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State v. Rogers

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 10, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JIDON ROGERS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 06-03-0498.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 5, 2007

Before Judges Cuff and Lintner.

Defendant, Jidon Rogers, was charged under Hudson County Indictment No. 06-03-0498 with third-degree possession of cocaine, PCP, and heroin, N.J.S.A. 2C:35-10a(1) (Counts One, Four, and Seven); third-degree possession of cocaine, PCP, and heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3), (7) (Counts Two, Five, and Eight) and third-degree possession with intent to distribute cocaine, PCP, and heroin within 1000 feet of school property, N.J.S.A. 2C:35-7 (Counts Three, Six, and Nine). On May 19, 2006, defendant and co-defendant, Todd Robertson, appeared on their motions to suppress. The motion judge denied defendant's motion after hearing testimony from the arresting Officers, Gilbert Vega and James Banco of the Jersey City Police Department. On May 25, 2006, defendant entered a plea of guilty to Count Nine and waived his right to have the State move for mandatory extended term, N.J.S.A. 2C:43-6f. In return, the State agreed to recommend a sentence of seven years with three years of parole ineligibility. On September 8, 2006, defendant was sentenced to a term of seven years with three years of parole ineligibility, together with the appropriate fines and penalties.

Defendant's appeal is limited to the judge's order denying the suppression of evidence and the sentence imposed. Defendant contends:

Point I

THE DECISION OF THE COURT BELOW DENYING THE MOTION TO SUPPRESS WAS LEGALLY AND FACTUALLY INCORRECT AND SHOULD BE REVERSED.

Point II

THE TRIAL COURT MISINTERPRETED THE LAW AND BY VIRTUE OF THAT, IMPOSED AN EXCESSIVE SENTENCE.

The State concedes that the judge mistakenly believed that he was required to impose the sentence recommended by the State in the plea agreement. We affirm the order denying defendant's suppression motion but remand for re-sentencing in accordance with State v. Thomas, 188 N.J. 137 (2006).

On November 29, 2005, Officer Vega was working the midnight shift in plainclothes and in an unmarked vehicle with his partner, Wojciech Drewa. The officers were patrolling a "target area," which Vega described as a location where they had made drug arrests and received complaints from citizens. Between 1:00 and 1:20 a.m., while in the area of 77 Crescent Avenue, Vega observed a green four-door Pontiac Grand Prix illegally parked in such a way that it was halfway into the street and partially blocking traffic. The Pontiac was idling and contained three occupants. Vega and Drewa continued to patrol the area for approximately fifteen to twenty minutes to see if the Pontiac would be moved. At one point, while passing the Pontiac, Vega observed from his front passenger's seat the front passenger in the Pontiac "fumble with an object below him on [the] floorboard." Vega made his observation when he was "approximately a foot and a half to two feet away [from] . . . the target vehicle."

Vega decided to execute a motor vehicle stop and issue a violation. Because there were three individuals in the Pontiac, Vega decided to have Drewa park thirty to forty feet away and wait for back up. When Officers Banco and Traynor arrived in the area, the officers coordinated their approach via radio. To prevent the Pontiac from being moved, Vega's vehicle was stopped just to the front right fender of the Pontiac while Banco's vehicle pulled up to the rear of the Pontiac.

The four officers approached the Pontiac on foot. While shining his flashlight into the Pontiac, Vega observed defendant holding a bag containing what appeared to be vials of cocaine. Defendant at first seemed oblivious to the officer's approach, however, he attempted to discard the drugs by throwing them on the floor when he realized Vega's presence. The officers demanded that the occupants exit the car. Defendant was placed under arrest by Vega. A search of defendant produced a brick of heroin in his front left pocket. Vega recovered the vials of cocaine and a large amount of cash from the floor of the front passenger's side of the Pontiac. Banco, who removed Robertson from the driver's seat, found, with the aid of a flashlight, a vial of PCP on the floor near the driver's seat.

On appeal, defendant asserts that the warrantless search was improper. He contends that he and his friend "were just sitting in the car"; Vega's testimony that the Pontiac was double parked blocking traffic was "negat[ed]" by his testimony that they drove around it; and the calling of back-up established the stop was pretextual because if Vega "intended to issue a ticket, there would be no need for back-up."

Our courts have consistently held that the police may perform an investigative stop of an automobile when they have an articulable and reasonable suspicion that the individual has committed a traffic offense. State v. Carty, 170 N.J. 632, 639-40, modified, 174 N.J. 351 (2002); State v. Cargill, 312 N.J. Super. 13, 17 (App. Div.), certif. denied, 156 N.J. 408 (1998); State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997); State v. Casimono, 250 N.J. Super. 173, 178 (App. Div. 1991), certif. denied, 127 N.J. 558, cert. denied, 504 U.S. 924, 112 S.Ct. 1978, 118 L.Ed. 2d 577 (1992); State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990). The stop that occurred when the officers blocked the Pontiac was proper. Firstly, the vehicle was illegally parked. Beyond that, the Pontiac with three occupants remained in its position blocking a portion of the street for fifteen to twenty minutes, with its engine running, in the wee hours of the morning in a location known as a high drug-crime area. Those circumstances alone provided reasonable suspicion to conduct an investigatory stop. See State v. Nishina, 175 N.J. 502, 512-14 (2003); State v. Butler, 278 N.J. Super. 93, 102-04 (App. Div. 1994); State v. George, 257 N.J. Super. 493, 496-97 (App. Div. 1992); State v. Otero, 245 N.J. Super. 83, 86-92 (App. Div. 1990).

The officers properly approached the vehicle. Vega's observations of drugs supported a reasonable and articulable suspicion that defendant and the other occupants were engaged in criminal activity sufficient to order them to exit the vehicle. State v. Smith, 134 N.J. 599, 618 (1994). "[T]he use of a flashlight does not transform an otherwise reasonable observation into an unreasonable search within the meaning of the Fourth Amendment." State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999) (citing United States v. Dunn, 480 U.S. 294, 304, 107 S.Ct. 1134, 1141, 94 L.Ed. 2d 326, 337 (1987). "[A] police officer lawfully in the viewing area" is not expected to "close his eyes to suspicious evidence in plain view." State v. Bruzzese, 94 N.J. 210, 237 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984). The facts presented at the suppression hearing were sufficient to meet the requirements of the plain view exception. See Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed. 2d 564, 582 (1971). Defendant was lawfully placed under arrest. The officers had probable cause to search the vehicle incident to a lawful arrest. See State v. Goodwin, 173 N.J. 583, 598 (2002). Simply put, the stop, the search, and seizure of contraband here pass constitutional muster.

The State and defendant agree that the judge mistakenly believed that N.J.S.A. 2C:35-12 required him to sentence defendant to the term recommended by the State as reflected in the plea bargain. "[S]section 12 applies only where the prison sentence or period of parole ineligibility recommended by the prosecution, either before or after trial, is less than the sentence mandated by the act." State v. Thomas, 253 N.J. Super. 368, 372 (App. Div. 1992).

Defendant also contends that the sentence imposed was excessive. Although the State argues that the seven-year sentence was not excessive, it concedes that a remand for re-sentencing is necessary. We do not reach the issue of excessiveness on this appeal because defendant's sentence has to be re-determined "within the extended-term range based on aggravating and mitigating factors found to be present." Thomas, supra, 188 N.J. at 154. Our remand is therefore without prejudice to defendant's right to file an appeal on the excessive sentence calendar, R. 2:9-11, after re-sentencing.

The judgment of conviction is affirmed. The matter is remanded for re-sentencing in accordance with this opinion.

20070910

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