Fifty-seven individuals were charged as part of Operation “Crossroads Crackdown,” a six-month investigation into the distribution of cocaine and heroin in Somerset, Middlesex and Union counties. Police allege that the original target, Harry Jackson, Sr. of Bound Brook, served as the Somerset County “crossroads” for two separate CDS distribution operations—a Plainfield-based heroin distribution operation run by defendant Rickey Currie, of Plainfield, and a Franklin-based cocaine distribution operation run by defendant Angel Guadalupe, of Somerset. Police also allege that Patrick Hendrix of Elizabeth served as Currie’s “runner,” making heroin sales when directed by Currie, and meeting with Currie’s heroin supplier, Daryl Cooper, of Newark to obtain the heroin they sold. Somerset County has a thing for making large busts and like the others, this one will keep many lawyers very busy.
Story is here.
Frank J. Stillo Jr. of Pohatcong Township, was charged with being the leader of a narcotics trafficking ring and conspiracy to distribute Oxycontin and other controlled dangerous substances. His bail is set at $200,000 bail.
His two sons and five others were charged with conspiracy to distribute a controlled dangerous substances. Those arrested are Jonathan W. Stillo, Brandon M. Stillo, Anthony Giammona, Ronald P. Richie, Richard Faranda, Alexander E. Johnson and Daniel Moore.
Authorities said that Frank Stillo would obtain Oxycontin and other prescription drugs in Essex County and distribute them in Warren County to people who would in turn distribute the drugs to others. They allege that about 1,000 pills a week were being purchased and distributed, ranging in size from 10 to 80 milligram pills and in price from $10 to $65 a pill. The arrests capped a more than three-month undercover drug operation.
Story is here.
Darnell Williams and Eric Villalona both of York, Pa., have been charged with first-degree possession of cocaine with intent to distribute, third-degree possession of marijuana with intent to distribute and possession of drug paraphernalia after a traffic stop in Warren township led to the alleged discovery of about $24,000 in cocaine and marijuana in the car.
Police pulled over the men for tailgating and when they approached the vehicle, police allegedly observed marijuana on the lap of Villalona. Ok great, you can arrest Villalona for that and if everything else checks out, Williams is free to leave. Here’s the odd thing about this. Police call for a K-9 and the dog alerts to more drugs. But how do they know that the dog is not smelling the same drugs that they already found on Villalona. The dog apparently hit on the trunk and so they searched it and found the rest.
This is an interesting case and at least one of these guys has a good defense. If the car belongs to neither man, then they both have a great defense. We have a case along these lines in the office right now; actually a few of them. While not a slam dunk case, there is a good shot to win them as there is for this case.
Story is here.
STATE OF NEW JERSEY,
Before Judges Payne and Waugh.
On appeal from Superior Court of New Jersey, Law Division Cumberland County, Indictment No. 06-10-996.
Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).
Anne Milgram, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).
Defendant Louis Stewart appeals his conviction, following a guilty plea, for second-degree possession of cocaine with intent to distribute. N.J.S.A. 2C:35-5(a)(1), -5(b)(2). Prior to entering the plea, Stewart moved unsuccessfully to suppress evidence seized as the result of a warrantless search at 105 Bank Street in Bridgeton. On appeal, Stewart contends that the motion should have been granted and the evidence suppressed. We disagree and affirm.
We discern the following facts from the record made during the evidentiary hearing on the motion to suppress, which was held on August 10 and 16, 2007.1 Detective Louis Santiago of the Bridgeton Police Department was on duty on June 10, 2006. At that time, Santiago was with the Anti-Crime Team (ACT), which is a “plain clothes assignment dealing with street level narcotics and quality of life issues.” Santiago was working the night shift. His assigned area was the 100 block of Bank Street. Santiago testified that in June 2006, the 100 block of Bank Street was “laced with illicit narcotic activity, prostitution, [and] robberies.”
Santiago and other members of the unit walked through an alleyway towards 110 and 112 Bank Street. Once they arrived at that point, they began to watch 105 Bank Street, which they knew to be the residence of Gloria Hicks. Santiago was familiar with Hicks from previous calls to her residence. Three weeks prior to the night in question, Hicks had come to the police station and reported that she had been assaulted by James McNair at her home. She told the officers that she had a bad drug habit and that “things were getting out of control in her residence.” Santiago told Hicks that he would from time to time check up on her to make sure that everything was alright at her home.
Santiago positioned himself across the street from 105 Bank Street and observed it for fifteen to twenty minutes. He saw people going into 105 Bank Street through the front door and, on occasion, the back door. After a very brief time, the individuals would leave Hicks’s residence and go across the street to 108 Bank Street. They would remain at 108 Bank Street for a few moments and then return to 105 Bank Street. They would knock and, when the door opened, enter 105 Bank Street.
After watching the activity described above, Santiago and other members of the team crossed the street to observe 108 Bank Street. After making further observations, they went to the back of the house directly across from 110-112 Bank Street – one house north of 105 Bank Street. From that location Santiago watched the back of 105 Bank Street and observed “a continuation of the pedestrian traffic in and out of the residence.”
According to Santiago, the activities he observed were consistent with drug dealing. Santiago decided to go to the back door, knock, and attempt to speak with Hicks. However, as Santiago and Detective Kirsten Loew got to the landing of the back door, Bobby Taylor and McNair approached the back door from the front of the house. As Taylor stepped onto the landing, he looked over and saw Santiago, who was himself approaching the landing. Santiago described Taylor’s reaction as follows:
He looked at us, his eyes opened up and he stepped back, and he began to mumble under his voice. I couldn’t understand what he was saying. Bobby Taylor looked at us, and again, he had an expression of shock on his face.
Without knocking, Taylor opened the back door and walked into the house. The door stayed open, but McNair stood on the landing without entering the house. Santiago walked up to the door, stood at the doorway, and looked into the house, but did not cross through the doorway at that point.
As Santiago was approaching the doorway, he had observed people sitting in the living room. Once the back door was opened, he was able to see the range, the kitchen sink, and a counter. Santiago saw a plastic bag and a scale on the counter. He saw green vegetation, which appeared to be marijuana, inside the bag.
There were eight people in the living room, with Stewart and Howard Russell sitting near the scale and the marijuana. Russell was closest to the marijuana, and Stewart was to his right. At that point, Santiago was less than ten feet from the counter top and two or three feet from Stewart and Russell.
Loew asked Santiago: “[W]hat are they doing over there?” When Santiago looked over toward Stewart and Russell, the two men were fumbling with a clear plastic bag. Santiago likened their motions to a game of hot potato – neither man wanted to hold the bag. Stewart eventually ended up with the bag, which he then threw behind the seats.
Santiago was familiar with both Stewart and Russell. Santiago also knew Taylor from a prior, drug-related offense. Based upon what Santiago saw Stewart and Russell doing with the plastic bag and his knowledge about the neighborhood and the house, Santiago believed that they were trying to get rid of drugs. Santiago made these observations within seconds of being at the door of the house.
After making his observations, Santiago and other members of his team entered the house and handcuffed both Stewart and Russell. The plastic bag handled by Stewart and Russell was found to contain crack cocaine.
On August 16, 2007, Judge Timothy G. Farrell denied the motion to suppress. After finding Santiago’s testimony credible and reciting the facts adduced at the hearing, Judge Farrell gave the following reasons for denying the motion.
When law enforcement officers execute a valid search or seizure of an individual, any contraband located in plain view may be seized. Arizona v. Hicks, 480 U.S. 321, [107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987)]; Payton v. New York, 445 U.S. 573, [100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)]. The initial intrusion by the police must be lawful. In other words, it must be justified by a warrant or recognized exception to the warrant requirement. The observation of the item must be made from a permissible vantage point; that is the officers involved must have a right to be where they are when they perceive the existence of the evidence.
There are two additional requirements that have to be satisfied for the plain view exception to apply. First, the officer  has to discover the evidence inadvertently, meaning that he did not know in advance where the evidence was located, or intend beforehand to seize it. Next, it has to have been immediately apparent to the police that the items in plain view were evidence of a crime or contraband, otherwise, subject to seizure. Coolidge v. New Hampshire, 403 U.S. 443, [91 S. Ct. 2022, 29 L. Ed. 2d 564] (1971); State v. Bruzzese, 94 N.J. 210, 236-37 (1983)[, cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)]; State v. Padilla, 321 N.J. Super. 96, 109 (App. Div.), [certif. denied, 162 N.J. 198 (1999)].
The immediately apparent language should not be construed to mean that the officer knew that certain items were contraband, or evidence of a crime. It is sufficient that the police officer, from a permissible vantage point, has probable cause to believe that the item observed was contraband, or evidence. Bruzzese, [supra, 94 N.J.] at 236-37.
Here the State suggests that the officers had the right to be where they were, because it was an area known as the curtilage part of the property where members of the public were permitted to be. Curtilage is land adjacent to a home and may include walkways, driveways, and porches. State v. Johnson, 171 N.J. 192, 208-09 (2002). Whether the fourth amendment safeguards an area of curtilage depends on a consideration of various factors, including whether the area is included within an enclos[ure] surrounding the home, the nature of the uses to which the area is put, the steps taken by the resident to protect the area from observation by people passing by. Again, that would be Johnson, [supra, 171 N.J. at 208-09,] as well as United States v. Dunn, 480 U.S. 294, 301, [107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334-35] (1987).
An area within the curtilage to which the public is welcome, such as a walkway leading to an entrance to a home, is not afforded fourth amendment protection, because the resident has given . . . implicit consent to visitors to approach the home from that area. Again, that would be Johnson, [supra, 171 N.J.] at 209.
In other words, when a law enforcement officer walks to a front or back door for the purpose of making contact with a resident, and reasonably believes that the door is used by visitors, he is not unconstitutionally trespassing on that property. Again, Johnson, [supra, 171 N.J.] at 209.
Here, I find that the officers suspected something was afoot in the area of Ms. Hicks’s home, for two reasons, she told them, not on that particular night, but that it was an ongoing problem, and from their experience in the area. I believe Officer Santiago testified today that as part of the ACT he had gone to this home several times, although they had not found any drug transactions at that point, he had been involved in investigations . . . which dealt with drug usage.
. . . [A]nd I agree with [defense counsel], and I don’t think the State disputes it, there was no probable cause to get a search warrant at the time the officers went to the 105 Bank Street. I would suggest there wasn’t sufficient evidence to establish probable cause by seeing people come and go, even with the experience of the officers as to what was going on by the length of time it was taking each person to be in the home, how they were acting, as well as their experience that this was a high drug, or high crime area.
But, I would suggest that it was certainly sufficient evidence which would permit them to investigate further. When you add to that the request of Ms. Hicks for them to keep an eye on her home, I would suggest that the officers — based on that request — had every right to go knock on her door. But, even if we take that out of the equation, I find that  their observations establish that the rear doorway of 105 certainly fit within the public use exception to the protections of the fourth amendment, particularly the night in question. They observed numerous folks coming in and out of 105 Bank Street on the first floor through the doorway, which was eventually approached by Officer Santiago. So, I find that he had a legal right to approach the house and step up onto the porch.
[Defense counsel] suggests that there was a major discrepancy between the police report and Officer Santiago’s testimony, because in the report the officer testified that he was “in the doorway,” when he saw the suspected marijuana. I don’t find any such inconsistency. To me, common usage of the phrase, “in the doorway,” basically means in the area of the doorway. It could be on either side of it. It could be in it. And, I don’t find any inconsistency to suggest that the officer meant, when he wrote the report, that he [had] actually stepped up and [was] standing in the threshold.
I find the officer’s testimony as to where he was located to be credible, and I find that what he observed through the doorway meets the plain view exception. I find that the law enforcement officer had a right to be where he was. I find that what he saw was inadvertent. I acknowledge that the officers had a hunch that there was something going on and that this was an area where drug transactions occurred on a regular basis. But, I find nothing in the record to suggest that they knew what they were going to find when they knocked on the door, which is what Officer Santiago indicated that he intended to do.
Likewise, I find that what he saw was  immediately apparent as being contraband,  or evidence, with regards of the sale of a controlled dangerous substance, and that he had probable cause to believe that the marijuana and the scale were evidence of a crime. Thus, I find that the officers had the right to then enter the structure once they saw the evidence in plain view.
Now, [defense counsel] argues that this was a police-created exigency, as prohibited in State v Hutchins, 116 N.J. 457, 460 (1989). . . . I find that  the fact pattern in this case is markedly different than the fact pattern in Hutchins. Our Supreme Court and other appellate courts have recognized that the mere fact that police announce their presence or show themselves does not create an exigency. That’s not a police-created exigency, because if it was, every time the police were present some place they would be creating the exigency and therefore there would be no exception.
What happened in Hutchins is, the police had a tip that somebody was going to be selling drugs in the house, and they went and knocked on the door, and someone, the occupant, came to the doorway, and he had something in his hand, but they couldn’t see what it was, they just had a hunch that it was CDS. And, when they wanted him to show them, or to answer questions, he proceeded to go back into the home, which he had every right to do.
The police then followed him into the home and basically forced him to produce what he had [in] his hand. That’s not at all what we had here. I find that the fact that the police were surveilling the location because they suspected something, is not a police-created exigency, and when they get to the doorway, they didn’t have to do anything except look. And, when they look in the doorway, where I believe it was Taylor had entered[,] what they saw at that point was in plain view. So, I find that the prohibition announced by the New Jersey Supreme Court in Hutchins does not apply here.
The State argues that once the officers saw what they saw, there were exigent circumstances for them to enter the home and secure the evidence. And, I agree. This is not the kind of case where they could have secured the house, waited for a warrant, because at that point that would suggest that they did have probable cause. The house was filled with people. Entering the house to secure the people would have created the same problem as entering the house to secure the evidence.
And, I find, as is often the case in drug related cases, that this is a case where destruction of evidence was an issue. . . . I don’t find that Mr. Stewart, or Mr. Russell, had attempted to throw  what they had in their hands into a toilet and flush it, or to throw it out the window, or to pass it to someone who was running out the door. But, what we have here is an apartment, or a house, that’s got at least eight people [in] it when the police arrive.
They have plain view evidence of suspected marijuana and scales. I would suggest that  what they see Mr. Stewart and Mr. Russell doing would cause a reasonable officer to believe that what they were passing back and forth, and trying to hide, was contraband, and there was a need to secure it.
On that same date, August 16, 2007, Stewart accepted a plea offer from the State. In exchange for entering a plea of guilty to count two, second-degree possession with intent to distribute cocaine, the State agreed to recommend that he receive a sentence of five years, with a two-and-one-half year period of parole ineligibility. Judge Farrell accepted Stewart’s conditional guilty plea, R. 3:9-3(f), finding that there was a sufficient factual basis to do so.
On October 19, 2007, Judge Richard Geiger imposed the recommended sentence, together with all mandatory fines and penalties. Stewart does not challenge the sentence on appeal.
This appeal followed.
Stewart raises the following issue on this appeal:
DEFENDANT’S MOTON TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE DRUGS WERE THE FRUITS OF AN UNLAWFUL ENTRY INTO THE HOUSE. AS THE DETECTIVE MADE HIS “PLAIN VIEW” OBSERVATION FROM A CONSTITUTIONALLY PROTECTED AREA OF THE HOUSE, NAMELY THE CURTILAGE, AND THE SEARCH OF THE HOUSE WAS WITHOUT A WARRANT, THE DRUGS SEIZED WERE “FRUITS OF THE POISONOUS TREE” AND MUST BE SUPPRESSED.
Having reviewed the record, Judge Farrell’s thoughtful opinion denying the motion to suppress, and the arguments raised in the briefs, we find Stewart’s appellate arguments to be without merit and not warranting extended discussion in a written opinion on appeal, R. 2:11-3(e)(2), and affirm essentially for the reasons set forth by Judge Farrell in his oral opinion. We add only the following.
Judge Farrell’s findings of fact, as to which our scope of review is “extremely narrow,” were fully supported by the evidence adduced at the hearing. State v. De La Paz, 337 N.J. Super. 181, 190 (App. Div.), certif. denied, 168 N.J. 295 (2001). Although a trial judge’s interpretation of the law is not entitled to such deference, ibid., we find that Judge Farrell correctly applied the law with respect to “curtilage,” as outlined in State v. Johnson, 171 N.J. 192, 208-09 (2002), in determining that Santiago did not require a warrant to go onto the back porch of 105 Bank Street.
Santiago had been asked by Hicks to assist her with respect to problems at her home; and had promised to check on her on occasion. He had observed several people go up onto the porch and enter the house through the back door. It was reasonable for Santiago to decide to attempt to speak with Hicks. Once lawfully on the porch, he observed contraband in plain view, after Taylor opened the door, entered, and failed to close it. A warrant is not required when a police officer is: (1) lawfully present in the viewing area; (2) the officer inadvertently discovers the evidence in plain view; and (3) it is “immediately apparent” to the police officer that the “items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.” Johnson, supra, 171 N.J. at 207; see also State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
It was also reasonable for Santiago to seize the drugs at the time because it was extremely unlikely that they would still be there when he returned with a warrant, had he sought one, inasmuch as he observed Stewart and Russell attempting to hide the plastic bag. See State v. Stott, 171 N.J. 343, 358 (2002).
1 At the same time, there was a motion to suppress a statement given by Stewart. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Miranda issue was not preserved for appeal.
SUPERIOR COURT OF NEW JERSEY
STATE OF NEW JERSEY,
RAYMOND R. MARTIN,
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,
Randy P. Davenport argued the cause for
Eric Mark, Assistant Somerset County Prosecutor,
argued the cause for respondent (Wayne J. Forrest,
Prosecutor, attorney; Mr. Mark, on the brief).
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:
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.
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.
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.
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)
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)
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.
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.
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).
STATE OF NEW JERSEY,
April 20, 2009
Submitted October 21, 2008 – Decided
Before Judges Collester and Graves.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
Jacobs & Barbone, attorneys for appellant
(Louis M. Barbone, of counsel and on the
Theodore F. L. Housel, Atlantic County
Prosecutor, attorney for respondent (James F.
Smith, Assistant Prosecutor, of counsel and on the brief).
Pursuant to a negotiated plea agreement, defendant Christopher Graham entered a guilty plea to three counts of a 105-count indictment against him, namely, conspiracy to distribute a controlled dangerous substance, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(2); operating a controlled dangerous substance production facility, contrary to N.J.S.A. 2C:35-4; and possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1). On April 20, 2007, he was sentenced to an aggregate term of twenty years.1
Defendant’s convictions stem from an extensive, ongoing investigation of narcotics trafficking in Atlantic County which began on January 4, 2006, when members of the Atlantic County Prosecutor’s Narcotic Strike Force arrested an individual in Pleasantville with three ounces of crack cocaine and a shotgun. This individual agreed to serve as a cooperating witness (CW) in the Strike Force’s ongoing investigation. He told members of the Strike Force that he had purchased the crack the previous day from Troy Sanchez and that Sanchez gave him the shotgun to hide for him. He said he had been dealing with Sanchez for about two years, purchasing two ounces of cocaine from Sanchez roughly every four days. An inquiry into Sanchez’s background revealed that he had been arrested five times for drug offenses over the past decade and that one arrest culminated in a conviction for distribution of CDS and a seven-year sentence.
On January 6, 2006, the CW made a controlled purchase of one and one-half ounces of crack cocaine from a Sanchez associate. Four days later the CW attempted to arrange a purchase of the same quantity of crack cocaine, but the transaction was not completed because Sanchez had only powdered cocaine. Two days later on January 12, 2006, the CW made a second controlled purchase of two ounces of crack cocaine from the same Sanchez associate and paid $1,650. The third controlled purchase of crack cocaine was made on January 16, 2006, and the CW paid $1,450 to Sanchez’s associate.
Four days after his third controlled purchase of crack cocaine, the CW was found dead in Atlantic City. He had been strangled and shot.
Investigator Tracy P. Wich of the Strike Force then prepared an application for an order authorizing the interception of wire and electronic communications from the telephone Sanchez used to arrange the sales of crack cocaine to the CW. Wich’s application stated he had been employed by the Division of Criminal Justice for approximately seven years, the last three with the Major Narcotics Bureau. He received training in narcotics investigations through national courses and in-service training, participated in more than 1,000 narcotics-related investigations, and had experience preparing applications for communications data warrants and monitoring wiretaps.
The application was granted on January 30, 2006, by Judge Albert J. Garafolo, a Superior Court judge designated to review and grant wiretap warrants. Two days later, investigators intercepted a conversation between Sanchez and the defendant during which defendant told Sanchez, “I got that situation for you.” In response, Sanchez said: “Alright, just put that on ice though cause . . . that’s to the side . . . that’s already in . . . . I’m gonna start . . . the day after tomorrow with that. . . .” After defendant answered “Alright,” Sanchez concluded, “I’m ready to come back around though, I’m coming around in a little bit.”
Based on his training, experience and knowledge of facts disclosed by the investigation into Sanchez’s activities, Investigator Wich stated that the conversation related to a cocaine transaction. Wich interpreted the statements by defendant to mean he had cocaine for Sanchez, and that Sanchez wanted defendant to put the cocaine aside so he could sell it to his customers the next day.
Two days later investigators overheard Sanchez arrange for the sale of two ounces of cocaine to an unidentified female. Over the following week investigators intercepted various communications in which Sanchez arranged various illegal transactions involving firearms and the sale of cocaine, Percocet, and marijuana. On February 12, 2006, investigators intercepted another conversation between Sanchez and defendant. Defendant asked Sanchez on that date why Sanchez had not previously called him. Sanchez responded:
Nah, I thought you got, I thought you probably seen the time in the . . . kitchen. . . . I’m like, you know nobody don’t like to get rushed on that shit, you know what I mean? Its all in the in the wrist baby, I ain’t want to, you know what I mean? You needed your concentration. . . .
Defendant replied, “Nah man, on the straight up you don’t even got [to] twirl nothing you just got to pour the water out,” Sanchez said, “Oh right (laughing), oh that’s how you do it? You ain’t twirling nothing, you, you got me straight on that one. . . .”
Wich interpreted this conversation as Sanchez telling defendant he did not call him because he did not want to interrupt defendant’s cooking of powder cocaine into crack cocaine. Defendant’s response meant that he was so experienced with the process he did not have to concentrate on any twirling but, instead, just boiled the ingredients down and poured out the remaining water.
Three days later, on February 15, 2006, defendant and Sanchez spoke again. During this conversation, Sanchez asked defendant, “[W]hat’s the best you can do on a half?” Defendant answered: “I guess . . . you know that number. . . .” Sanchez then asked whether defendant would allow him to “meet the nigga” if Sanchez got “the whole jawn.” Once defendant answered in the affirmative, Sanchez asked, “[S]o if you grab the man for me what’s the tag me like a stack?” Defendant said, “Yeah,” and Sanchez went on, “Aight, instead of twenty three, it’ll be twenty four, right?” Defendant again said, “Yeah.”
Wich said that the defendant and Sanchez were discussing a future purchase of a large quantity of cocaine. The “half” to which Sanchez referred in the conversation was one-half a kilogram of cocaine. When defendant responded, “I guess . . . you know that number,” Wich said it indicated defendant had sold the same quantity to Sanchez in the past. When Sanchez spoke of getting the “whole jawn,” Wich’s interpretation was that he wanted to purchase a kilogram of cocaine, for which he normally would pay $23,000. However, he would have to pay $24,000 if defendant introduced him to the individual from whom defendant was receiving his own cocaine supply.
A check of defendant’s criminal history disclosed he had been arrested ten times and convicted five times. He was twice convicted for illegal possession of a handgun and possession of a controlled dangerous substance as well as receiving stolen property. He also was indicted for distribution of cocaine, possession of a defaced handgun and possession of a firearm by a convicted person, charges which were pending disposition at the time of the Sanchez investigation.
On March 21, 2006, members of the Strike Force followed defendant to Philadelphia where he purchased a kilogram of cocaine. The officers observed him place the package of cocaine in the trunk of his car. He was stopped after crossing back into New Jersey. Following a canine sniff, a search warrant was obtained for the vehicle, and the cocaine was seized. Defendant was arrested and subsequently named in a 212-count indictment charging him with, inter alia, second-degree conspiracy to distribute cocaine, first-degree operation of a CDS production facility and first-degree possession of CDS with intent to distribute. Following the denial of his motion to suppress the intercepted communications and to dismiss the indictment by Judge Michael A. Donio, defendant entered his plea of guilty. This appeal followed.
Defendant presents the following arguments:
POINT I – ANY AND ALL INTERCEPTIONS AND SEIZURE OF ELECTRONIC, ORAL OR DATA COMMUNICATIONS REGARDING DEFENDANT SHOULD HAVE BEEN SUPPRESSED PURSUANT TO N.J.S.A. 2A:156A-2.1.
POINT II – ANY AND ALL EVIDENCE DERIVED FROM THE INTERCEPTIONS SHOULD HAVE BEEN SUPPRESSED.
POINT III – THE ENTIRE PRESENTATION OF EVIDENCE AT GRAND JURY IS LEGALLY INFIRM, AS ALL OF IT IS DIRECTLY DERIVED FROM THE UNLAWFUL WIRE INTERCEPTIONS.
New Jersey’s Wiretap and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-10, provides in pertinent part that upon consideration of an application a judge may enter an ex parte order authorizing the interception of a wire, electronic or oral communication if based on the facts submitted by the applicant that there is or was probable cause for belief that:
a. The person whose communication is to be intercepted is engaging or was engaged over a period of time as a part of a continuing criminal activity or is committing, has or had committed or is about to commit an offense. . . .
b. Particular communications concerning such offense may be obtained through such interception; [and]
c. Normal investigative procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ. . . .
The Wiretap Act also provides a framework for individuals seeking to suppress evidence gathered from illegal communication and data intercepts. It provides, in pertinent part, that:
Any aggrieved person in any trial, hearing, or proceeding in or before any court or other authority of this State may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on the grounds that:
a. The communication was unlawfully intercepted;
b. The order of authorization is insufficient on its face; or,
c. The interception was not made in conformity with the order of authorization or in accordance with the requirements of section 12 of P.L.1968, c.409 (C.2A:156A-12).
A showing of bad faith on the part of law-enforcement officials is not necessary in order to warrant suppression of evidence obtained in violation of the Wiretap Act. State v. Worthy, 141 N.J. 368, 384 (1995). Nor is the Act’s exclusionary rule conditioned on a predicate finding of an intentional or deliberate violation or evasion of the Act’s requirements. Ibid. What is required to warrant suppression of such evidence is a showing that the substantive elements of the statute were not met. That is, that (1) there was no probable cause for interception, or (2) there was no need for electronic surveillance because of other investigation methods. State v. Murphy, 148 N.J. Super. 542, 548 (1977).
Defendant argues that the probable cause requirement of the Wiretap Act was not met and that there was no “independent investigation” other than the three intercepted phone calls which contained ambiguous phrases used by defendant and Sanchez. Defendant asserts that these phrases were automatically construed by Investigator Wich as detailing large narcotics transactions by simply changing and expanding his glossary of narcotics trafficking code to translate these phrases to support the investigation. We disagree. Considering the extensive investigation as a whole, there clearly existed probable cause to believe that defendant was involved in narcotics trafficking in Atlantic County.
Probable cause exists when an officer has a well-founded suspicion or belief of guilt which may constitute something less than proof needed to convict and something more than a raw, unsupported suspicion. State v. McKenna, 228 N.J. Super. 468, 474 (App. Div. 1998) (citing State v. Davis, 50 N.J. 16, 23 (1967)), cert. denied, 389 U.S. 1054 (1968). It is not a rigid concept; rather, it is “flexible [and] nontechnical.” State v. Novembrino, 105 N.J. 95, 120 (1987). A court determines the existence of probable cause by applying a “common-sense, practical standard.” Ibid. Moreover, in assessing the showing of probable cause upon a motion to suppress, a trial court should not lightly second-guess the determination made by the issuing judge. State v. Kasabucki, 52 N.J. 110, 117 (1968). Rather, the reviewing judge is to re-examine the record for the purpose of assuring that there were sufficient facts upon which the issuing judge could posit his finding of probable cause. State v. Christy, 112 N.J. Super. 48 (1970).
The evidence of the investigation was presented to Judge Garafolo through Wich’s affidavit. He found that there existed probable cause that defendant was involved in an ongoing criminal enterprise. Judge Garafolo’s finding of probable cause is supported by the affidavit, and Judge Donio gave that determination proper weight in his subsequent review. We find no error.
Defendant next argues that the wiretap order should have been denied because of the absence of a showing that other means of investigation were attempted and failed. N.J.S.A. 2A:156A-10(c) requires that on the basis of facts submitted by the applicant there is probable cause for belief that normal investigative procedures have been tried and have failed, reasonably appear to be unlikely to succeed if tried, or appear to be too dangerous to employ. The ongoing investigation conducted in this case featured surveillance, controlled purchases, and the use of a confidential informant who was later murdered. Further, it is clear that the wiretap was a necessary part of the investigation because the nature of the conspiracy itself was extensive and involved large amounts of cocaine.
In State v. Christy, supra, 112 N.J. Super. at 64-65, we held when an attempt to infiltrate an illegal organization failed, a wiretap order was justified. Similarly, in State v. Pemberthy, 224 N.J. Super. 280, 297 (1988), where efforts to introduce a confidential informant to a illegal enterprise would have compromised the investigation, it was reasonable to conclude that such efforts would not have been productive, thus justifying an affiant investigator’s request for a wiretap order. Additionally, where normal investigative techniques failed in a prior, related investigation, that failure may be taken into account in assessing whether such techniques would likely be productive in a successive investigation. Ibid. citing State v. Braeunig, 122 N.J. Super. 319, 326-27 (App. Div. 1973). In arguing that no normal investigative procedures were specifically used, defendant attempts to isolate the investigation against him. But defendant’s convictions were the result of an extremely large-scale, ongoing investigation of an extensive narcotics trafficking operation in Atlantic County, leading to a 217-count indictment of seventeen defendants.
Defendant argues that investigators might have used a cooperating witness against him in the same fashion that they had used such an individual to infiltrate Sanchez’s network at the beginning of the investigation. That CW was murdered, and while the murder was later found to be unrelated to the instant investigation, that was not known until after the wiretap order had been issued. Furthermore, that CW had been dealing with Sanchez for two years before the investigation even began, and the investigators had no potential informant who could approach Sanchez or defendant without arousing their suspicions or thwarting the investigation.
Moreover, physical surveillance had been attempted in this case, and it aroused suspicion. On January 10, 2006, a video surveillance van was parked with investigators inside near the site of the CW’s three controlled purchases. It was abandoned after Sanchez’s sister approached the van, shook it, and attempted to look inside. Investigators also sought to rent an apartment near the site of the CW’s buys. However, they later learned that a maintenance man told people throughout the building that police had rented an apartment to conduct surveillance.
The record satisfies us that the police exhausted standard investigative techniques up to the point where there was a risk that the investigation would be compromised. The State thereby satisfied its burden of establishing that only through a wiretap order could they have garnered sufficient evidence to continue their investigation. Therefore, we find no error in Judge Donio denying defendant’s motion to suppress statements obtained through use of wiretap surveillance.
Defendant’s remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
1 On the same date he was also sentenced on one count of three other indictments, namely, distribution of a controlled dangerous substance and conspiracy to distribute a controlled dangerous substance. These three sentences were concurrent to each other for an aggregate sentence of nine years, which was ordered to run concurrently with defendant’s twenty-year sentence.
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