20-year-old from Marlboro charged with 15 drug-related crimes for allegedly using teenage girls to sell marijuana
Michael Lobianco, of Marlboro, is being held in lieu of $320,000 bail after his arrest on Saturday. Police allege that two girls, 15 and 16, conducted a series of transactions in Keansburg involving marijuana purchased by Lobianco for distribution.
He is charged with two counts of using a juvenile to distribute a controlled dangerous substance, two counts of endangering the welfare of a child, two counts of conspiracy, two counts of possession with the intent to distribute and seven counts of possession with intent to distribute within 1,000 feet of a public building, park or school. In other words, he is facing a ton of problems.
There are no other details of the incident, but I would like to know more about this case. How did the police link these girls to him? Do these girls have any credibility? There are a number of defenses here depending on the evidence. Either the State has some good evidence or they have a few hunches.
Story is here.
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.
STATE OF NEW JERSEY,
CURTIS O. HARRELL, Jr.,
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).
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:
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.
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).
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.
STATE OF NEW JERSEY,
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).
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).
SUPERIOR COURT OF NEW JERSEY
STATE OF NEW JERSEY,
HAMID A. SHABAZZ,
Submitted February 2, 2009 – Decided
Before Judges Carchman and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-05-0638.
Yvonne Smith Segars, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief).
James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).
Following a jury trial, defendant Hamid A. Shabazz was convicted of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); two counts of third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and b(3); and two counts of third-degree distribution of controlled dangerous substance within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a.1 The trial judge sentenced defendant to two concurrent five-year terms in prison with a three-year parole disqualifier, as well as statutory penalties, fines and license suspension. Defendant appeals, and we now affirm.
These are the facts adduced at trial. On February 25, 2005, at 11:00 a.m., Sergeant Samuel Rivera, a thirteen-year veteran of the Passaic Police Department, was performing a narcotics surveillance operation in the area of 49 Pine Street, a location within 1,000 feet of Public School No. 7 in Passaic. The operation itself was divided into two teams, the surveillance officer and the backup team, which would stop and detain any suspects involved in a narcotics transaction observed by Sergeant Rivera. During the operation, Sergeant Rivera was performing the surveillance while Detectives Juan Clavijo, Tamika Santiago, Reynaldo Arroyo, Larson, LeConte and Cassiano2 were acting as backup. Sergeant Rivera had been in that area since 6:00 a.m. and was situated twenty or twenty-five feet away from 49 Pine Street.
During his surveillance, Sergeant Rivera observed Anthony Haskins near the porch of 49 Pine Street and also observed defendant in the alley between 53 and 55 Pine Street. At approximately 11:00 a.m. a third individual, Michael Dennis, approached the area wearing a blue knit cap, a winter vest-type jacket and blue jeans. Dennis had a brief conversation with Haskins in front of 49 Pine Street. Haskins then proceeded to walk into the area between 53 and 55 Pine Street, while Dennis waited on the porch. As Haskins walked towards the alley, he yelled out to defendant, who was in the back of the alley, and “motioned as if making hand signals of 10.” Defendant went behind 55 Pine Street for a few moments and then came back and met Haskins in the center of the alley. Defendant handed Haskins “an item,” which, Sergeant Rivera observed, Haskins took in his right hand. Haskins then walked from the alley back to 49 Pine Street where he handed the item to Dennis. Dennis then handed Haskins what appeared to be United States currency, and Dennis left the area. Haskins went back to the alley and gave defendant the money. Defendant remained in the alley while Haskins returned to the porch at 49 Pine Street.
As Dennis left the area, Sergeant Rivera, based on eight years of experience and observing over 1,000 hand-to-hand street-level drug interactions, concluded that he had observed a drug transaction. He relayed a description of Dennis and Dennis’ current route of travel over the police radio.
After Dennis left the area, another individual, Robert Ellis, emerged from a black Cadillac parked near the front of 49 Pine Street and began talking to Haskins who was sitting on the porch. Haskins returned to the alley and called defendant. They had a brief conversation resulting in Haskins bringing Ellis to defendant, and defendant and Ellis proceeding to the rear of 55 Pine Street. A moment later, Ellis returned “looking a[t] something in his hand”; he entered his vehicle and left the area. Sergeant Rivera then advised his backup team to detain the black Cadillac.
Once the backup team had detained both Dennis, Ellis and the black Cadillac, Sergeant Rivera advised the team to detain Haskins, who was still at 49 Pine Street, and defendant who was in front of 55 Pine Street. Haskins and defendant were then transported to police headquarters.
Detective Clavijo took part in Dennis’s arrest based upon the information received from Sergeant Rivera. Detective Clavijo stated the information he and his partner, Detective Santiago, received from Sergeant Rivera was that “the black male wearing the blue knit cap, the blue vest and blue jean pants was heading south, actually running south, on Pine Street towards Autumn Street.” Once Detective Clavijo saw the individual who met the description, he followed the individual down Pine Street and stopped him at 537 McKinley Street.
Upon arriving at the McKinley Street property, Detective Santiago, spoke to Dennis by talking to him from the window of their vehicle. Both detectives exited the vehicle in plain clothes, and Detective Clavijo, who was wearing his badge around his neck, stated in a loud voice, “[s]top, police.” Dennis stopped and then stated he had crack cocaine in his right front pants pocket. Detective Clavijo retrieved the suspected crack cocaine, secured it and placed Dennis under arrest. Detective Clavijo and Detective Arroyo, who with Detective Larson, had stopped the Ellis vehicle, then went to Pine Street and based on Rivera’s description, placed Haskins and defendant under arrest. No additional narcotics were recovered.
At headquarters, Dennis, Ellis, Haskins and defendant were searched. No drugs were found on Haskins and defendant, only money. Most notably, defendant was carrying $568.00, but no narcotics were found on him. No narcotics were found in the rear of 55 Pine Street either. At headquarters, members of the backup team gave Sergeant Rivera the substances that the buyers allegedly purchased from Haskins and defendant. Sergeant Rivera visually identified the substance as crack cocaine, which, upon subsequent testing, was confirmed as cocaine.
At trial, Ellis stated that he went to Pine Street, got out of his car, saw someone that he knew and asked him where he could buy “$20 worth of base.” He identified Haskins as the “someone” who directed him to the seller and identified defendant as the seller. Ellis described that after he went to the back of the premises, he met defendant, gave him money, received the crack cocaine and then drove away only to be pulled over by the police. Ellis had some cocaine on his front seat and a dollar bill wrapped around cocaine in his sock along with a pipe as well as aluminum foil. The cocaine in the aluminum foil came from the Pine Street transaction. Ellis admitted at trial that he pled guilty to the charge of possession of a controlled dangerous substance in exchange for testifying for the State at this trial.
On appeal, defendant raises the following issues:
POINT I: TRIAL COURT ERRED IN NOT GRANTING DEFENDANT’S MOTION FOR A JUDGMENT OF ACQUITTAL IN VIOLATION OF R. 3:18-1.
POINT II: THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BY FAILING TO GIVE AN ADEQUATE INSTRUCTION ON ACCOMPLICE LIABILITY, FORECLOSING ANY POSSIBILITY THAT DEFENDANT COULD BE FOUND NOT GUILTY.
POINT III: THE TRIAL COURT VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHTS BY FAILING TO APPROPRIATELY WEIGH THE AGGRAVATING AND MITIGATING FACTORS AND HENCE SENTENCED DEFENDANT TO AN UNREASONABLE TERM OF YEARS.
Defendant urges that he was entitled to a judgment of acquittal at the end of the State’s case. In denying the motion to dismiss, the judge commented:
The broad test for the [de]termination of an application of this kind by the Defense is whether the evidence at this point is sufficient to warrant a conviction of the charge involved pursuant to rule — court rule 3:18-1.
More specifically, the question the trial Judge must determine is whether viewing the State’s evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony, as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable Jury could find guilt on the charge beyond a reasonable doubt.
Of course that’s State vs. Reyes, [50 N.J. 454, 458-59 (1967)]. And there is –this is a circumstantial case. The Jury could, if they accept the credibility of the testimony, find that the officer observed transactions, exchange of currency for an item too small to be identified. That the person who allegedly received the small item in exchange for paper currency was stopped thereafter and was found to have crack cocaine on his possession. In fact one of the purchasers testified to having purchased the cocaine consistent with the way the officer says the transaction went, verifying that.
So based on the circumstantial evidence in the case, I’m satisfied that pursuant to Reyes, the State is entitled to have the case go forward. The motions for Judgment of Acquittal are denied. A Jury could reasonably find from all the evidence in the case that the Defendants were involved in the distribution of crack cocaine and certainly could find there was — there is a basis for accomplice liability by reason — or purposely promoting or facilitating the distribution of cocaine by aiding or assisting in that process by directing buyers to the — supplied.
A court shall enter an order for a judgment of acquittal only “if the evidence is insufficient to warrant a conviction.” R. 3:18-1. The standard to be applied to determining a motion for a judgment of acquittal at the conclusion of the State’s case is set forth in State v. Reyes, 50 N.J. 454 (1967):
[T]he question the trial judge must determine is whether, viewing the State’s evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[Reyes, supra, 50 N.J. at 458-59.]
Under Rule 3:18-1, the trial court “is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.” State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). See also State v. Spivey, 179 N.J. 229, 236 (2004). “An appellate court will apply the same standard as the trial court to decide if a judgment of acquittal was warranted.” State v. Harris, 384 N.J. Super. 29, 52 (App. Div.) (stating “we must view the State’s evidence, in its entirety and giv[e] the State the benefit of all its favorable testimony and all of the favorable inferences to be drawn from that testimony to determine whether a jury could find guilt beyond a reasonable doubt under the statute”) (internal quotations omitted), certif. denied, 188 N.J. 357 (2006); State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004) (“The trial judge must consider only the existence of such evidence, not its ‘worth, nature, or extent.'”) (quoting Kluber, supra, 130 N.J. Super. at 342). “If the evidence satisfies that standard, the motion must be denied.” State v. Felsen, 383 N.J. Super. 154, 159 (App. Div. 2006).
We are satisfied that reviewing the evidence in its totality, the State met its burden, and the judge correctly denied the motion. Defendant, in his brief, parses the testimony and events focusing on, for example, the exchange of money as not forming the basis of criminal conduct sufficient to survive a motion. Here, the officers engaged in a methodical piecing together of facts including the exchange of currency for “objects” coupled with later arrest and apprehension of drugs from a purchaser who ultimately identified defendant as the seller. While each element might not survive, the totality of the described events clearly meets the State’s burden. We find no merit in this claim.
We reach the same result regarding the accomplice charge. We first note that there was no objection to the charge, and we must determine whether, if erroneous, the alleged defective charge was “clearly capable of producing an unjust result.” R. 2:10-2; State v. Adams, 194 N.J. 186, 206-07 (2008).
Here, the judge followed the Model Jury Charge, a practice sanctioned by our Supreme Court. State v. R.B., 183 N.J. 308, 325 (2008) (noting that “insofar as consistent with and modified to meet the facts adduced at trial, model jury charges should be followed and read in their entirety to the jury”). The judge provided the requisite definitions in the context of the entire charge, and we perceive no basis for our intervention.
Finally, we conclude that defendant’s sentence was appropriate. The judge’s conclusion that defendant did not establish mitigating factors is well-supported by the record.
1 Two additional counts of second-degree distribution of a controlled dangerous substance within 500 feet of a public park, building or housing facility, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5a, were dismissed.
2 The first names of Detectives Larson, LeConte and Cassiano are not set forth in the record.
April 8, 2009