Robert Higbee trial on May 19th
The same witness was on the stand all day and didn’t even finish. TruTv stated that the most damaging testimony against Higbee was the fact that Higbee should not have went through the stop sign. As a 7 yeard old may say, Duh! The issue here is that Higbee didn’t see the sign, not that he saw it and said, screw it, I’m going for it. Thus, I don’t see how that testimony amounted to anything.
On the other hand, it seemed like Higbee’s attorney, William Subin, scored a lot of points on cross. He did a great job in focusing on the fact that there were any number of reasons for “someone” to not see the stop sign. The testimony got rather complex at times and I am simplifying this. Now if the Prosecutor is smart, he spends most of his re-direct tearing down this testimony by getting him to say that while “someone” could be distracted by this, that or the other thing, he cannot testify that Higbee was in fact distracted by anything. However, Mr. Subin already took care of some of this by getting the witness to indicate that he didn’t even investigate Higbee’s perception, distractions, etc.
The bottom line is, this cross was the most important so far for the defense.
Man gets 13 years for DWI death of 88 year old
While this wasn’t my case, I did work on it as my firm represented the client. It was a tough case as the case was stacked against the client. Nevertheless, we did a great job by getting the plea down. After all, the client killed one person and seriously injured another. Since he already had 18 months in jail, he should get out of prison in about 8 years or less.
This is the type of case where we really don’t make any money because we wind up doing 3 times the amount of work than what we are paid for. However, when it comes to criminal defense, you set a fee and after it is paid, you forget about whether you were paid enough to fight for the client. We turned this case upside down, reviewed 1000’s of pages of documents, filed over a dozen motions and did a ton of research.
In the end, the client thought that it would be best to accept this deal. If he went to trial, he would have had to spend more time in jail to wait for a trial while he was risking a lot more time if convicted. I’m really happy we can get this deal for him.
Story is here.
Robert Higbee trial on May 18th
I feel sorry for the jury today. They sat through hours and hours of testimony from only one witness and they didn’t even hear any cross yet! The witness on the stand today was the accident reconstruction expert. I understand that there is some foundation evidence that the prosecutor has to get into, but seriously, today was painful. It was also cut short by a family issue with one of the jurors.
This was a big break for the defense. The jury will likely forget most of what they heard today and the defense can prep for cross tomorrow. While this jury can take notes, TruTv has reported that they have not used their notepads that often. One of my biggest issues with the defense in this case is that Higbee’s attorney matches the prosecutor’s tone. While you don’t want to come across like a jerk, you need some passion in your voice.
Of course, some attorneys are just a certain way and you don’t want to be something you are not. It would be nice if another attorney would do some cross from time to time. That attorney can use a different style which will really have the jury pay attention. After hours of boring testimony, a half hour or so of quick, surgical-style cross with a lot of passion would go a long way with the jury.
Firefighter charged with sexual assault
James R. Serfass, a lieutenant with the Upper Black Eddy Fire Company and the son of the station’s chief, was charged with second-degree sexual assault and fourth-degree criminal sexual contact of a 14 year old girl. Police were called by the girl’s father about activity that occurred two days prior. When the officer was at the house taking a report, Serfass showed up to apologize. He was arrested on the spot.
Based upon the charges, I can make a guess as to what took place. I am sure he made a statement as he was ready to apologize to the father. If this case can be handled quickly by a good attorney, Serfass should be able to avoid prison.
Story is here.
Seven charged in 1997 murder
I always like these old cases from a defense stand point. Although there is no explanation as to why Phillip E. Wylie, 34, of Washington Avenue, Asbury Park; Cedric O. Smith, 37, of Jackson Street, Freehold; Sean D. Harris, 36, of Asbury Park Village, Asbury Park; Darren K. Sims, 32, of Boston Way Village, Asbury Park; Alphonso T. Edwards, 31, New Street, Asbury Park; Antonio E. Grant, 30, of Third Avenue, Asbury Park and a seventh defendant were charged 12 years after the death of Andre Williams of Asbury Park it certainly seems interesting. There are going to be many witnesses that forget what they saw and heard which is great from the defense side.
Whether or not this was a murder was unknown until 2006 when Monmouth County detectives developed some new information. The investigation picked up and something led authorities to charge seven people in the alleged slaying. As always, with seven people you have to be careful that someone is going flip if that hasn’t happened already. One person flipping is easy to deal with but three or four can be tough. Otherwise, the State will need some great evidence to put together a murder case that will be probably 15 years old by the time it actually gets to trial.
Story is here.
How to survive probation in New Jersey
I’ve added an articles section to the blog. I like to help people and educate them. When I see a problem, I try to figure out how to fix it. Violating probation in New Jersey is rather easy to avoid but many people each year find themselves in court on a VOP charge. I wrote an article that should eliminate 95% of all VOPs if the suggestions are followed. More articles will follow in the weeks and months ahead. As always, if you have any questions, don’t hesitate to call me.
Cops catch alleged snuggie wearing thief
Nothing exciting about this story, just rather funny. Police in Newton, NJ arrested Brandon Ryzner-Meredith for allegedly trying to break into a grocery store. Witnesses reported that he was wearing some type of trench coat. However, when police came, they found him wearing a dark blue snuggie. Police allege that he was using the snuggie to conceal himself. He was charged with criminal mischief, criminal attempt of burglary and possession of burglar’s tools.
Story is here.
Quick thoughts on Robert Higbee trial for May 13th
Not much happened on Wednesday due to various delays. The State Trooper that testified, Anthony Mertis investigated the crash. The major aspect of his testimony was the stop sign and whether or not it was illuminated. I missed most of the cross due to TruTv’s schedule, but I did catch some.
It seems like Higbee’s attorney, William Subin did focus on the fact that the video shown to the jury which depicts the stop sign was overly illuminated due to the Trooper Mertis’ car and the lights that he had on. Mr. Subin also brought out the fact that Trooper Mertis was aware of other accidents at the same location. In addition, Mr. Subin established once again that Higbee was following proper protocol when he was attempting to go after the speeder.
All in all, I’d have to give the win to the defense for Wednesday’s brief proceedings.
Judge’s scenarios were improper, but there was no objection
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELBIO DONOFRIO,
Defendant-Appellant.
___________________________
Before Judges Wefing and LeWinn.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-03-0286.
Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for the respondent (Peter DeRose, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Tried to a jury along with co-defendant Stanley Jacques, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1. He was sentenced to a term of five years of incarceration with an eighty-five percent period of parole ineligibility. Defendant appeals his conviction and sentence. For the reasons that follow, we affirm.
The factual background may be summarized as follows. Carlos Gabriel-Baez testified that on December 21, 2005, at approximately 6:00 p.m., he was riding his bicycle in the area of Salem Avenue in Elizabeth. Three individuals approached him, hit him, emptied his pockets, ripped his earring from his ear, threw him to the ground, removed some of his clothing and kicked him in the ribs and head. The assault lasted “[a]bout five, ten minutes.” Eventually, Baez was able to escape and ran home. When Baez arrived at his residence, he encountered police officers who had one of the individuals in their patrol car. The officers “took [Baez] to see the other one that was arrested.” Baez recognized these individuals as two of the three people who had assaulted him.
In court, Baez identified defendant and Jacques as those two individuals. When asked if he had ever seen the defendants before, Baez answered, “I was working on that same street and I constantly have been going around there and I had seen them before.” On cross examination, Baez stated that he “used to work in a tire place in that street and [he] used to see them coming up and down that street.”
Baez testified that he was “scared” during the assault because he didn’t know “what [was] going to happen.” He further stated that he had pain in his ribs and permanent scarring, as well as pain in the earlobe that had been ripped when his earring was taken.
Elizabeth Police Officer Paul Camarinha testified that, as a result of information he received at approximately 6:00 p.m. on the date in question, he responded to an area in Elizabeth where he encountered and detained defendant. The officer transported defendant to Baez’s residence.
Elizabeth Police Officer James Szpond testified that he and his partner, Officer Luis Garcia, responded to the report of an incident at approximately 6:06 p.m. He observed three males who “began walking away from the area . . . very quickly[,]” when “it appeared that they noticed the squad car[.]”
Szpond and his partner exited their vehicle and detained one of the individuals, co-defendant Jacques, who was holding a set of keys in his hand. Szpond testified that, at the place where the three individuals were first spotted, the officers found “a bicycle and a pile of clothing.”
Baez arrived at the scene and identified Jacques as one of the individuals who had assaulted him. He also identified the keys, bicycle and clothing as his property, which was then released to him.
Defendant testified on his own behalf. He acknowledged that he was on Salem Avenue in Elizabeth at approximately 6:00 p.m. on December 21, 2005. Defendant stated that he was “by [himself]” and that co-defendant Jacques was “[u]p the street.” Defendant stated that he was on the street at that time selling drugs. Defendant then encountered Baez, whom he knew prior to that occasion.
When defendant was asked how he knew Baez, he responded, “Selling drugs . . . .” The prosecutor immediately objected. The judge excused the jury and conducted a voir dire. Defense counsel argued that defendant should be permitted to give this testimony to contradict Baez’s testimony that he only knew defendant from seeing him around the neighborhood. Defense counsel argued: “This is what these guys do and this is how they all know each other and it . . . defuses the babe in the woods innocence the victim tends to portray, especially when you look at the confusing and conflicting testimony he’s given in the inconsistent statements.”
Defendant testified further during the voir dire that Baez had approached him earlier in the day on December 21, 2005, and had purchased two “bottles” of crack cocaine for twenty dollars. Defendant testified that “[Baez] . . . came back around 6 o’clock on a bike[,]” to purchase more crack cocaine. Defendant “handed [the drugs] to him. [Baez] . . . grabbed [the drugs] out of [defendant’s] hand and started taking [them] away on the bike.” As Baez rode off, defendant “grabbed his hand, tried to get [the drugs] back. That is when [they] began tussling when [Baez] was on the bike.”
At the conclusion of the voir dire, the trial judge ruled that defendant would be permitted to testify about his drug transaction with Baez. The judge was “satisfied that the prejudicial impact [did] not outweigh[] the probative value . . . .”
Defendant then resumed testifying before the jury, and stated that he had sold drugs to Baez on at least three or four prior occasions. He further testified, as he had on voir dire, that Baez approached him earlier in the day on December 21, 2005, and purchased crack cocaine for twenty dollars, and that Baez returned at 6:00 p.m. on his bike to purchase additional drugs. Defendant described how Baez grabbed the drugs out of defendant’s hand and tried to take off on his bicycle without paying, and how defendant and Baez then “began tussling while he was . . . still on the bike.” Defendant stated that Baez “tried to steal” the drugs from him, and “tried to take [them] out of [defendant’s] hand and take off on his bike.”
Defendant testified that Baez “got off the bike and [they] began pushing and shoving. After that . . . is when the fight started.” Jacques and a third individual “named Marcus that [defendant] knew from . . . around the neighborhood[,]” joined in the fight.
Defendant admitted punching and kicking Baez, but denied taking anything from him. Defendant testified that Baez was “fighting back and yelling . . . all kinds of stuff in Spanish.”
When defendant saw a marked police car, he “[s]tarted walking away[,]” because he “was selling drugs.”
On appeal, defendant raises the following arguments for our consideration:
POINT ONE
THE COURT’S ACCOMPLICE LIABILITY CHARGE BOLSTERED THE STATE’S CASE AND DENIED [DEFENDANT] A FAIR TRIAL BECAUSE IT WAS NOT TAILORED TO THE FACTS OF THE CASE. (Not Raised Below)
POINT TWO
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT SENTENCING [DEFENDANT] TO A DOWNGRADED SENTENCE
In a pro se supplemental brief, defendant raises the following additional argument:
[THE] JURY ERRED WHEN IT CONVICTED DEFENDANT . . . OF ROBBERY BASED ON THE TESTIMONY OF CARLOS BAEZ.
Having considered these arguments in light of the record and the applicable law, we find them to be without merit.
Defendant’s contention that the trial judge erred in charging the jury on accomplice liability is raised as plain error, as defendant lodged no objection to this instruction at trial. Pursuant to that standard, defendant must demonstrate that the error was “of such a nature as to have been clearly capable of producing an unjust result . . . .” R. 2:10-2. Where, as here, there was a failure to object, we may presume that counsel considered the instructions adequate as given. “It may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment.” State v. Macon, 57 N.J. 325, 333 (1971).
Defendant’s specific complaint regarding the accomplice liability charge is not addressed to the instructions on the elements of such liability. Rather, defendant challenges three “scenarios” that the judge gave the jury, which were intended to be examples of accomplice liability. The specific language at issue is as follows:
Let me now explain how accomplice liability may apply to the testimony in this case. And in recalling this testimony, remember, I’m just giving you — I’m not saying that this is how you should find, but I’m giving you possibilities how you could apply this accomplice liability to the testimony in this case.
If you found, for example, the testimony of Carlos Baez to be credible and believable and you found the defendant Donofrio’s testimony to be not credible in only he was the initial person to have contact with Baez, you may conclude that Donofrio intended to commit a robbery, but that Jacques joined in only in assaulting the defendant.
Under the same scenario you may find that Baez was not detailed enough as to what each defendant did, but if the testimony of the police officer, that Jacques was found with the keys, convinced you that it was only after the assault was long concluded that Jacques decided to take Baez’ property. In short, there are a large variety of different findings you could make depending upon your findings as to the defendants in this case and as to the mental state you find of each defendant.
You m[a]y find the testimony of Baez to be credible and believable and find that they both agreed to commit the offense of robbery. These are all possibilities that you could find, depending upon your findings of fact and your findings as to the mental state of the defendants.
Early in its deliberations the jury requested re-instruction on accomplice liability. In re-charging the jury, after addressing the elements of accomplice liability, the trial judge reiterated his “scenarios” as follows:
For example, if you found the testimony of Carlos Baez to be credible and believable and you found Donofrio’s testimony to be only credible in that he was the initial person to have contact with Baez, you may conclude that Donofrio intended to commit a robbery, but that Jacques joined in only in assaulting [Baez] or that Jacques did not join in the assault upon Baez, but decided only after the assault to take advantage of the situation and to deprive Baez of his property. You might also conclude that Donofrio engaged in a physical altercation with Baez, but only to regain his crack cocaine and, therefore, committed no offense or, at worst, a simple assault, but that Jacques seeing the altercation joined in it with the intent to deprive Baez of his property and he is, therefore, guilty of robbery by his own conduct.
Immediately after giving these examples, the trial judge further instructed the jury as follows:
Now, I’m not suggesting, in any way, that you make those findings. I’m just trying to give you examples of how the testimony — how the verdicts could change depending upon your findings as to the mental state of each individual and whether or not there actually was a robbery or an altercation, as described by Carlos Baez.
Remember, you are the sole and exclusive judges of the facts and of the credibility of the witnesses, and based upon your findings you are entitled to believe all of a witness’ testimony, part of it or none of it. In short, there are a variety of different verdicts that you could return, but they depend upon your findings not only as to each defendant’s conduct, but also their mental state.
Defendant argues that these “scenarios” are “problematic” because they (1) “do not support the defense theory that both defendants engaged in assault but not robbery”; (2) “they substantiate the credibility of the [S]tate’s witnesses only, and not the [defendant]”; and (3) “they suggest that the option of acquittal was merely an afterthought that the court was obligated to provide, as opposed to a viable option worth considering.”
We acknowledge that these “scenarios” were extraneous and unnecessary elements of an otherwise proper jury charge on accomplice liability. We conclude, however, that these “unchallenged” comments did not rise to “plain error clearly capable of producing an unjust result.” State v. Afanador, 151 N.J. 41, 54 (1997).
In his initial charge, the judge instructed the jury that:
You, and you alone are the sole and exclusive judges of the evidence, of the credibility of the witnesses and the weight to be attached to the testimony of each witness. Regardless of what [c]ounsel says or what I may say or have said in recalling the evidence in this case, it is your recollection of the evidence that should guide you as judges of the facts.
Moreover, as noted earlier, the judge expressly prefaced his “scenarios” to the jury with the disclaimer that he was offering them “possibilities” as to how the jury “could apply . . . accomplice liability to the testimony in this case.” The judge expressly told the jury that he was not “saying that this [was] how [the jury] should find . . . .”
When the judge re-charged the jury in response to their question, he reiterated that he was giving them “examples” only; and the judge repeated the instruction as to the exclusive role of the jury in weighing the evidence and assessing credibility.
Under these circumstances, we consider the comments challenged here to be mere surplusage that do not rise to the level of plain error. R. 2:10-2.
Defendant next contends that the trial judge erred in failing to sentence him to a term of incarceration appropriate to a third-degree crime.
N.J.S.A. 2C:44-1(f)(2) provides:
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.
[(Emphasis added).]
Here, the trial judge found that aggravating factors number two, “[t]he gravity and seriousness of harm inflicted on the victim[,]” and number nine, “[t]he need for deterring the defendant and others from violating the law” applied. N.J.S.A. 2C:44-1(a)(2) and (9). The judge found three mitigating factors applicable: number seven, “[t]he defendant has no history of . . . criminal activity[,]” number nine, “[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense,” and number ten “[t]he defendant is particularly likely to respond affirmatively to probationary treatment[.]” N.J.S.A. 2C:44-1(b)(7), (9) and (10).
The trial judge found that, notwithstanding the substantial support defendant received from family and friends, “what [defendant] was to them was not the same person he was on the street, even by his own admission . . . . [S]o the good things they say about him are somewhat mitigated by his own admission.” The judge also found that defendant did not admit his guilt or take responsibility “at this time[,]” but stated that he did not “hold that against [defendant] . . . .”
In sum, the trial judge was not “clearly convinced” that the three mitigating factors “substantially” outweighed the two aggravating factors and, therefore, the judge did not sentence defendant to a third-degree term. N.J.S.A. 2C:44-1(f)(2). Our review of the record convinces us that the judge’s analysis of the aggravating and mitigating factors was “based upon competent credible evidence in the record . . . .” State v. Roth, 95 N.J. 334, 364 (1984). We note that the State requested a sentence of seven years. The judge nonetheless sentenced defendant to a term of five years, which is at the bottom of the range for a second-degree offense.
Finally, we reject as wholly without merit defendant’s contention in his pro se supplemental brief that the jury erred when it convicted him based on the testimony of Baez. The trial judge granted defendant’s request to testify as to the nature of the relationship between defendant and Baez, namely that Baez had purchased drugs from defendant on several occasions and that a drug transaction was the basis for the incident on the night of December 21, 2005. The credibility of that testimony was within the province of the jury to assess. R. 2:11-3(e)(2).
Affirmed.
Court holds that drugs were in plain view
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LOUIS STEWART,
Defendant-Appellant.
_________________________________
Before Judges Payne and Waugh.
On appeal from Superior Court of New Jersey, Law Division Cumberland County, Indictment No. 06-10-996.
Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).
Anne Milgram, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).
PER CURIAM
Defendant Louis Stewart appeals his conviction, following a guilty plea, for second-degree possession of cocaine with intent to distribute. N.J.S.A. 2C:35-5(a)(1), -5(b)(2). Prior to entering the plea, Stewart moved unsuccessfully to suppress evidence seized as the result of a warrantless search at 105 Bank Street in Bridgeton. On appeal, Stewart contends that the motion should have been granted and the evidence suppressed. We disagree and affirm.
I
We discern the following facts from the record made during the evidentiary hearing on the motion to suppress, which was held on August 10 and 16, 2007.1 Detective Louis Santiago of the Bridgeton Police Department was on duty on June 10, 2006. At that time, Santiago was with the Anti-Crime Team (ACT), which is a “plain clothes assignment dealing with street level narcotics and quality of life issues.” Santiago was working the night shift. His assigned area was the 100 block of Bank Street. Santiago testified that in June 2006, the 100 block of Bank Street was “laced with illicit narcotic activity, prostitution, [and] robberies.”
Santiago and other members of the unit walked through an alleyway towards 110 and 112 Bank Street. Once they arrived at that point, they began to watch 105 Bank Street, which they knew to be the residence of Gloria Hicks. Santiago was familiar with Hicks from previous calls to her residence. Three weeks prior to the night in question, Hicks had come to the police station and reported that she had been assaulted by James McNair at her home. She told the officers that she had a bad drug habit and that “things were getting out of control in her residence.” Santiago told Hicks that he would from time to time check up on her to make sure that everything was alright at her home.
Santiago positioned himself across the street from 105 Bank Street and observed it for fifteen to twenty minutes. He saw people going into 105 Bank Street through the front door and, on occasion, the back door. After a very brief time, the individuals would leave Hicks’s residence and go across the street to 108 Bank Street. They would remain at 108 Bank Street for a few moments and then return to 105 Bank Street. They would knock and, when the door opened, enter 105 Bank Street.
After watching the activity described above, Santiago and other members of the team crossed the street to observe 108 Bank Street. After making further observations, they went to the back of the house directly across from 110-112 Bank Street – one house north of 105 Bank Street. From that location Santiago watched the back of 105 Bank Street and observed “a continuation of the pedestrian traffic in and out of the residence.”
According to Santiago, the activities he observed were consistent with drug dealing. Santiago decided to go to the back door, knock, and attempt to speak with Hicks. However, as Santiago and Detective Kirsten Loew got to the landing of the back door, Bobby Taylor and McNair approached the back door from the front of the house. As Taylor stepped onto the landing, he looked over and saw Santiago, who was himself approaching the landing. Santiago described Taylor’s reaction as follows:
He looked at us, his eyes opened up and he stepped back, and he began to mumble under his voice. I couldn’t understand what he was saying. Bobby Taylor looked at us, and again, he had an expression of shock on his face.
Without knocking, Taylor opened the back door and walked into the house. The door stayed open, but McNair stood on the landing without entering the house. Santiago walked up to the door, stood at the doorway, and looked into the house, but did not cross through the doorway at that point.
As Santiago was approaching the doorway, he had observed people sitting in the living room. Once the back door was opened, he was able to see the range, the kitchen sink, and a counter. Santiago saw a plastic bag and a scale on the counter. He saw green vegetation, which appeared to be marijuana, inside the bag.
There were eight people in the living room, with Stewart and Howard Russell sitting near the scale and the marijuana. Russell was closest to the marijuana, and Stewart was to his right. At that point, Santiago was less than ten feet from the counter top and two or three feet from Stewart and Russell.
Loew asked Santiago: “[W]hat are they doing over there?” When Santiago looked over toward Stewart and Russell, the two men were fumbling with a clear plastic bag. Santiago likened their motions to a game of hot potato – neither man wanted to hold the bag. Stewart eventually ended up with the bag, which he then threw behind the seats.
Santiago was familiar with both Stewart and Russell. Santiago also knew Taylor from a prior, drug-related offense. Based upon what Santiago saw Stewart and Russell doing with the plastic bag and his knowledge about the neighborhood and the house, Santiago believed that they were trying to get rid of drugs. Santiago made these observations within seconds of being at the door of the house.
After making his observations, Santiago and other members of his team entered the house and handcuffed both Stewart and Russell. The plastic bag handled by Stewart and Russell was found to contain crack cocaine.
On August 16, 2007, Judge Timothy G. Farrell denied the motion to suppress. After finding Santiago’s testimony credible and reciting the facts adduced at the hearing, Judge Farrell gave the following reasons for denying the motion.
When law enforcement officers execute a valid search or seizure of an individual, any contraband located in plain view may be seized. Arizona v. Hicks, 480 U.S. 321, [107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987)]; Payton v. New York, 445 U.S. 573, [100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)]. The initial intrusion by the police must be lawful. In other words, it must be justified by a warrant or recognized exception to the warrant requirement. The observation of the item must be made from a permissible vantage point; that is the officers involved must have a right to be where they are when they perceive the existence of the evidence.
There are two additional requirements that have to be satisfied for the plain view exception to apply. First, the officer [] has to discover the evidence inadvertently, meaning that he did not know in advance where the evidence was located, or intend beforehand to seize it. Next, it has to have been immediately apparent to the police that the items in plain view were evidence of a crime or contraband, otherwise, subject to seizure. Coolidge v. New Hampshire, 403 U.S. 443, [91 S. Ct. 2022, 29 L. Ed. 2d 564] (1971); State v. Bruzzese, 94 N.J. 210, 236-37 (1983)[, cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)]; State v. Padilla, 321 N.J. Super. 96, 109 (App. Div.), [certif. denied, 162 N.J. 198 (1999)].
The immediately apparent language should not be construed to mean that the officer knew that certain items were contraband, or evidence of a crime. It is sufficient that the police officer, from a permissible vantage point, has probable cause to believe that the item observed was contraband, or evidence. Bruzzese, [supra, 94 N.J.] at 236-37.
Here the State suggests that the officers had the right to be where they were, because it was an area known as the curtilage part of the property where members of the public were permitted to be. Curtilage is land adjacent to a home and may include walkways, driveways, and porches. State v. Johnson, 171 N.J. 192, 208-09 (2002). Whether the fourth amendment safeguards an area of curtilage depends on a consideration of various factors, including whether the area is included within an enclos[ure] surrounding the home, the nature of the uses to which the area is put, the steps taken by the resident to protect the area from observation by people passing by. Again, that would be Johnson, [supra, 171 N.J. at 208-09,] as well as United States v. Dunn, 480 U.S. 294, 301, [107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334-35] (1987).
An area within the curtilage to which the public is welcome, such as a walkway leading to an entrance to a home, is not afforded fourth amendment protection, because the resident has given . . . implicit consent to visitors to approach the home from that area. Again, that would be Johnson, [supra, 171 N.J.] at 209.
In other words, when a law enforcement officer walks to a front or back door for the purpose of making contact with a resident, and reasonably believes that the door is used by visitors, he is not unconstitutionally trespassing on that property. Again, Johnson, [supra, 171 N.J.] at 209.
Here, I find that the officers suspected something was afoot in the area of Ms. Hicks’s home, for two reasons, she told them, not on that particular night, but that it was an ongoing problem, and from their experience in the area. I believe Officer Santiago testified today that as part of the ACT he had gone to this home several times, although they had not found any drug transactions at that point, he had been involved in investigations . . . which dealt with drug usage.
. . . [A]nd I agree with [defense counsel], and I don’t think the State disputes it, there was no probable cause to get a search warrant at the time the officers went to the 105 Bank Street. I would suggest there wasn’t sufficient evidence to establish probable cause by seeing people come and go, even with the experience of the officers as to what was going on by the length of time it was taking each person to be in the home, how they were acting, as well as their experience that this was a high drug, or high crime area.
But, I would suggest that it was certainly sufficient evidence which would permit them to investigate further. When you add to that the request of Ms. Hicks for them to keep an eye on her home, I would suggest that the officers — based on that request — had every right to go knock on her door. But, even if we take that out of the equation, I find that [] their observations establish that the rear doorway of 105 certainly fit within the public use exception to the protections of the fourth amendment, particularly the night in question. They observed numerous folks coming in and out of 105 Bank Street on the first floor through the doorway, which was eventually approached by Officer Santiago. So, I find that he had a legal right to approach the house and step up onto the porch.
[Defense counsel] suggests that there was a major discrepancy between the police report and Officer Santiago’s testimony, because in the report the officer testified that he was “in the doorway,” when he saw the suspected marijuana. I don’t find any such inconsistency. To me, common usage of the phrase, “in the doorway,” basically means in the area of the doorway. It could be on either side of it. It could be in it. And, I don’t find any inconsistency to suggest that the officer meant, when he wrote the report, that he [had] actually stepped up and [was] standing in the threshold.
I find the officer’s testimony as to where he was located to be credible, and I find that what he observed through the doorway meets the plain view exception. I find that the law enforcement officer had a right to be where he was. I find that what he saw was inadvertent. I acknowledge that the officers had a hunch that there was something going on and that this was an area where drug transactions occurred on a regular basis. But, I find nothing in the record to suggest that they knew what they were going to find when they knocked on the door, which is what Officer Santiago indicated that he intended to do.
Likewise, I find that what he saw was [] immediately apparent as being contraband, [] or evidence, with regards of the sale of a controlled dangerous substance, and that he had probable cause to believe that the marijuana and the scale were evidence of a crime. Thus, I find that the officers had the right to then enter the structure once they saw the evidence in plain view.
Now, [defense counsel] argues that this was a police-created exigency, as prohibited in State v Hutchins, 116 N.J. 457, 460 (1989). . . . I find that [] the fact pattern in this case is markedly different than the fact pattern in Hutchins. Our Supreme Court and other appellate courts have recognized that the mere fact that police announce their presence or show themselves does not create an exigency. That’s not a police-created exigency, because if it was, every time the police were present some place they would be creating the exigency and therefore there would be no exception.
What happened in Hutchins is, the police had a tip that somebody was going to be selling drugs in the house, and they went and knocked on the door, and someone, the occupant, came to the doorway, and he had something in his hand, but they couldn’t see what it was, they just had a hunch that it was CDS. And, when they wanted him to show them, or to answer questions, he proceeded to go back into the home, which he had every right to do.
The police then followed him into the home and basically forced him to produce what he had [in] his hand. That’s not at all what we had here. I find that the fact that the police were surveilling the location because they suspected something, is not a police-created exigency, and when they get to the doorway, they didn’t have to do anything except look. And, when they look in the doorway, where []I believe it was Taylor had entered[,] what they saw at that point was in plain view. So, I find that the prohibition announced by the New Jersey Supreme Court in Hutchins does not apply here.
The State argues that once the officers saw what they saw, there were exigent circumstances for them to enter the home and secure the evidence. And, I agree. This is not the kind of case where they could have secured the house, waited for a warrant, because at that point that would suggest that they did have probable cause. The house was filled with people. Entering the house to secure the people would have created the same problem as entering the house to secure the evidence.
And, I find, as is often the case in drug related cases, that this is a case where destruction of evidence was an issue. . . . I don’t find that Mr. Stewart, or Mr. Russell, had attempted to throw [] what they had in[] their hands into a toilet and flush it, or to throw it out the window, or to pass it to someone who was running out the door. But, what we have here is an apartment, or a house, that’s got at least eight people [in] it when the police arrive.
They have plain view evidence of suspected marijuana and scales. I would suggest that [] what they see Mr. Stewart and Mr. Russell doing would cause a reasonable officer to believe that what they were passing back and forth, and trying to hide, was contraband, and there was a need to secure it.
On that same date, August 16, 2007, Stewart accepted a plea offer from the State. In exchange for entering a plea of guilty to count two, second-degree possession with intent to distribute cocaine, the State agreed to recommend that he receive a sentence of five years, with a two-and-one-half year period of parole ineligibility. Judge Farrell accepted Stewart’s conditional guilty plea, R. 3:9-3(f), finding that there was a sufficient factual basis to do so.
On October 19, 2007, Judge Richard Geiger imposed the recommended sentence, together with all mandatory fines and penalties. Stewart does not challenge the sentence on appeal.
This appeal followed.
II
Stewart raises the following issue on this appeal:
DEFENDANT’S MOTON TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE DRUGS WERE THE FRUITS OF AN UNLAWFUL ENTRY INTO THE HOUSE. AS THE DETECTIVE MADE HIS “PLAIN VIEW” OBSERVATION FROM A CONSTITUTIONALLY PROTECTED AREA OF THE HOUSE, NAMELY THE CURTILAGE, AND THE SEARCH OF THE HOUSE WAS WITHOUT A WARRANT, THE DRUGS SEIZED WERE “FRUITS OF THE POISONOUS TREE” AND MUST BE SUPPRESSED.
Having reviewed the record, Judge Farrell’s thoughtful opinion denying the motion to suppress, and the arguments raised in the briefs, we find Stewart’s appellate arguments to be without merit and not warranting extended discussion in a written opinion on appeal, R. 2:11-3(e)(2), and affirm essentially for the reasons set forth by Judge Farrell in his oral opinion. We add only the following.
Judge Farrell’s findings of fact, as to which our scope of review is “extremely narrow,” were fully supported by the evidence adduced at the hearing. State v. De La Paz, 337 N.J. Super. 181, 190 (App. Div.), certif. denied, 168 N.J. 295 (2001). Although a trial judge’s interpretation of the law is not entitled to such deference, ibid., we find that Judge Farrell correctly applied the law with respect to “curtilage,” as outlined in State v. Johnson, 171 N.J. 192, 208-09 (2002), in determining that Santiago did not require a warrant to go onto the back porch of 105 Bank Street.
Santiago had been asked by Hicks to assist her with respect to problems at her home; and had promised to check on her on occasion. He had observed several people go up onto the porch and enter the house through the back door. It was reasonable for Santiago to decide to attempt to speak with Hicks. Once lawfully on the porch, he observed contraband in plain view, after Taylor opened the door, entered, and failed to close it. A warrant is not required when a police officer is: (1) lawfully present in the viewing area; (2) the officer inadvertently discovers the evidence in plain view; and (3) it is “immediately apparent” to the police officer that the “items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.” Johnson, supra, 171 N.J. at 207; see also State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
It was also reasonable for Santiago to seize the drugs at the time because it was extremely unlikely that they would still be there when he returned with a warrant, had he sought one, inasmuch as he observed Stewart and Russell attempting to hide the plastic bag. See State v. Stott, 171 N.J. 343, 358 (2002).
Affirmed.
1 At the same time, there was a motion to suppress a statement given by Stewart. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Miranda issue was not preserved for appeal.
Tonacchio Law LC 