February 8, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS ROSARIO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-05-0639.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2006
Before Judges Holston, Jr. and Grall.
Defendant Luis Rosario appeals from a final judgment of conviction and sentence. Tried to a jury, defendant was found guilty of possession of heroin, a crime of the third degree, N.J.S.A. 2C:35-10a(1) (count one); possession of heroin with intent to distribute, a crime of the third degree, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); and possession of heroin within a school zone, a crime of the third degree, N.J.S.A. 2C:35-7. The court merged defendant's convictions on counts one and two into his conviction on count three and sentenced defendant to a five-year term of incarceration, three of which must be served without possibility of parole. The court also imposed a $50 VCCB assessment, a $75 SNSF assessment, a $30 LEOTEF penalty, a $50 lab fee and a $1000 DEDR penalty. This appeal followed.
Officer Robert Keily of the Elizabeth Police Department testified on behalf of the State in opposition to defendant's motion to suppress the heroin defendant possessed. In response to citizens' complaints about drug trade near the intersection of Fifth and Fulton Streets in the City of Elizabeth, Keily and four other officers set up a surveillance on January 22, 2002. The intersection was one known for narcotics trafficking; Keily previously had made as many as twenty-five to seventy-five arrests for drug crimes in the same area.
The officers were not in uniform or a marked police car. Before dark and from a distance of seventy-five to one hundred feet, Keily saw defendant approach Franciso Cabrera, who was standing on the southeast corner of the intersection. After a brief conversation, defendant walked away from Cabrera and around the corner. Although Keily lost sight of defendant, within a minute defendant returned and handed Cabrera an object that was small. Suspecting that defendant had gone to a place where drugs were hidden, the officers moved to a better vantage point. Defendant and Cabrera stayed together. Keily saw a third man approach defendant and Cabrera. That man handed Cabrera what appeared to be money and accepted a small object from him. Five minutes later another man approached, gave Cabrera something that looked like money and received a small object in return. Cabrera and defendant crossed the street where they stood with Ramon LaPuerta and two women. A man riding a bicycle stopped, handed defendant what appeared to be cash and accepted a small object from him.
Having seen three hand-to-hand exchanges within a ten-minute period, the officers drove toward the bakery, got out of their car and approached the group. LaPuerta dropped a clear-plastic bag on the ground. Keily grabbed defendant, searched him and found four glassine bags of heroin. Defendant was taken to police headquarters. While the officers were completing paperwork, defendant reached behind the waistband of the sweatpants he wore under his blue jeans and handed the officer ten glassine bags of heroin that were wrapped together in magazine paper.
Cabrera testified in support of defendant's motion to suppress. He admitted that he and defendant were friends but denied engaging in or seeing defendant engage in any drug transactions on the day of the arrest. Defendant also testified. He admitted that he, Cabrera, LaPuerta and others were in front of the bakery but denied any knowledge of or involvement in drug transactions that day.
The judge credited Keily's testimony and determined that the police had probable cause to arrest before they arrested and searched defendant. The judge determined that the search was constitutionally valid because it was incident to an arrest supported by probable case.
At trial Keily gave testimony consistent with his testimony at the motion hearing. The State also introduced evidence sufficient to establish that the substance defendant possessed was heroin and that the transactions took place within 1000 feet of Charles J. Hudson School. In addition, Keily testified that when defendant produced the magazine-wrapped bundle of heroin at headquarters he said something, but Keily could not recall what defendant said. When defense counsel asked Keily whether he had come to know defendant since the incident, Keily said he had dealt with defendant before this incident.
On appeal defendant raises the following issues:
I. THE MOTION COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE OFFICER KEILY DID NOT HAVE PROBABLE CAUSE TO ARREST THE DEFENDANT AT THE TIME HE REACHED INTO THE DEFENDANT'S WAISTBAND AND SEIZED FOUR (4) GLASSINE ENVELOPES OF SUSPECTED HEROIN.
II. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION AND BY THE TRIAL COURT'S FAILURE TO ISSUE, SUA SPONTE, AN AMELIORATIVE CHARGE AS A RESULT OF THE PROSECUTOR'S COMMENTS (Not Raised Below).
A. THE PROSECUTOR COMMITTED PLAIN ERROR BY MISREPRESENTING THE FACTS IN SUMMATION (Not Raised Below).
B. THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO GIVE THE JURY A HAMPTON/KOCIOLEK INSTRUCTION (Not Raised Below).
III. TESTIMONY THAT OFFICER KEILY HAD PREVIOUSLY "DEALT WITH" THE DEFENDANT CONSTITUTED PLAIN ERROR BECAUSE IT IMPROPERLY SUGGESTED THAT THE DEFENDANT HAD A PRIOR CRIMINAL RECORD AND A CRIMINAL DISPOSITION (Not Raised below).
IV. IMPOSITION OF THE FIVE (5) YEAR BASE CUSTODIAL SENTENCE ON THE DEFENDANT'S CONVICTION FOR THIRD DEGREE POSSESSION OF HEROIN WITH THE INTENT TO DISTRIBUTE WITHIN A SCHOOL ZONE ON COUNT THREE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
A. IMPOSITION OF THE FIVE (5) YEAR BASE TERM WAS MANIFESTLY EXCESSIVE.
B. IMPOSITION OF A BASE SENTENCE IN EXCESS OF THE THEN-EXISTING PRESUMPTIVE TERM VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
Our standard for review of a decision on a motion to suppress evidence is limited. We consider whether the judge's findings "'could reasonably have been reached on sufficient credible evidence present in the record'" and whether the judge's legal conclusions are consistent with controlling legal principles. See State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
The controlling legal principles are well-established. A search without a warrant is presumed invalid "'unless it falls within one of the recognized exceptions to the warrant requirement.'" State v. Moore, 181 N.J. 40, 44 (2004) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)). A search conducted incident to an arrest that is based upon probable cause is among the recognized exceptions. Id. at 45; see Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed. 2d 685, 694 (1969); State v. Oyenusi, 387 N.J. Super. 146, 159 (App. Div. 2006) (noting that aside from its rejection of the bright-line rule established in New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed. 2d 768, 775 (1981), the New Jersey Supreme Court generally "has not 'afforded greater protection regarding the scope of a search incident to a lawful arrest under our State Constitution than that provided in Chimel'" and quoting State v. Dangerfield, 171 N.J. 446, 462 (2002)).
"'Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed.'" Moore, supra, 181 N.J. at 46 (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000), cert. denied, 531 U.S. 1146, 121 S.Ct. 1083, 148 L.Ed. 2d 959 (2001)) (alterations in Moore). Where there is "'a reasonable ground for belief of guilt,'" there is probable cause. Ibid. (quoting Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 800, 157 L.Ed. 2d 769 (2003)). In evaluating the proofs presented, courts must consider the "totality of the circumstances," including the nature of the area, information received and knowledge the officer has acquired through experience. Ibid.
In this case, the officers set up a surveillance in response to citizens' complaints about drug-trafficking in an area known to them as one in which that crime was common. Keily saw defendant talk to Cabrera, leave and return to hand him something. Suspecting that defendant had gone to a place where he had hidden drugs, the officer watched the men. He saw Cabrera exchange small objects for money during two different encounters with persons who approached him on the street. He saw defendant complete a similar transaction. This experienced officer's observation of three transactions within a ten-minute period in an area known for drug trade was more than adequate to support a reasonable ground for the belief that defendant had transferred drugs. Thus, the arrest was lawful and the contemporaneous search of defendant's person for evidence of that crime was constitutionally valid.
Defendant argues that his conviction must be reversed because the prosecutor referred to a fact not in evidence during his summation and the judge did not give an appropriate jury instruction. The arguments are based on the prosecutor's description of defendant's conduct at the police station. As noted above, there was testimony that defendant gave an officer at the police station drugs that were concealed in his undergarments and overlooked by the officers who searched him at the scene of the crime. In referring to what defendant did at headquarters, the prosecutor said defendant "reached in and said 'Here.'" Stressing that there was no testimony about what he said when he gave the officer the drugs and relying upon State v. Hampton, 61 N.J. 250 (1972), and State v. Kociolek, 23 N.J. 400 (1957), defendant argues that the comment was improper and that the judge should have instructed the jurors to disregard the statement if they did not find the prosecutor's argument credible.
Both arguments lack sufficient merit to warrant more than a brief discussion. R. 2:11-3(e)(2). Because defendant did not object to the argument or request the instruction at the time of trial, he must establish plain error, which is error that could have led the jurors to return a verdict they would not have otherwise reached. R. 2:10-2; see State v. Macon, 57 N.J. 325, 335 (1971); State v. Wilson, 57 N.J. 39, 51 (1970). We cannot conclude that the prosecutor's reference to the word "Here" could have influenced the verdict in any way. There was competent evidence that defendant removed the hidden drugs and handed them to the officer; that is conduct equivalent to uttering the word "Here." Nor can we find any error based upon the jury instruction. The charge that defendant claims the court should have given is one designed to guide jurors in considering evidence of statements a defendant is alleged to have made. See Hampton, supra, 61 N.J. at 271-72; Kociolek, supra, 23 N.J. at 421-22. That charge has no relevance to closing arguments.*fn1 The judge gave an instruction adequate to address defendant's claim by directing the jurors that their recollection of the facts was controlling. We presume that the jurors followed that charge. See State v. Bauman, 298 N.J. Super. 176, 207-08 (App. Div.), certif. denied, 150 N.J. 25 (1997).
Defendant did not object or ask for a limiting instruction when Keily, giving an arguably unresponsive answer to a question posed by defense counsel, said he had dealt with defendant before this incident. We review this claim raised for the first time on appeal for plain error and conclude that it lacks sufficient merit to warrant extended discussion. R. 2:10-2; R. 2:11-3(e)(2). Considered in the context of the overwhelming evidence of guilt presented at this trial, the officer's vague statement was incapable of leading the jurors to return a verdict that they would not have reached if the officer had not said he dealt with defendant in the past. See Macon, supra, 57 N.J. at 335.
At the time of sentencing, the judge found three aggravating factors and sentenced defendant to the maximum term. Accordingly, we remand this "pipeline" case for reconsideration of the sentence in light of State v. Natale, 184 N.J. 458, 495-96 (2005); see State v. Thomas, 188 N.J. 137, 153 (2006). Because we are remanding for resentencing, we decline to address defendant's claim that his sentence is excessive.
Affirmed in part and remanded. We do not retain jurisdiction.