on his weapon, but it was not drawn. He was unsure of the status of the other officers’ weapons.
Once Melody had entered, he “swung the doorway open” and surveyed the apartment, determining that no one else was visible, but noting that open doorways led to additional rooms on the right side of the apartment. Melody immediately proceeded to determine whether the other rooms were occupied, so that he could “secure” any persons found there and determine if any were armed. In the meantime, two other officers had secured Brown. Melody confirmed that, at the time, as the result of the recent murders, he was concerned for his own safety and that of the other officers.
As the result of his inspection, Melody discovered a black male named Shawn Upshaw in the rear bedroom and a substantial quantity of crack cocaine in a bag on a dresser in that room. Upshaw was taken into custody. Upon proceeding to the apartment’s second bedroom, Melody discovered defendant and a female in bed, and a cell phone on the mattress. Both were placed under arrest as the result of the discovery of narcotics in the other bedroom. By calling the number of the Nextel phone taken from the Jeep, Melody identified the phone on the bed as the one the officers had been tracing.
Once the narcotics had been seized, the apartment’s occupants had been arrested, and the telephone identified, Melody proceeded to obtain a warrant to permit a further search of the apartment. Various gang-related materials and other evidence were then seized. Thereafter, defendant gave a statement to the police in which he implicated himself and his co-defendants.
On cross-examination, Melody agreed that he had not obtained a warrant to search the apartment prior to going there because he didn’t think probable cause could be established. He denied that the officers had conducted a raid, maintaining his position that the entry into the apartment had been consensual.
In contrast to Melody’s testimony, Jayaad Brown testified that he had been in the apartment’s back bedroom when the police started banging on the door, announcing their presence, and demanding entry. Upon unlocking and opening the door, according to Brown, the officers “rushed the door” with guns drawn, causing Brown to jump back. Brown denied that the officers asked whether they could come in. Brown testified additionally that, upon entering the apartment, one or more of the officers made him “get down on the ground,” face down. Although Brown had been in the back bedroom with Upshaw, Brown maintained, after considerable equivocation, that he had no knowledge that drugs were in the apartment.
Following the hearing, written briefs were submitted by the parties. After considering them, the judge placed on the record his oral opinion denying the motions for suppression of evidence. In that connection, the judge found that Jihad Brown lacked credibility.
While testifying, he displayed a laissez-faire and jovial attitude that appeared designed to and, in fact, did elicit laughs from people in the courtroom with whom he appeared to be friends.
Also, Brown’s admitted friendship with defendants and familial relationship with defendant Johnnie Davila demonstrated to the court his interest and bias. Finally, Brown’s hesitation to answer questions concerning the narcotics found and seized by the officers and Shawn Upshaw’s connection to those narcotics further demonstrated his bias.
In contrast, the judge found Lieutenant Melody to be “absolutely and completely honest in terms of his tone, his demeanor and the content of what he said.” Accordingly, the judge accepted Melody’s testimony while rejecting that of Brown.
Addressing the substantive issues raised, the judge found that, although the officers did not have a warrant or probable cause to enter the apartment, their entry for investigatory purposes was consensual and properly conducted pursuant to State v. Padilla, 321 N.J. Super. 96, 108 (App. Div. 1999), aff’d, 163 N.J. 3 (2000). Further, the judge found the officers’ brief warrantless survey of the premises was justified as a protective sweep under decisions such as Maryland v. Buie, 494 U.S. 325, 335-36, 110 S. Ct. 1093, 1099, 108 L. Ed. 2d 276, 287 (1990) and State v. Smith, 140 N.J. Super. 368, 372 (App. Div. 1976), aff’d, o.b., 75 N.J. 81 (1977). The judge held:
In this case, upon entering the apartment at 730 Martin Luther King Boulevard, officers conducted a brief survey of the premises to ensure that the occupants of the dwelling were not armed. The police did not extend the survey beyond the scope necessary to secure their own safety. The totality of the circumstances presents an articulable reason for believing that there might be persons unseen in the apartment that posed a threat to the safety of the police.
Thos circumstances were:
1.) The police were investigating a ruthless double murder which occurred, in part, in Newark.
2.) The murders were committed with a gun.
3.) The murders occurred within the preceding 48 hours.
4.) The murders were committed by several African-American males.
5.) The gun used in the commission of the murders was missing.
6.) The apartment in question was in Newark.
7.) A cellular telephone connected to the murders was being used to call the apartment in Newark where the police were present investigating the double murder.
. . . In light of these facts, Lieutenant Melody’s concern for the safety of the officers and the action taken to ameliorate that threat were clearly reasonabl[e].
The judge acknowledged the defense argument that what had actually occurred constituted a raid. However, he rejected that argument, noting that it was well established that the subjective intent of the police officers has no significance in evaluating alleged violations of the Fourth Amendment, so long as the officers’ conduct is reasonable. In support of this conclusion, the judge cited to State v. Bruzzese, 94 N.J. 210, 219 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). “The proper inquiry for determining the constitutionality of a search and seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable without regard to his or her underlying motives or intent.” Ibid. The judge found the officers’ conduct to have been objectively reasonable.
The judge also rejected the defense argument that exigent circumstances alleged as a justification for the warrantless entry were impermissibly self-created, noting that the entry was not justified by exigency, but occurred as the result of Brown’s permission and that the police’s action was not tantamount to a search for evidence, but was instead a superficial check to dismiss a reasonable suspicion of danger and secure safety.
As a final matter, the judge upheld the seizure of the phone and drugs, which he found to have been in plain view and thus excepted from the warrant requirement by Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971).
On appeal from this decision, we affirm substantially on the basis of the well-reasoned opinion of Judge Ravin. We add only that the protective sweep exception to the Fourth Amendment’s warrant requirement was extensively analyzed by a panel of this court in a decision issued after Judge Ravin’s opinion was placed on the record. See State v. Lane, 393 N.J. Super. 132 (App. Div.) certif. denied, 192 N.J. 600 (2007).
In that case, following an armed robbery of a Strauss Auto store by multiple black individuals and the identification of two cars in the vicinity of the robbery at the time that the robbery occurred, the police located one of the vehicles, parked in a residential driveway. Defendant, who was working under the hood of the car when the police arrived, was taken to headquarters for questioning. However, one officer remained at the premises. After looking through a gate into the yard of the house and discovering a headband similar to that described as having been worn by one of the robbers, the officer entered the yard and conducted a protective sweep of the area, which disclosed an automatic rifle under a couch in a shed.
In considering whether the protective sweep in Lane was valid, we noted that in Buie the Supreme Court had defined a protective sweep as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers and others.” Lane, supra, 393 N.J. Super. at 151 (quoting Buie, supra, 494 U.S. at 327, 110 S. Ct. at 1094, 108 L. Ed. 2d at 281). Although Lane was not arrested, we determined that:
an arrest should not be the sine qua non of a legitimate protective sweep and that to hold otherwise would place undue importance on the particular facts in Maryland v. Buie and show too little regard for the important public policy of insuring police safety. As the Supreme Court has observed, it is “dubious logic” to conclude that “an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it.” United States v. Knights, 534 U.S. 112, 117, 122 S. Ct. 587, 590, 151 L. Ed. 2d 497, 504 (2001). Adhering to this approach, we agree with the logic of those federal decisions that have determined that the validity of the warrantless sweep does not turn on the officer’s possession of an arrest warrant or the right to arrest, but turns instead on the officer’s right to be in a location that generates a reasonable articulable suspicion that the area to be swept “harbors an individual posing a danger” to those on the scene. Maryland v. Buie, supra, 494 U.S. at 337, 110 S. Ct. at 1100, 108 L. Ed. 2d at 288.
[Lane, supra, 393 N.J. Super. at 153.]
We further found that a determination of the legality of a protective sweep required consideration of whether the sweep occurred in a home, the lawfulness of the police’s presence, and whether the police had a reasonable articulable suspicion that the area to be swept harbored individuals posing a danger to them. Id. at 154. In this regard, we noted the Court’s observation in Buie that:
[U]nlike an encounter on the street or along a highway, an inhome arrest puts the officer at the disadvantage of being on his adversary’s “turf.” An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.
[Lane, supra, 393 N.J. Super. at 154 (quoting Buie, supra, 494 U.S. at 333, 110 S. Ct. at 1098, 108 L. Ed. 2d at 285).]
In Lane, we determined that additional factfinding by the motion judge was required in order to resolve whether the seizure of the gun by the police officer had violated the Fourth Amendment. Id. at 156-58. We reach a different conclusion here. In the present case, we are satisfied that the police’s determination to go to the apartment to investigate the connection between its occupants and the murderers was both legal and reasonable, id. at 147, and that the judge’s conclusion that the police lawfully entered the apartment with Brown’s consent was based upon substantial evidence in the record, State v. Locurto, 157 N.J. 463, 470-71 (1999). We are further satisfied that the police acted in an objectively reasonable manner in determining to conduct a protective sweep of the premises. As Judge Ravin noted, a number of black males had recently performed two callously-inflicted felony murders, utilizing a gun. The murderers remained at large, and their weapon or weapons had not been recovered. And, as the result of the cell phone traces, there was a substantial reason to believe that the occupants of the apartment were somehow connected with the murderers. Further, upon entry into the apartment, it was clear that it was comprised of multiple rooms, the occupants of which could not be seen from the door. And finally, the sweep was limited in its scope and duration to a determination of whether additional persons were present on the premises. As Judge Ravin found, the drugs and phone seized during the course of the sweep were both in plain view.
Defendant additionally challenges the judge’s determination, following an additional hearing, to deny his motion to suppress the confession given to the police by defendant, in the presence of his mother,2 following the administration of Miranda3 warnings. In support of his position, defendant notes that there was no specific written indication on the Miranda warning form utilized by the police that he had knowingly waived his right to speak with an attorney before submitting to police questioning. Our review of the form, however, indicates that defendant initialed each of the individual rights accorded to him, and that both he and his mother signed the Miranda form. Moreover, defendant confirmed that he had been properly advised of his rights at the commencement of his confession, wrote on the form that the Miranda warnings had been “read out loud” to him, and placed his initials next to statements confirming that his mother was present when the warnings had been given and that he understood his rights. Under these circumstances, we decline to further address defendant’s argument, finding it to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
1 Defendant was charged along with co-defendants Wali Williams, Michael Whitfield and Laquan Dwight. All moved for suppression of evidence and participated in the hearing on that issue, as did Shawn Upshaw, who was charged with first-degree drug offenses in a separate indictment.
2 Defendant was sixteen years old at the time of the crimes.
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
April 16, 2009
Eluding conviction upheld
STATE OF NEW JERSEY,
Plaintiff -Respondent,
V.
JESUS ATURO COLON,
Defendant-Appellant.
____________________________
Submitted January 27, 2009 – Decided
Before Judges Parker and LeWinn.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-11-01099-I.
Robert J. De Groot, attorney for appellant.
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Peter DeRose, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Tried to a jury on April 10, 2007, defendant was convicted of second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2(b); and second-degree aggravated assault, causing serious bodily injury while fleeing, N.J.S.A. 2C:12-1(b)(6). On July 13, 2007, defendant was sentenced to two concurrent ten-year terms with an eighty-five percent parole ineligibility period on the second count.
On appeal, defendant raises the following issues for our consideration:
1. Defendant’s Right to Due Process of Law as Guaranteed by the Fourteenth Amendment to the United States Constitution and Art. 1 Par. 1 of the New Jersey Constitution was violated by the Prosecutor’s Misconduct. [Not Raised Below]
a. The Prosecutor’s summation expressing his belief that [Officer] Fidalgo testified credibly substantially prejudiced Defendant’s fundamental right to have the jury fairly evaluate the merits of his defense.
b. The Prosecutor’s summation implicitly expressing his belief that Defendant’s Witness was not credible substantially prejudiced [D]efendant’s fundamental right to have the jury fairly evaluate the merits of his defense.
2. Because The Jury Was Permitted To Infer That Defendant’s Conduct Created A “Risk Of Death Or Injury” If It Determined That His Conduct Violated Any of The Motor Vehicle Offenses Set Forth In Chapter 4 of Title 39, And Such Risk Is An Element Of The Second Degree Crime of Eluding, The Trial Court Committed Reversible Error When It Failed To Define And Delimit The Underlying Motor Vehicle Offenses. [Not Raised Below]
Having considered defendant’s contentions in light of the record and the applicable law, we affirm.
The trial evidence may be summarized as follows. Officer Paulo Fidalgo, of the Elizabeth Police Department, testified that on September 1, 2006, just after midnight, he and his partner, Officer Jean-Marie, were patrolling downtown Elizabeth in a marked police vehicle. While stopped at an intersection, Fidalgo “observed a vehicle cross [their] intersection at a high rate of speed.” Fidalgo was able to see the driver whom he described as a “[p]ossible Hispanic male with facial hair.”
Fidalgo and his partner pursued the vehicle and activated their lights after the vehicle “gained speed.” The vehicle “proceeded to pick up speed,” and “ran a red light on Elizabeth Avenue . . . .” Fidalgo estimated the vehicle’s speed to be “[r]oughly[] 50 miles [per] hour,” in a thirty-five mile speed zone.
After running the red light at Elizabeth Avenue, the vehicle “veered left . . . and appeared to have lost control and . . . then went into a ditch next to a utility pole right after the drawbridge on South First Street.”
Fidalgo and his partner exited their police car and “noticed that there was [a] smoke or fire condition coming from underneath the [disabled] vehicle.” There were three occupants in the vehicle, including the driver, and the officers “drew all the passengers to safety away from the vehicle.”
The individual in the driver’s seat was identified as defendant Jesus Colon. Fidalgo testified that defendant was the only occupant of the vehicle who had facial hair. When the officers first saw him, defendant was “[l]unged over the middle area between the driver’s seat and passenger’s seat[,]” with his legs “in the driver’s seat.”
Defendant’s vehicle sustained “[h]eavy front end damage and had fire damage done to it.” The fire department had to be called “to gain[] entry into the front door.”
Luis Benitez, who had been a passenger in defendant’s vehicle on the night in question, testified on behalf of defendant. Benitez has known defendant “since [they] were kids[,]” and described their relationship as being “like family . . . .”
On that night, Benitez was “walking down the block . . . a little intoxicated, because it was [his] birthday,” when he saw defendant “on the street and flagged him down.” Benitez asked defendant for a ride to a club. Benitez testified that defendant was not driving the vehicle; rather, a juvenile whose name he did not know was driving. Benitez stated that defendant “came out [of] the passenger’s side . . . .” Benitez entered the rear seat behind the driver and defendant re-entered the car on the passenger’s side.
As they drove on, Benitez stated that “the juvenile ate the light and the cops jumped on us.” The police chased the vehicle for “less than 15 minutes,” and then the car “crashed into a bridge and a light pole . . . .” Benitez testified that he injured his leg as a result of the crash.
During its deliberations, the jury asked for a readback of Officer Fidalgo’s testimony “with regard to the positioning of the three people.” The jury further requested a re-instruction on the definition of aggravated assault. Shortly after receiving that re-instruction, the jury rendered its verdict.
In his first argument on appeal, defendant contends that the prosecutor improperly vouched for the credibility of the State’s witness and implied to the jury that defendant’s witness, Benitez, had lied. Defendant refers us to the following statement in the prosecutor’s summation:
Think about this. Officer Fidalgo just doing his job. That is what he gets paid to do. No vested interest in this, not a family member, none of his family members were injured, none of his family members were charged with this.
Then you look at the witness, Mr. Benitez. He’s not really a disinterested third party. Oh, yeah, he’s close, extremely close to the defendant. I wonder.
At any rate, as I said earlier, I believe that Officer Fidalgo testified credibly and that each and every element of the two crimes charged, that you will hear from Judge Wertheimer, w[as] satisfied, and I ask that you, after hearing the charge, that you go back into the jury room and you find Jesus Colon guilty of the two charges.
At the outset, we note that this issue is raised as plain error as defense counsel raised no objection to the prosecutor’s summation. Therefore, we must determine whether these comments were “of such a nature as to have been clearly capable of producing an unjust result . . . .” R. 2:10-2. Based upon our review of the prosecutor’s entire summation, we discern neither of the improprieties claimed by defendant.
In the first two paragraphs quoted above, the prosecutor drew a distinction between Officer Fidalgo as a disinterested witness, as contrasted with Luis Benitez, who described his relationship with defendant as “like family.” In the third paragraph, the prosecutor briefly alluded to his belief “that Officer Fidalgo testified credibly[,]” and immediately proceeded to advise the jury that, in his view, “each and every element of the two crimes charged . . . w[as] satisfied . . . .”
Under these circumstance, we find defendant’s argument to be without merit. R. 2:11-3(e)(2).
Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action.
[State v. Timmendequas, 161 N.J. 515, 576 (1999) (citations omitted).]
We acknowledge the “long-standing rule” that it is improper for the prosecutor to inform the jury of his personal opinion of a witness’s credibility. State v. Wakefield, 190 N.J. 397, 440 (2007). In evaluating “‘the severity of the misconduct and its prejudicial effect on the defendant’s right to a fair trial[,]'” we will not deem such prosecutorial misconduct to be grounds for reversal of a criminal conviction “‘unless the conduct was so egregious as to deprive the defendant of a fair trial.'” Id. at 437 (citations omitted).
The trial judge charged the jury immediately following the prosecutor’s summation. Very early in that charge, the judge instructed the jury:
You, and you alone, are the exclusive judges of the evidence, of the weight of the evidence and . . . what the facts are in this case. Regardless of what [c]ounsel said . . . recalling the facts, it’s your recollection of the facts that must guide you in the final analysis as . . . the judges of the facts.
Under the circumstance, we conclude that the prosecutor’s brief statements that he “believed[d] Officer Fidalgo testified credibly[,]” and that he “wonder[ed]” about Benitez being “extremely close to the defendant[,]” did not rise to the level of “egregious” conduct sufficient to warrant reversal.
We next consider defendant’s contention that the trial court erred in its charge to the jury on second-degree eluding. Because defendant did not object to this jury instruction at trial, we once again consider his claim under the plain error standard. R. 2:10-2. Under that standard, “[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.” State v. Afanador, 151 N.J. 41, 54 (1997).
Pursuant to N.J.S.A. 2C:29-2(b):
Any person, while operating a motor vehicle on any street or highway in this State . . ., who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury of any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person’s conduct involves a violation of chapter 4 of Title 39 . . . .
The trial judge essentially followed the model jury charge for second-degree eluding. Model Jury Charge (Criminal), “Eluding an Officer” (2004). In his initial jury instruction, the judge charged the jury in accordance with the statutory language elevating the offense to second degree if “the flight or attempt to elude created a risk of death or injury to a person.” The judge made no mention of motor vehicle violations at this point.
Following a side bar discussion at the conclusion of the jury charge, the judge delivered the following additional instruction:
I, apparently, omitted a part of the charge on eluding. I want to read it to you now.
You may infer a risk of death or injury to any person if a defendant’s conduct in fleeing or attempting to elude the officer involved a violation of motor vehicle laws of the State, and it’s alleged this defendant’s conduct involved speeding, running a red light, etc., etc.
Defense counsel accepted this supplemental instruction as “[f]ine.”
We concur with defendant that the trial judge’s failure to charge the elements of the applicable motor vehicle statutes was in error. Under the circumstances of this case, however, we deem such error to be harmless. The evidence clearly established that defendant “created a risk of death or injury” by crashing his vehicle into a utility pole with such force that it sustained “[h]eavy front end damage and . . . fire damage . . . .” The fire department had to be called to open the front door. Officer Fidalgo observed defendant “[l]unged over the middle area between the driver’s seat and passenger’s seat[,]” with his legs “in the driver’s seat.” In addition, Benitez testified that he suffered a leg injury as a result of the crash.
On this record, we consider defendant’s reliance upon State v. Dorko, 298 N.J. Super. 54 (App. Div.), certif. denied, 150 N.J. 28 (1997), to be misplaced. In that case, the defendant’s act of eluding consisted solely of motor vehicle violations such as speeding and running through stop signs and a red light; in addition to eluding, the defendant was charged with reckless driving. Id. at 56.
By contrast here, defendant engaged not only in speeding and running a red light, but in much more serious conduct that caused his vehicle to crash, with resultant injuries to at least one passenger. It is significant that these same facts gave rise to a related charge of second-degree aggravated assault in count two of the indictment, as contrasted with the related reckless driving charge in Dorko.
Applying, as we must, the plain error standard to this argument, we conclude that defendant has failed to demonstrate that the claimed error was “sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.” State v. Macon, 57 N.J. 325, 336 (1971).
Affirmed.
April 14, 2009
Tonacchio Law LC 