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State v. Powell


July 20, 2007


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-01-0219.

Per curiam.


Submitted February 7, 2007

Before Judges A. A. Rodríguez and Lyons.

After defendant Ronald J. Powell's motion to suppress his inculpatory written statement to police was denied, he entered a negotiated plea of guilty to three counts of third degree theft, N.J.S.A. 2C:20-3a; third degree possession of a weapon without a firearms purchaser identification card, N.J.S.A. 2C:58-3; and second degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. The State agreed to dismiss a charge of fourth degree unlawful sale of a firearm, N.J.S.A. 2C:58-2. A sentence recommendation was not part of the agreement. The judge imposed concurrent four-year terms of imprisonment on all third degree convictions, and a concurrent eight-year term with a five-year period of parole ineligibility on the second degree conviction. We affirm the denial of the motion to suppress and sentences imposed on the third degree convictions, however, we vacate and remand for resentencing of the second degree conviction pursuant to State v. Natale, 184 N.J. 458 (2005).

At the hearing on the motion to suppress, the State presented one witness, Red Bank Police Detective Thomas Nuccio. According to Nuccio, defendant's father reported to the Red Bank Police Department the theft of his automobile, a 2003 silver Honda Accord, and two firearms, a Remington .22 caliber rifle and a BB rifle. He also indicated that the keys to the Accord, which were inside his home, were missing. Defendant's father indicated to the Red Bank Police Department that he thought defendant may have taken the items because defendant was the only person who had access to the Accord and the rifles.

On August 12, 2003, the Asbury Park Police Department contacted the Red Bank Police Department to report that the Accord had been recovered. Nuccio, who was familiar with defendant, attempted to locate him. During his investigation, Nuccio discovered that there were two open warrants against defendant that had been issued by the Superior Court, Monmouth County, for failure to comply with child support orders.

In the course of being questioned by defense counsel, during cross-examination, Nuccio testified that he had received information from a confidential informant regarding defendant. The following exchange occurred:

Q: Nobody reported ever seeing Ronald Powell actually with the guns, correct?

A: That's not correct, no.

Q: Did somebody report seeing Ronald Powell physically holding the guns?

A: There was information that we had received that Mr. Powell was trying to sell the firearms for drugs.

Q: And it's your testimony that you received that information prior to going to Asbury Park?

A: Yes, sir.

Q: From who?

A: A confidential informant.

On August 16, 2003, Nuccio, dressed in plain clothes and driving in an unmarked vehicle, went to Asbury Park to locate defendant. No police officer from Asbury Park accompanied Nuccio on this search for defendant. This is an apparent violation of N.J.S.A. 40A:14-152, which provides:

The members and officers of a police department and force, within the territorial limits of the municipality, shall have all the powers of peace officers and upon view may apprehend and arrest any disorderly person or any person committing a breach of the peace. Said members and officers shall have the power to serve and execute process issuing out the courts having local criminal jurisdiction in the municipality and shall have the powers of a constable in all matters other than in civil causes arising in such courts.

Eventually, defendant was located and arrested pursuant to the child support warrants. At the Red Bank Police Department, after receiving Miranda*fn1 warnings, defendant gave a statement inculpating himself in the theft of his father's Honda and two rifles. Defendant's statement read:

I was at the house helping my father move his belongings to his new address in Cliffwood Beach. That evening about 6:00 p.m., he gave me a key to the house. Then my father went to Foodtown to get some food for me, and to take with him to Cliffwood. I stayed at the house for a little while and cleaned up. I drank some alcohol that I had and I took a bottle of Johnny Walker Black from my father's bedroom. I drank that bottle too. I left for a little while and came back, I was drunk. I wanted to get high now, I knew that my father had a rifle, I saw the case against the wall. I decided to take the gun and sell it for money and drugs. I took the gun case and walked to Eric Rock's house on Leighton Avenue. I opened the case and I saw that there [sic] two guns in the case, one rifle and one BB gun rifle. Eric agreed to buy them, he gave me a gram of coke and twenty dollars. Then I got high at Eric's house. I was at Eric's house for about forty minutes, its about 12:00-12:30 at night. I left there and went to Gary Wilson's house in Tinton Falls, he works with my father. I hung out with him for a while. Then Gary drove me back to my father's house and dropped me off. Gary said he was going to Asbury, to take someone home, I asked him to wait for me, but he said he would be right back. Then I had a notion to take the car and go to Asbury myself. I wanted to go to Asbury to get some drugs. I took the key for the car from my father's room and took the car. I drove to Asbury Park and drove to [Fourth] Avenue and bought $10 worth of cocaine. I walked around for a while and went to [First] and Bond and bought another $10 and did that as well. It was like 12:00 in the afternoon. I had parked that car on [Fourth] Avenue and it was still there, this whole time. At about 3:30 I went to someone's house near [Fifth] and Langford and went to sleep. I woke up about 9:30 that night. I went and got the car. I moved it behind the Fredrick Douglass Apartments on Madison Avenue. I hung out the rest of the night and went back to [Fifth] and Langford and went to sleep. Sunday I woke up, it was in the afternoon, I went to get the car. I moved the car to [Second] and Berg and parked it. That's where I left it, and I heard yesterday that they had gotten the car back.

Defendant did not testify at the hearing. The judge denied the motion to suppress, finding that Nuccio had the authority to arrest defendant pursuant to the warrant and, in addition, Nuccio had probable cause to arrest defendant. The judge also found, relying on State v. Gadsden, 303 N.J. Super. 491 (App. Div.), certif. denied, 152 N.J. 187 (1997), that the violation of N.J.S.A. 40A:14-152 was a "technical violation."

Defendant appeals pursuant to R. 3:5-7(d)*fn2 and contends that:


Defendant argues that his constitutional right to be free from unreasonable searches and seizures, requires suppression of his written statement. His arguments are that he was unlawfully arrested on the warrants and there was no probable cause to support a warrantless search. Defendant is wrong on both arguments. We conclude that the arrest pursuant to the child support warrants was appropriate, and there was probable cause to support a warrantless search.

At the outset, we note that the arrest or seizure of defendant, based on the child support warrants, did not violate his constitutional rights. By virtue of the warrants, defendant was subject to arrest "at any place within this State," by "any officer authorized by law." R. 3:3-3(a) and (b). Defendant does not argue that he did not receive or did not understand the Miranda warnings. Therefore, we presume that his written statement was given intelligently, knowingly and voluntarily. Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 86 L.Ed. 2d at 707, State v. Bey, 112 N.J. 123, 134 (1988). Moreover, there is no reason to suppress defendant's inculpatory written statement to the police, based on the arrest.

The essence of defendant's argument on appeal is that the apparent violation of N.J.S.A. 40A:14-152 voids his arrest and, therefore, the custodial statement. However, we agree with the judge's conclusion that the violation was a "technical [procedural] violation as opposed to a constitutional violation." Godsden, supra, 303 N.J. Super. at 505-06. There is no claim that this was a "repetitive or recurrent" violation on the part of the Red Bank Police Department. Therefore, the exclusionary rule does not require suppression of defendant's inculpatory written statement. Ibid.

Moreover, we also conclude that Nuccio had probable cause to arrest defendant for theft of the firearms. The following evidence was sufficient to establish probable cause: (1) the statement to the police by defendant's father that the firearms, the Accord and its key were missing and that defendant was the only person who had access to both, (2) the recovery of the Accord in Red Bank, and (3) the confidential informant's statement to Nuccio that defendant was trying to sell the firearms for drugs.

Defendant also contends:


We agree that the sentence on the second degree conviction has to be vacated pursuant to Natale, supra, 184 N.J. at 482.

Defendant was thirty-seven years old at the time of sentencing. He has a history of two indictable and twelve disorderly persons convictions. He has been sentenced to a state prison term on one occasion and sent to state prison because he violated his probation on an indictable offense.

The judge found the following three aggravating factors enumerated in N.J.S.A. 2C:44-1(a): (3) the risk of recidivism, (6) prior criminal record, and (9) the need to deter. The judge also found one mitigating factor, N.J.S.A. 2C:44-1(b)(4), intoxication as a substantial ground tending to excuse or justify defendant's conduct, though failing to establish a defense. According to the judge's assessment, the aggravating factors were preponderate.

From our careful review of the record, we conclude that the sentencing factors identified by the judge are amply supported by sufficient credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 161 (1964). The sentences are in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). Moreover, the sentences do not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

However, we conclude that the sentence imposed on the second degree conviction for possession of a weapon by a convicted felon does not comply with the mandates of Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 2536, 159 L.Ed. 2d 403, 412 (2004), State v. Abdullah, 184 N.J. 497, 513-14 (2005), and Natale, supra, 184 N.J. at 483. The constitutional problem recognized by the United States Supreme Court in Blakely and other cases, was that sentencing judges, in the exercise of their traditional role, were utilizing their own findings of fact to increase terms of imprisonment beyond that which jury verdicts would allow. Natale, supra, 184 N.J. at 482. Prior to Natale, in order to stay within the boundaries of Blakely, a judge could only increase the sentence above the presumptive term by utilizing aggravating factors that were either based upon recidivistic factors, Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed. 2d 435, 455 (2000), Abdullah, supra, 184 N.J. at 506 n.2, or were otherwise admitted by the defendant.

Here, we have a direct appeal. Defendant was sentenced on April 15, 2005. Because this case was on appeal when the Supreme Court decided Natale on August 2, 2005, defendant is entitled to pipeline retroactivity. Natale, supra, 184 N.J. at 494. Accordingly, we must remand for resentencing. In resentencing, the judge must keep in mind the principles announced in State v. Pierce, 188 N.J. 155, 168 (2005) and State v. Thomas, 188 N.J. 137, 149 (2006), regarding judicial factfinding of aggravating factors (3), (6) and (9).

The convictions are affirmed, however, the sentence on the second degree conviction is vacated and remanded to the Law Division, Monmouth County for re-sentencing. We do not retain jurisdiction.

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