Court upholds conviction of former Andover, NJ Mayor
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID MOSNER,
Defendant-Appellant.
_____________________________
May 4, 2009
Argued February 9, 2009 – Decided
Before Judges R. B. Coleman, Sabatino and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 05-05-00190.
Donald J. Rinaldi argued the cause for appellant (DiBiasi & Rinaldi, attorneys for appellant; Mr. Rinaldi, on the brief).
Gregory R. Mueller argued the cause for respondent (David J. Weaver, Sussex County Prosecutor, attorneys; Mr. Mueller, of counsel and on the brief).
The opinion of the court was delivered by
SIMONELLI, J.A.D.
The State charged defendant with two criminal offenses stemming from a hit-and-run snowmobile accident that left a teenage boy seriously injured: fourth-degree assault by motor vehicle (snowmobile), N.J.S.A. 2C:12-1c(1) (count one); and fourth-degree leaving the scene of a motor vehicle accident, N.J.S.A. 2C:12-1.1 (count two). Defendant was also charged with five motor vehicle offenses: operating a snowmobile on a public street or highway, N.J.S.A. 39:3C-17b; operating an unregistered snowmobile, N.J.S.A. 39:3C-3 and N.J.S.A. 39:3C-5; failure to report an accident resulting in injury to or death of any person, or damage to property, N.J.S.A. 39:4-130 and N.J.S.A. 39:3C-21; leaving the scene of an accident resulting in injury or death to any person, N.J.S.A. 39:4-129(a) and N.J.S.A. 39:3C-21; and reckless driving, N.J.S.A. 39:4-96.
Defendant applied for admission to the Sussex County Pre-Trial Intervention Program (PTI). The Sussex County prosecutor consented to defendant’s admission conditioned on, among other things, his guilty plea to the five motor vehicle charges. Defendant agreed to plead guilty to all motor vehicle offenses except leaving the scene of an accident resulting in injuries of any person, which carried a mandatory 180-day term of imprisonment. Defendant appealed the prosecutor’s decision to a Law Division judge, who denied the appeal.
A jury subsequently convicted defendant on the criminal counts. The trial judge convicted defendant on all five motor vehicle charges. The judge sentenced defendant to a 270-day term of imprisonment in the Keough-Dwyer Correctional Facility on count two; to a consecutive two-year term of probation with a 60-day term of imprisonment on count one to be satisfied by his participation in the Sheriff’s Labor Assistance Program; to a concurrent 60-day term of imprisonment on the reckless driving charge; and to a concurrent 180-day term of imprisonment and a concurrent two-year driver’s license suspension on the leaving the scene of an accident charge. The judge also imposed the appropriate assessments, fines and penalties, ordered restitution to the victim, and suspended defendant’s driver’s license for thirty months.
On appeal, defendant raises the following contentions:
POINT ONE
DEFENDANT SHOULD BE ADMITTED INTO THE PTI PROGRAM BECAUSE THE PROSECUTOR ABUSED HIS DISCRETION AND VIOLATED GUIDELINE 4 OF RULE 3:28 BY CONDITIONING DEFENDANT’S ENTRY INTO PTI ON A GUILTY PLEA TO THE UNDERLYING MOTOR VEHICLE OFFENSES.
POINT TWO
THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT’S REQUEST TO ADMIT THE PHOTOGRAPHS TAKEN BY THE STATE INTO EVIDENCE.
POINT THREE
THE TRIAL JUDGE ERRED BY NOT GRANTING THE DEFENDANT’S RENEWAL OF THE MOTION TO SUPPRESS AT TRIAL BECAUSE THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT WAS BASED ON AN ILLEGAL SEARCH.
POINT FOUR
THE TRIAL JUDGE ERRED BY NOT GRANTING THE DEFENDANT’S RENEWAL OF THE MOTION TO SUPPRESS AT TRIAL BECAUSE THERE WAS NO PROBABLE CAUSE TO ISSUE THE SEARCH WARRANT.
POINT FIVE
THE TRIAL COURT ERRED BY ADMITTING THE PANTS ALLEGEDLY WORN BY DAVID MCINNIS INTO EVIDENCE.
We reject these contentions and affirm.
The following facts are summarized from the record. On March 6, 2003, at approximately 7:00 p.m., David McInnis left his home on Goodale Road in Andover Township to walk his dog. Having snowed that day, there was approximately six inches of snow on the road that had not yet been plowed. McInnis wore a pair of waterproof snow pants over a pair of jeans, a t-shirt and sweatshirt and snow boots, and carried a flashlight. He and his dog exited his driveway and walked onto Goodale Road near its intersection with Iliff Road, facing oncoming traffic approaching from the south.
After proceeding approximately 400 feet on Goodale Road, McInnis saw the light of a snowmobile and heard its engine. The vehicle was traveling toward him at approximately forty or fifty miles per hour. McInnis stopped walking and began waving his flashlight at the snowmobile; however, the driver of the snowmobile did not slow down or change direction. The snowmobile struck McInnis and continued north on Goodale Road toward the intersection of Lake Iliff Road. The collision knocked the teenager to the ground, injuring his right leg. In severe pain and bleeding, and unable to stand or walk, McInnis dragged himself, yelling for help.
McInnis was eventually spotted by a snowplow truck driver, who called the police. The snowplow driver also observed a left front rudder snowmobile track in the center of the road in the vicinity where McInnis lay, and snowmobile tracks on Goodale Road that continued to a soccer field off that road.
An ambulance subsequently brought McInnis to the hospital where x-rays revealed a serious compound fracture of his right tibia and fibula requiring surgery and the insertion of two titanium pins. A doctor indicated that the injury “usually would be associated with a high impact, high force injury.”
At approximately 7:25 p.m., Lieutenant Alan Monaco of the Andover Township Police Department arrived at the scene and spoke to McInnis and the snowplow driver. The officer saw two twenty to twenty-five foot snowmobile tracks in the roadway, facing north. While investigating the incident, Monaco received a radio transmission that a resident of Goodale Road had reported seeing someone erratically operating a snowmobile in the soccer field area directly across from her house. Monaco responded to that location and observed “[c]risp[,] [c]lean pristine [snowmobile] tracks, which were just made[,]” in the soccer field area and an adjacent parking lot, which appeared to be from one snowmobile. The tracks proceeded through the soccer field and parking lot areas and continued over a snow embankment and then onto Goodale Road, heading south.
Monaco followed the tracks south on Goodale Road, turned left onto Route 206 south, and then turned left onto Limecrest Road, heading north. The officer then turned left onto Lake Iliff Road, heading west back toward Goodale Road. While traveling on Lake Iliff Road toward Goodale Road, the officer saw snowmobile tracks to his right in the area of Lake Iliff. The tracks crossed the road and entered the lower parking lot of Hillside Park, where snowmobiles were not permitted. The officer entered the parking lot and followed the tracks to the upper area of the park. There he saw snowmobile tracks “in pristine condition[,] . . . [v]ery sharp, crisp track marks[,]” which appeared to be from one snowmobile.
Defendant’s home, located at 140 Lake Iliff Road, borders Hillside Park and is about one-half mile from the scene of the accident. Defendant is well-known in Andover Township, once serving as the mayor. His brother was a member of the Andover Township Police Department and at the time of the accident, defendant was an Andover Township Committee member with oversight of the police department, including “budget . . . salary negotiations . . . promotions [and] discipline.” Defendant was also known to have illegally operated his snowmobile in Hillside Park in the past which, according to Monaco, was “something that was . . . overlooked [by the police].”
Shortly after 8:00 p.m., Monaco went to defendant’s home. As he drove up defendant’s driveway, he saw two sets of snowmobile tracks going into Hillside Park. The tracks appeared to be the same as those he saw on Goodale Road and in the park’s parking lot.
The officer also saw an “Artic Cat” snowmobile parked outside a barn on defendant’s property with damage to the right side of the windshield and with no snow on it. He also saw a “[f]resh[,] [c]risp; pristine [track]” leading to the snowmobile, which was one of the contiguous tracks he had observed leading from defendant’s driveway into Hillside Park. He saw no other snowmobile tracks. The officer then proceeded to defendant’s home and spoke to defendant’s wife, who said that defendant was not home, and that he had been riding his snowmobile at around 6:00 p.m.
Monaco then proceeded to Newton Memorial Hospital to see McInnis. While at the hospital, Monaco took McInnis’s snow pants, which had a black mark on one of the legs. The officer placed the pants in a bag, brought the bag to the police station, and marked it as evidence. The officer then went back on patrol and continued searching the area until 3:00 a.m. for more or other snowmobile tracks. He found none.
On the evening of March 7, 2003, the Sussex County Prosecutor’s Office seized defendant’s snowmobile pursuant to a search warrant. Sergeant Timothy Cooney of the prosecutor’s office photographed the vehicle and the snowmobile tracks on defendant’s property. On the morning of March 8, 2003, the officer photographed the snowmobile tracks in Hillside Park and in the soccer field area off Goodale Road.
On March 10, 2003, Detective-Sergeant Thomas McCormick, supervisor of the New Jersey State Police Crime Scene Investigation North Unit, took additional photographs of defendant’s snowmobile. The next day, he photographed the scene of the accident and the snowmobile tracks from defendant’s property. He also took aerial photographs of the area. The officer followed the snowmobile tracks through Hillside Park and determined that they originated from behind the tennis courts, continued onto the soccer field, crossed over and went through the field behind the Andover Police Department, continued through the field and into the woods, and then continued through the woods to the soccer field on Goodale Road. McCormick concluded that the tracks were from one snowmobile.
On March 13, 2003, McCormick took additional photographs of the snowmobile. He also collected and delivered to the Prosecutor’s Office the front portion of the snowmobile’s metal bumper, the right and left rubber handles, and a piece of fiberglass from the front of the snowmobile. On March 14, 2003, Cooney brought the evidence McCormick had collected and the bag containing McInnis’s snow pants to the State Police Laboratory for analysis.
George W. Chin of the New Jersey State Police Office of Forensic Science, an expert in forensic science, including forensic chemistry and trace evidence analysis, examined the evidence to determine if any transfer occurred from the snowmobile items to the pants. He made three significant findings: (1) a black impression on the left snow pant leg compared in physical dimensions with pinstripes on the snowmobile’s metal bumper; (2) the black material removed from the impression compared to the black pinstripes on the bumper; and (3) a fabric impression on the black pinstripe of the bumper compared in physical dimensions to the weave pattern in the pants. Chin opined that the first two findings showed a transfer from one object to another and that the third finding indicated that there was “a high velocity impact or transfer of fabric impression or pattern onto the [bumper].” He concluded that these findings confirmed the probability of contact between the snowmobile and the pants.
On May 16, 2003, Detective Joseph Costello of the Sussex County Prosecutor’s Office went to Elite Auto in Byram Township and photographed an abandoned “Artic Cat” snowmobile with a missing front left ski that had been reported to the Andover Township police. After examining the vehicle, Costello concluded that nothing indicated this snowmobile’s involvement in the accident.
Defendant testified at trial. He admitted operating his snowmobile at the time of the accident, but denied doing so on Goodale Road. He also denied hitting McInnis. The jury found otherwise.
I.
We first address defendant’s challenge to the prosecutor’s decision about his PTI admission. The victim and his family opposed defendant’s PTI admission. Nevertheless, the Criminal Case Manager found defendant an acceptable PTI candidate and recommended his admission for eighteen months subject to, among other things, his guilty plea to the motor vehicle charges of operating a snowmobile on a public street and operating an unregistered snowmobile. The Criminal Case Manager later amended his recommendation to include a guilty plea to all five motor vehicle charges. Defendant was willing to plead guilty to all motor vehicle charges except leaving the scene of an accident resulting in injuries of any person.
The prosecutor acknowledged that defendant had very good background credentials, including his charitable and public service work as an elected member of the Andover Township governing body. However, after evaluating the criteria in N.J.S.A. 2C:43-12e(1) to (17) and the Rule 3:28 Guidelines, the prosecutor found defendant to be a “marginally acceptable” PTI candidate. The prosecutor would only consent to defendant’s PTI admission on the condition that defendant would, among other things, plead guilty to the motor vehicle charge of leaving the scene of an accident resulting in injury to any person.
The prosecutor reasoned that defendant was an unapologetic public official who illegally operated his snowmobile in the area of the Police Department he oversaw. The prosecutor also found that, despite overwhelming evidence of defendant’s guilt, he refused to accept any responsibility for striking and seriously injuring McInnis, and for knowingly leaving the scene of the accident. The prosecutor concluded that the guilty plea was necessary for the victim, his family, the community and the public’s confidence in the criminal justice system.
Defendant concedes the inapplicability of PTI to Title 39 offenses. See also State v. Negran, 178 N.J. 73, 83 (2003). However, he argues that because the motor vehicle charge of leaving the scene of an accident resulting in injury or death to any person arises out of the same conduct and incident as the fourth-degree criminal charge of leaving the scene of a motor vehicle accident, pleading guilty to the motor vehicle charge is tantamount to pleading guilty to the criminal charge. He concludes that requiring a guilty plea to the motor vehicle charge violates Rule 3:28, Guideline 4.
Defendant also argues that pleading guilty to the motor vehicle charge would require him to serve a mandatory 180-day term of imprisonment, which “flies in the face of reason and contradicts the entire purpose, intent and spirit of the PTI Program.” He concludes that requiring a guilty plea to the motor vehicle charge violates Rule 3:28, Guideline 1(a), (b) and (d).
Finding that defendant’s failure to meet Guideline 4’s concern for acceptance of responsibility for behavior as part of the PTI rehabilitation process, the trial judge concluded that defendant failed to clearly and convincingly show that the prosecutor’s decision was a patent and gross abuse of discretion.
We first emphasize that PTI does not apply to motor vehicle offenses. Negran, supra, 178 N.J. at 83. Accordingly, the prosecutor abused no discretion in requiring a guilty plea to the motor vehicle charges, notwithstanding the penal consequences. Even if PTI did apply to motor vehicle offenses, we discern no abuse of discretion here.
PTI is a diversionary program designed to ‘augment the options of prosecutors in disposing of criminal matters . . . [and] provide applicants with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant.’
[State v. Motley, 369 N.J. Super. 314, 320 (App. Div. 2004) (quoting State v. Brooks, 175 N.J. 215, 223 (2002)).]
To gain admission, a defendant must obtain a positive recommendation from the PTI director and the consent of the prosecutor. Ibid.
In making a PTI determination, the prosecutor must evaluate the criteria set forth in N.J.S.A. 2C:43-12e and the Rule 3:28 Guidelines. Negran, supra, 178 N.J. at 80-81 (2003) (citations omitted). As part of that determination, the prosecutor must “assess a defendant’s ‘amenability to correction’ and potential ‘responsiveness to rehabilitation.’ State v. Watkins, 193 N.J. 507, 520 (2008) (citing N.J.S.A. 2C:43-12b).
A “[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his admission into PTI.” Ibid. (citing State v. Nwobu, 139 N.J. 236, 246-47 (1995)). In order to overturn a prosecutor’s rejection, a defendant must “‘clearly and convincingly establish that the prosecutor’s decision constitutes a patent and gross abuse of discretion.'” State v. Hoffman, 399 N.J. Super. 207, 213 (App. Div. 2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff’d, 193 N.J. 507 (2008)). See also Negran, supra, 178 N.J. at 82; Brooks, supra, 175 N.J. at 225; Nwobu, supra, 139 N.J. at 246; Motley, supra, 369 N.J. Super. at 321. “A patent and gross abuse of discretion is defined as a decision that ‘has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'” Watkins, supra, 193 N.J. at 520 (quoting State v. Wallace, 146 N.J. 576, 582-83 (1996)). “Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment.” State v. Bender, 80 N.J. 84, 93 (1979).
Prosecutors are granted “wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial.” Negran, supra, 178 N.J. at 82. We afford the prosecutor’s decision great deference. Wallace, supra, 146 N.J. at 589; State v. Leonardis, 73 N.J. 360, 381 (1977); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). For that reason, “[t]he scope of judicial review of a decision to reject a PTI application is ‘severely limited.'” Hoffman, supra, 399 N.J. Super. at 213 (App. Div. 2008). See also Leonardis, supra, 73 N.J. at 381. A trial court can only overturn a prosecutor’s decision to deny PTI upon finding a patent and gross abuse of discretion. Kraft, supra, 265 N.J. Super. at 112-13.
The fundamental question before us is whether, under the circumstances of this case, the prosecutor could condition defendant’s PTI admission on a guilty plea to a motor vehicle charge carrying a mandatory term of imprisonment. “Enrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilty. Enrollment of defendants who maintain their innocence should be permitted unless the defendant’s attitude would render pretrial intervention ineffective.” R. 3:28, Guideline 4. See also N.J.S.A. 2C:43-12g. Rejection of PTI admission should only occur where “it is unlikely that behavioral change can occur as a result of short-term rehabilitative work.” Pressler, Current N.J. Court Rules, comment on R. 3:28, Guideline 4.
Here, the prosecutor found defendant to be an acceptable candidate for PTI, albeit “marginally acceptable.” Given the victim’s and his family’s opposition and the impact on society as a whole, the prosecutor required an admission of guilt to the motor vehicle charge. These considerations would have justified an outright denial of PTI admission, thus satisfying the prosecutor’s desire to achieve deterrence and be responsive to concerns of the victim and the community. However, by the prosecutor’s consent, defendant became an eligible PTI candidate. Accordingly, the prosecutor’s review should have focused on whether defendant’s attitude was such that PTI without a guilty plea would be rendered ineffective.
Based upon our careful review of the record, we are satisfied that the prosecutor had adequate grounds to deny defendant unconditional PTI admission. Despite compelling evidence of defendant’s guilt, he refused to take any responsibility whatsoever for his actions, and he has expressed no remorse.1 Accordingly, there is sufficient indicia that PTI was unlikely to result in any behavioral change, and that defendant’s attitude is such that unconditional PTI would not achieve the purposes of the statute.
II.
Defendant next challenges the judge’s denial of his request to admit photographs of the abandoned snowmobile. Defendant claimed that a snowmobile operated by someone else struck McInnis. He argued that the photographs were relevant to his defense, and that given the lack of evidence directly proving his involvement in the accident, they could have raised a reasonable doubt about his involvement.
The trial judge barred the photographs, finding that defendant presented no nexus between the abandoned snowmobile and the accident. The judge rejected defendant’s argument that since the prosecutor gave him the photographs through discovery there must be a nexus. Defendant declined the judge’s offer to “open up the case” to provide the nexus.
“Except as otherwise provided in these rules or by law, all relevant evidence is admissible.” N.J.R.E. 402. A defendant has the right to present a defense that someone else committed the crime. State v. Fortin, 178 N.J. 540, 590 (2004). This is known as third-party guilt, and this right “does not address whether specific evidence is admissible in support of such a defense.” Id. at 591. “Third-party guilt evidence ‘need only be capable of raising a reasonable doubt of defendant’s guilt’ to warrant its admissibility.” Ibid. (quoting State v. Koedatich, 112 N.J. 225, 299 (1988) (Koedatich II), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)). “Stated more concretely, there must be ‘some link . . . between the third party and the victim or crime,’ ‘capable of inducing reasonable’ people to regard the evidence ‘as bearing upon the State’s case[.]'” Ibid. (quoting Koedatich II, supra, 112 N.J. at 300; State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960)). The connection between the third party and the crime must be more than just conjecture. Ibid.
We agree that defendant failed to establish the necessary connection between the abandoned snowmobile and the crime committed. There is no evidence connecting the abandoned snowmobile to the accident. Rather, the overwhelming evidence indicates that defendant was the sole cause of the accident.
III.
Defendant next contends that the trial judge erred in denying his second motion, brought at the close of all evidence, to suppress the seizure of his snowmobile. He argues an entitlement to renewal of that motion because Monaco’s trial testimony indicated that the officer illegally obtained the evidence supporting the search warrant.
Defendant also argues that Monaco testified to seeing tracks near the bottom of defendant’s driveway during the application for the warrant, but at trial testified to driving up defendant’s driveway without making such an observation. Defendant claims that Monaco could not have observed the tracks until he was well into defendant’s driveway, and that the officer targeted him and drove onto his driveway in an effort to find evidence, without properly securing a warrant. Defendant also claims that no probable cause existed for the search warrant because the facts presented to the warrant judge did not provide a logical nexus between the place to be searched and the crime investigated.
Denying defendant’s motion, the trial judge stated that he did not “see anything new here that would indicate to the [c]ourt that this is an issue that demands a reconsideration of the question of the motion to suppress.” The judge found that Monaco’s personal knowledge of defendant’s snowmobile use did not require him to obtain a warrant before proceeding to defendant’s house to speak with him.
Our review of a trial judge’s findings is “exceedingly narrow.” State v. Locurto, 157 N.J. 463, 470 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We give great deference to the trial judge’s factual findings and will not “engage in an independent assessment of the evidence as if [we] were the court of first instance.” Id. at 471. We also give deference to the trial judge’s credibility determinations. Id. at 474; Johnson, supra, 42 N.J. at 161. 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 Locurto, supra, 157 N.J. at 474); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We will reverse only if we are convinced that the trial judge’s factual findings are “so clearly mistaken ‘that the interests of justice demand intervention and correction.'” Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162.) “In those circumstances solely [we] ‘appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'” Ibid. (quoting Johnson, supra, 42 N.J. at 162). With these standards in mind, we continue our inquiry.
A motion to suppress evidence is properly made pursuant to Rule 3:10-2 before the trial. See also R. 3:5-7. A motion to suppress can be made a second time where “new evidence comes to light, which was unavailable at the time of the original hearing on the motion through no fault of the movant,” that would affect the legality of the search. State v. Roccasecca, 130 N.J. Super. 585, 591 (Law Div. 1974).
Based upon our careful review, we discern no reason to disturb the judge’s ruling. Monaco’s testimony before the warrant judge is almost identical to his trial testimony. Defendant’s claims about the officer’s testimony to the warrant judge are, at best, a misinterpretation. There was nothing new in Monaco’s trial testimony to justify a second motion to suppress.
Even if such new evidence existed, the motion would fail. The Fourth Amendment and Art. I, par. 7 of the New Jersey Constitution protect individuals from unreasonable searches and seizures. State v. Davis, 104 N.J. 490, 498-99 (1986) (citing United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 1573, 84 L. Ed. 2d 605, 613 (1985); State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). “The protections of the Fourth Amendment are limited to a person’s house and the ‘curtilage’ of the house.” State v. Nikola, 359 N.J. Super. 573, 581 (App. Div.), certif. denied, 178 N.J. 30 (2003) (citing United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334 (1987)). “‘[W]hen the police [come] on to private property to conduct an investigation . . . and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment.'” Id. at 581-82 (quoting State v. Johnson, 171 N.J. 192, 209 (2002)).
We are satisfied that no illegal search occurred here and, thus, the search warrant was valid. In order to get to defendant’s home from Lake Iliff Road, one must drive up a long driveway resembling a private road, continue on this driveway past defendant’s house, then past another house (which defendant rents to a tenant), then around a bend, and then end at the front of defendant’s home in his parking area. Monaco saw snowmobile tracks while going around the bend toward defendant’s parking area. All the while, the officer was on defendant’s property to conduct an investigation. He restricted himself to an area that visitors could be expected to go. There is nowhere to park on defendant’s property other than the parking area. Defendant cannot argue that this search was illegal simply because his driveway causes a visitor to travel deeper onto his property than other driveways.
Further, “[b]efore issuing any warrant, a judge must be satisfied that there is probable cause to believe that a crime has been or is being committed at a specific location or that evidence of a crime is at the place to be searched.” State v. Evers, 175 N.J. 355, 381 (2003). Probable cause “is ‘a well grounded’ suspicion that a crime has been or is being committed’ at a particular place.” Ibid. (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). “A search warrant is presumed to be valid, and defendant bears the burden of demonstrating that the warrant was issued without probable cause[.]” Ibid. (citing State v. Valencia, 93 N.J. 126, 133 (1983)). Therefore, a reviewing court must give substantial deference to a judge’s determination that probable cause existed to issue a search warrant. Ibid. When reviewing the validity of a search warrant the court must look to the totality of the circumstances to see if there was probable cause. State v. Novembrio, 105 N.J. 95, 122-23 (1987).
Here, the warrant only applied to the seizure and examination of defendant’s snowmobile. Monaco’s testimony to the warrant judge established probable cause to issue the search warrant.
IV.
Defendant next contends that the trial judge erred by admitting McInnis’s snow pants into evidence. He argues that the State failed to prove the chain of custody and that the pants were not those worn by McInnis at the time of the accident. Defendant points to the lack of identification and the conflicting testimony about the color of the pants and the location of the black marks.
Defendant’s arguments lack merit. Monaco identified the bag containing the pants at trial, the pants remained in the possession of the State police, and there was no evidence that the pants had been changed. Further, Chin’s testimony, to which defendant did not object, provided the critical evidence about the pants and their connection to the accident. The trial judge was satisfied that the State proved chain of custody.
“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.” N.J.R.E. 901. “A party introducing tangible evidence has the burden of laying a proper foundation for its admission.” State v. Brunson, 132 N.J. 377, 393 (1993). This foundation should include a showing of an uninterrupted chain of custody. Ibid. (citing State v. Brown, 99 N.J. Super. 22, 27, (App. Div.), certif. denied, 51 N.J. 468 (1968)). The determination of whether the State sufficiently established the chain of custody is within the discretion of the trial court. Brown, supra, 99 N.J. Super. at 27. Generally, evidence will be admitted if the court finds “in reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed.” Id. at 28 (citations omitted). “[A] defect in the chain of custody goes to the weight, not the admissibility, of the evidence introduced.” State v. Morton, 155 N.J. 383, 446 (1998).
Our careful review of the record satisfies us that the State properly established a foundation for the admission of the pants into evidence. Defendant does not point to a specific gap in the chain of custody, nor does he show how the trial judge abused his discretion. He merely points to inconsistencies in the testimony. However, any inconsistencies go to the weight of the evidence, not its admissibility.
Affirmed.
1 In defendant’s letter to the court that defense counsel mentioned at sentencing, defendant apparently only expressed remorse for his family and the victim and his family for having to go through the media attention the case brought about. The letter has not been supplied on appeal. Regret over publicity is a far cry from regret for wrongful conduct and the harm it inflicted.
Jayson Williams is arrested and hospitalized after breakdown
Police responded to the Embassy Suites Hotel in New York’s Financial District on reports of a suicidal, emotionally disturbed person that turned out to be former NBA star, Jayson Williams. Not only was he arrested, but he had to be Tasered. He was taken to St. Vincent’s Hospital for a psychiatric evaluation.
Two of his defense lawyers Joseph Hayden Jr. and Christopher Adams rushed to Williams’ bedside. Although they insist he was not arrested, it seems like he was arrested to me. He is awaiting retrial for reckless manslaughter for the shooting death of limousine driver Costas “Gus” Christofi in 2002.
Of course, the talk now is that this was all a ruse to delay the trial. I don’t buy it. Defendants are under a ton of stress at all times and sometimes, they break. I even had a client that died of a heart attack due to all of the stress he was under. He had no other risk factors that would lead you to believe that he could have a heart attack.
Story is here.
Gambling ring linked to mafia busted in New Jersey
The Bergen County Prosecutor’s Office have charged 34 people with allegedly being part of a mafia-linked gambling ring. The State alleges that ring was split into two bookmaking and money laundering operations with one led by alleged Genovese member John “Blue” DeFroscia. Most are charged with promoting gambling and conspiracy.
In this type of case, there are two types of defendants, the big ones and the small ones. Of course, the small ones get the good, early deals so that the State can make a case against the big defendants. Knowing this, the attorneys for the big defendants need to work quickly to assess the case and build a defense early or work out a deal early.
Just because someone flips doesn’t mean the case is lost. In fact, if the rest of the evidence is weak, a good attorney can show that the State is desperate enough to get in bed with someone that had admitting to breaking the law and that this person is willing to say anything to save themselves.
Of course, having one of the main guys flip on everyone in order to get a good deal is an interesting strategy that is not often used, although there are only so many cases with 30+ defendants. From what I read, this case would be tough for the State to bring to trial just in terms of logistics. Thus, the incentive to end it quick and early is high. A defense attorney can and should use this to their advantage. For those that will not take a deal, all of the attorneys should get together and strategize.
Story is here.
List of those charged along with their specific charges and employer:
1)LAWRENCE ACKERMAN Racketeering Atlantic Agency,Fort Lee, NJ
Old Tappan, NJ Promoting gambling
Age: 46 Conspiracy to Promote Gambling
2)DULO BOLIJEVIC Promoting Gambling Villa Pizza,Rockaway, NJ
Dover, NJ Conspiracy to Promote Gambling
Age: 36
3)COSMO BRONGO Promoting Gambling Merrill Lynch Short Hills, NJ
Nutley, NJ Conspiracy to Promote Gambling
Age: 45
4)WILLIAM BUDD Promoting Gambling Federal Express, NY, NY.
Fort Lee, NJ Conspiracy to Promote Gambling Age: 47
5)JOHN CAMIDGE Promoting Gambling Redball Parking, NY, N.Y.
Belmar, NJ Conspiracy to Promote Gambling
Age: 50
6)GERARDO CIANCI Promoting Gambling Unknown
Bloomfield, NJ Conspiracy to Promote Gambling
Age: 46
7)THOMAS CONFORTI Racketeering Premio, Hawthorne, N.J.
Fairfield, NJ Promoting Gambling
Age: 44 Conspiracy to Promote Gambling
8)BIAGGINO CIRCELLI Promoting Gambling Schering Plough, NJ
Summit, NJ Conspiracy to Promote Gambling
Age: 49
9)MICHAEL CIRELLI Racketeering Ideal Plating, Belleville, N.J.
Nutley, NJ Promoting Gambling
Age: 49 Conspiracy to Promote Gambling
10)PATRICK CUOMO Promoting Gambling Unemployed
Congers, NY Conspiracy to Promote Gambling
Age: 55
11)JOHN DEFROSCIA Racketeering Clark Printing, Saddle Brook, NJ
“Blue” Promoting Gambling
Warren, NJ Conspiracy to Promote Gambling
Age: 48
12)JOSEPH DIMAGGIO Promoting Gambling Unknown
Garfield, NJ Conspiracy to Promote Gambling
Age: 37
13)SAMUEL ERIK Promoting Gambling Erik Jewelry, Paramus, NJ
New Milford, NJ Conspiracy to Promote Gambling
Age: 29
14)DAVID GREEN Promoting Gambling Unknown
New York, NY Conspiracy to Promote Gambling Age: 48
15)CHRISTOPHER HANSEN Promoting Gambling Unknown
Glen Oaks, NY Conspiracy to Promote Gambling
Age: 46
16)EUGENE LEE Promoting Gambling RFA, New York, N.Y.
Cliffside Park, NJ Conspiracy to Promote Gambling
Age: 33
17)ANTHONY LOMBARDO Promoting Gambling Unknown
Bronx, NY Conspiracy to Promote Gambling
Age: 50
18)VINCENT MARCHELLO Promoting Gambling Unknown
Belleville, NJ Conspiracy to Promote Gambling
Age: 43
19)MICHAEL McNAMARA Promoting Gambling Unemployed
Brooklyn, NY Conspiracy to Promote Gambling
Age: 64
20)PABLO NAPOLITANO Promoting Gambling Nino’s Repair, Orange, NJ
Caldwell, NJ Conspiracy to Promote Gambling
Age: 29
21)GERALD NAPOLITANO Racketeering La Pasteria, Summit, NJ
“Jay” Promoting Gambling
Belleville, NJ Conspiracy to Promote Gambling
Age: 60
22)FRANK NISTA Promoting Gambling North Shore Racquet Club, NY
“Raven” Conspiracy to Promote Gambling
Bayside, NY
Age: 56
23)LOUIS ORANGEO Promoting Gambling United States Postal Carrier
Newark, NJ Conspiracy to Promote Gambling
Age: 41
24)AGOSTINO PETRILLO,Jr. Promoting Gambling Nino’s Repair, Orange, NJ
“Nino” Conspiracy to Promote Gambling
Livingston, NJ
Age: 39
25)NICHOLAS RESTAINO Promoting Gambling Raccioppi’s Bloomfield, NJ
“Pigeon” Conspiracy to Promote Gambling
Bloomfield, NJ
Age: 56
26)RICHARD ROSENBLUM Promoting Gambling (At Large)
“Frosty” Conspiracy to Promote Gambling
Bronx, NY
Age: 53
27)NURI SAYILIK Promoting Gambling Isabella Jewelry, Wayne, NJ
New Milford, NJ Conspiracy to Promote Gambling
Age: 45
28)CORNELIUS O’SULLIVAN Promoting Gambling Self Employed, C.P.A.
Nyack, NY Conspiracy to Promote Gambling
Age: 40
29)PAUL WEBER Racketeering Aramark, PA
“Shortline” Promoting Gambling
New Rochelle, NY Conspiracy to Promote Gambling
Age: 40
30)ROBERT WALSH Promoting Gambling Atlantic Agency, Ft. Lee, NJ
Fort Lee, NJ Conspiracy to Promote Gambling
Age: 44 Money Laundering, 3rd Degree
31)JOHN VENEZIA Promoting Gambling Cornerstone Contracting,Roselle, NJ
North Caldwell, NJ Conspiracy to Promote Gambling
Age: 46
32) PATRICK NUFIIO Promoting Gambling Unknown
Cedar Grove, NJ Conspiracy to Promote Gambling
Age: 48
33)ROBERT CAPRIO Promoting Gambling Unknown
Belleville, NJ Conspiracy to Promote Gambling
Age: 53
34)ANTHONY BOGOSIAN Promoting Gambling Unemployed
Paramus, NJ Conspiracy to Promote gambling
Age: 44 Money Laundering, 3rd Degree
Charges for threatening cop dismissed
As an attorney, whenever your client is charged with threatening or assaulting a cop, you just know that the case is not going to be easy. The cop may take the case personally and really push to nail your client to the well. While I’ve always has these cases turn out great, I always assume it is going to be really tough.
Today I had a case where my client was alleged to have threatened to punch a cop to the point where my client allegedly put his fist in the cop’s face. Not the best fact pattern. However, I was able to get the case dismissed so my client does not have a criminal record. How did I do it? Simple, my client has nothing to lose by going to trial and I let the State know that I am ready to go to war over a case that to them may be minor, but to my client, is very serious. It was a great result for a great client.
Court holds Defendant needed more time to decide if he should tesitfy
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAYMOND R. MARTIN,
Defendant-Appellant.
__________________________________
April 29, 2009
Argued March 17, 2009 – Decided
Before Judges Wefing and Yannotti.
On appeal from Superior Court of New
Jersey, Law Division, Somerset County,
No. 05-06-00501-I.
Randy P. Davenport argued the cause for
appellant.
Eric Mark, Assistant Somerset County Prosecutor,
argued the cause for respondent (Wayne J. Forrest,
Prosecutor, attorney; Mr. Mark, on the brief).
PER CURIAM
Tried to a jury, defendant was convicted of three counts of distribution of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-5(b)(3), and one count of resisting arrest, N.J.S.A. 2C:29-2(a), all crimes of the third degree. The trial court sentenced defendant to three years in prison. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we reverse.
Defendant’s trial was brief. Detective Christopher Shearer of the Somerset County Prosecutor’s Office engaged in three undercover narcotics transactions. The last two transactions took place in the parking lot of Rhythms, a bar and restaurant located in Manville. The final sale was monitored by a number of officers, who were stationed in unmarked vehicles at various nearby points. At the conclusion of that sale, Detective Shearer gave a signal to those officers; he drove off and the remaining officers closed in, identifying themselves as police. Defendant tried to run away but was subdued and arrested after a brief struggle. Detective Shearer identified defendant as the individual who sold narcotics to him and several of the officers involved in arresting defendant also testified.
Defendant raises the following issues for our consideration:
POINT ONE
THE TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO TESTIFY BY FAILING TO SUFFICIENTLY INQUIRE AS TO WHETHER DEFENDANT HAD KNOWINGLY AND VOLUNTARILY WAIVED HIS RIGHT TO TESTIFY.
POINT TWO
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO TESTIFY BY REFUSING TO ALLOW DEFENDANT AN OPPORTUNITY TO CONSULT WITH HIS FAMILY BEFORE DECIDING WHETHER TO WAIVE HIS RIGHT TO TESTIFY.
POINT THREE
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DUE TO TRIAL COUNSEL’S FAILURE TO AGAIN REQUEST THAT DEFENDANT BE ALLOWED TO TESTIFY ON HIS OWN BEHALF AFTER THE TRIAL COURT HAD PREVIOUSLY CONCLUDED THAT DEFENDANT WAIVED HIS RIGHT TO TESTIFY.
POINT FOUR
THE ASSISTANT PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT REQUIRING REVERSAL OF DEFENDANT’S CONVICTION DUE TO AN EGREGIOUS COMMENT IN THE STATE’S SUMMATION WHEN THE ASSISTANT PROSECUTOR COMMENTED ABOUT THE DEVASTATION THAT CRACK COCAINE HEAPS ON CRACK USERS, THEIR FAMILIES AND THE COMMUNITY. (Not Raised Below)
POINT FIVE
THE JUDGE’S CHARGE ON FLIGHT WAS ERRONEOUS BECAUSE IT DID NOT INFORM THE JURY OF THE DEFENDANT’S EXPLANATION FOR HIS FLIGHT. (Not Raised Below)
POINT SIX
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT’S MOTION FOR A NEW TRIAL AND ERRONEOUSLY CONCLUDED THAT THE STATE HAD PROVEN EACH OF THE CHARGES BEYOND A REASONABLE DOUBT.
POINT SEVEN
THE THREE-YEAR PRISON TERM IMPOSED ON DEFENDANT’S FIRST INDICTABLE OFFENSES SHOCKS THE JUDICIAL CONSCIENCE. DEFENDANT MUST BE RESENTENCED TO A TERM OF PROBATION.
The first three points all revolve around the same incident. It is necessary to set forth in detail the context in which it occurred. The first day of trial was Thursday, October 25, 2007. The jury, which had been selected the previous day, was sworn in, the attorneys gave their opening statements, and the prosecution presented three witnesses. At the end of the day, the trial court advised the jury that it would be handling other matters on Friday and Monday, and thus testimony resumed on Tuesday, October 30. The prosecution presented four witnesses on Tuesday, two of whom were officers involved in arresting defendant. Another of the witnesses was the manager of Rhythms, who testified that defendant had come into the establishment to see about booking a party. After speaking briefly, he left. The manager heard a disturbance outside and saw defendant being arrested.
At approximately 11:00 a.m., after presenting three witnesses, the assistant prosecutor informed the court that he had one additional witness, a police officer, whom he had instructed to come in at 1:30 p.m. He said he had been unable to reach the officer to have him come earlier when the trial moved more quickly than he had anticipated. The trial court agreed to the brief recess and in that period conferred with counsel on the anticipated charge.
The trial resumed at approximately 1:30 p.m. and the final witness for the State, Patrolman William Federico, who had also participated in the arrest, testified. At the conclusion of his testimony, the State rested. Defendant then made a motion to dismiss; after argument, the trial court denied the motion under State v. Reyes, 50 N.J. 454 (1967). Defendant then called Detective Mark Matthews, also of the Somerset County Prosecutor’s Office. At the end of that testimony, defense counsel asked for a brief recess to consult with his client on whether defendant was going to testify. The trial court agreed and recessed for fifteen minutes. When the matter resumed (outside the presence of the jury) it was, according to the transcript, almost 4:00 p.m. Defense counsel said his client wanted to consider overnight whether to testify; the trial court refused that request. Defense counsel inquired whether, if his client elected to testify, he could do so in the morning in light of the time. Again, the trial court refused this request.
The colloquy between the trial court and defense counsel occupies several pages of transcript, with the trial court becoming more exasperated with what it perceived to be defense counsel’s refusal to give a direct answer to the question whether defendant intended to testify. The court reminded defense counsel that it had repeatedly during the trial informed defendant that he would have to come to a decision on whether to testify. The trial court insisted that the decision be made at that juncture and further that defendant testify at that point. When defense counsel persisted that his client could not make an informed decision then but needed to consider it overnight, the trial court concluded that defendant was not testifying. Defense counsel did agree that the court should instruct the jury that it could draw no inference from defendant’s failure to testify. The trial court then called in the jury and dismissed them for the day.
The trial resumed the following day with summations and charge. Defense counsel argued in his summation that defendant was arrested by mistake, stressing the testimony of the Rhythms’ manager that defendant had been there talking about booking a party. After several hours of deliberation, the jury found defendant guilty on all counts.
We recognize that the scheduling and control of trial proceedings rests in the sound discretion of the trial court. We further recognize the deference that an appellate court will generally accord to the discretionary determinations of a trial court. Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998). We also recognize and are sympathetic to the heavy pressures under which trial courts labor.
We are satisfied, nonetheless, that the trial court mistakenly exercised its discretion when it insisted at 4:00 p.m. that defendant could not ponder overnight whether to take the stand. We acknowledge that the trial court did, as it stressed during this colloquy, repeatedly advise defendant during the trial that he would have to make that decision. The shifting dynamics of a trial, however, are one of the important factors a defendant must weigh in reaching his decision on this crucial issue. What may have seemed to be the reasonable decision during the first day of trial may not be in light of testimony given during the second day. We note, in addition, that defendant had no prior indictable convictions and thus did not have to fear that the jury would consider him less credible because of a prior criminal record.
Judicial discretion is not unbounded. State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). Judicial discretion must take into account not only applicable legal principles but the particular circumstances of the case. State v. Moretti, 50 N.J. Super. 223, 236 (App. Div. 1958) (citing Hager v. Weber, 7 N.J. 201, 212 (1951)). Further, it must be exercised to achieve a sound objective.
We are unable to perceive what objective the trial court was seeking by persisting in this course, and the trial court did not state its objective, other than its desire to have defendant make his election then. The prosecution did not request that defendant make his decision at that point and voiced no objection to the request for further time. The trial court had already determined earlier in the day that summations and charge would take place the following day. Permitting defendant to return in the morning to announce his decision would thus not delay the trial beyond what had already been anticipated. His testimony, moreover, would have been brief and thus did not pose an unjustifiable risk of delay.
From reading a cold transcript, it would appear that the prosecution had a very strong case. The jury, however, did not come to an immediate decision but deliberated for some period of time. Defense counsel argued in his summation that defendant was only on the scene because he had gone to Rhythms to book a party and that the officers mistook him for someone else. We have reluctantly concluded that the stance taken by the trial court was unreasonable in light of all the circumstances of this case and that it mistakenly exercised its discretion.
Our conclusion in this regard makes moot the remainder of defendant’s arguments. We are compelled to note, however, that remarks about the social devastation of drug trafficking do not belong in a prosecutor’s summation.
Reversed and remanded for further proceedings.
Court holds that shoplifting jury charge did not have to be molded to fit the facts
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IRVING ALICEA,
Defendant-Appellant.
________________________________
Before Judges Waugh and Ashrafi.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-03-0522.
Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Irving Alicea appeals his conviction for one count of third-degree shoplifting, N.J.S.A. 2C:20-11(b)(2). Shoplifting is a third-degree offense when the value of the property involved exceeds $500 but is less than $75,000. N.J.S.A. 2C:20-11(c)(2). He was sentenced to a five-year term of incarceration, in addition to the required fines and penalties. On appeal, Alicea challenges the jury charge with respect to the valuation of the goods he was accused of stealing, arguing that the judge should have molded the facts to the law in the charge. We disagree and affirm.
We glean the following facts from the record. Hernan Castano was a store detective at the Macy’s department store in the Paramus Park Mall on December 23, 2004. At about 9:20 p.m., Castano was walking in the young men’s department. He received a radio transmission from a security manager, who told him that a person, later identified as Alicea, tried to go into the fitting room but refused to have his items counted. The customer then left the fitting room, but continued to shop. Castano found the behavior suspicious because customers do not ordinarily refuse to have their items counted.
The manager told Castano what the man was wearing and also that he was carrying a Gap shopping bag. As Castano began to walk towards the area, he met up with Luis Jimenez, another detective, and they found Alicea. Castano observed that Alicea had a few items over his left arm and was carrying the Gap bag in his right hand. Castano was able to see a bit of aluminum foil sticking out of the Gap bag. At that point, the bag appeared to be flat and light.
Castano testified that such a bag is known as a “booster bag,”
which is a method shoplifters employ when they put merchandise in a bag. They line it with aluminum foil. When they walk by the door the alarm won’t go off. The signal will be interrupted by the aluminum foil. They could walk out of the store and we would never — the alarm would never go off.
Castano watched Alicea select items for about five minutes. He went into a fitting room and cleaned it out for Alicea’s use. When Alicea went into a fitting room with approximately fifteen items, Castano was able to see and hear him breaking off the sensor tags. He also saw Alicea drop the pliers he was using.
The bag was open on the floor and Castano was able to see that it was totally lined with aluminum foil. Castano saw Alicea fold the items and put them into the bag. Some of the items still had sensor tags. Alicea then picked up some of the debris and put it in the pocket of a pair of pants. When Alicea came out of the fitting room, he went to the register and put two or three items down and told the worker that he “didn’t want these items.”
After Alicea left the fitting room, Jimenez followed him while Castano went into defendant’s stall and checked all the tags and other debris he had left behind. Jimenez informed Castano that Alicea was walking towards the cosmetics department. Alicea passed seven to eight cash registers, but did not attempt to pay for the bag of merchandise he was carrying.
Castano followed Alicea to the exit, where he left the store and entered the main part of the mall. Castano and Jimenez stopped Alicea and handcuffed him. They brought him back into the store to the security office.
The prices of the items taken by Alicea were determined by running each item through a computer in the security office. A number (called the SKU number) was fed into the computer and the price of the item registered. Altogether there were eight items in the bag and their total price was $636.
At trial defense counsel pointed out that the surveillance video shown to the jury reflected that numerous items were on sale, arguing that the SKU number may not have been the accurate price for that day. Castano testified that the SKU numbers were updated daily, so they would indicate any sale price if one was applicable that day.
On appeal, Alicea raises the following issue:
POINT I
INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE AND FAILED TO DISCUSS WHATSOEVER THE DEFENSE POSITION OF COST OF THE GOODS AT THE TIME OF THE SHOPLIFTING, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
In applying the plain error standard of Rule 2:10-2 to our review, we must assure ourselves that defects in the charge did not include any consequential defects. We review the jury charge as a whole in order to determine its overall effect. State v. Vasquez, 374 N.J. Super. 252, 263 (App. Div. 2005). In so doing, we have found nothing “sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.” Ibid. Indeed, we discern no problem whatever with the charge.
The judge charged the jury according to the Model Jury Charges and he did so without objection. He clearly instructed the jury that, if they determined that Alicea was guilty of shoplifting, they would then have to determine the value of the goods taken. He explained that there were four categories for them to choose among: (1) $75,000 or more; (2) more than $500 but less than $75,000; (3) at least $200 but not more than $500; and (4) less than $200. He also explained that the amounts at issue were to be calculated using the “full retail value,” which he defined as “the merchant’s stated or advertised price of the merchandise.” The instruction was clear and easy to understand.
Citing numerous cases in which the molding of the facts of the case to the law in the charge was deemed necessary, Alicea argues that the trial judge should have molded the facts to the law in this case. We disagree. In a case, such as the one before us, in which both the factual issue to be determined and the law to be applied are relatively simple, such molding is simply not required. State v. Robinson, 165 N.J. 32, 42-43 (2000) (“That requirement has been imposed in various contexts in which the statement of relevant law, when divorced from the facts, was potentially confusing or misleading to the jury.”); State v. Rambo, 401 N.J. Super. 506, 525 (App. Div.), certif. denied, 197 N.J. 258 (2008). The factual issue, i.e., whether the SKU number accurately reflected that day’s sale prices, was more than adequately framed by counsel during their summation. There was no need for the trial court to outline it in the charge.
F or the reasons stated above, we affirm Alicea’s conviction for shoplifting as a third-degree crime. N.J.S.A. 2C:20-11(c)(2).
Affirmed.
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.
Tonacchio Law LC 