September 20, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD JEFFERSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, I-03-09-1223.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 8, 2007
Before Judges Kestin and Payne.
Defendant, Ronald Jefferson, appeals from his conviction by a jury on charges of third-degree possession of a controlled dangerous substance in violation of N.J.S.A. 2C:35-10a(1), from his extended-term sentence of seven years in custody with a three and one-half year period of parole ineligibility, and from a simultaneously-imposed, four-year concurrent sentence for violation of probation on a charge of third-degree possession with the intent to distribute a controlled dangerous substance as set forth in Burlington County Indictment Number 02-02-0228.
On appeal, defendant raises the following arguments through counsel:
THE TRIAL COURT SHOULD HAVE SUPPRESSED THE NINE PACKETS OF CRACK COCAINE THAT WERE SEIZED FROM THE VAN AS A RESULT OF AN ILLEGAL WARRANTLESS SEARCH.
THE TRIAL COURT SHOULD HAVE SUPPRESSED DEFENDANT'S STATEMENT BECAUSE HE DID NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVE HIS MIRANDA RIGHTS.
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE THERE WAS NO EVIDENCE THAT DEFENDANT POSSESSED CRACK COCAINE. (NOT RAISED BELOW.)
DEFENDANT'S SENTENCE TO AN EXTENDED TERM OF SEVEN YEARS INCARCERATION WITH THREE AND ONE-HALF YEARS PAROLE INELIGIBILITY MUST BE VACATED AND REMANDED FOR RESENTENCING.
In a pro se brief, dated February 1, 2007, defendant makes the further argument that his trial counsel was ineffective; that probable cause for his arrest and the search of the van was lacking; and that a four-year sentence for a violation of probation was improperly imposed. In a further pro se brief, filed on July 18, 2007, complains that both witnesses were present in the courtroom during his August 12, 2004 suppression hearing. He also provides further argument to support his claim of ineffective assistance of counsel.
We affirm defendant's conviction, and remand the matter for resentencing.
Prior to trial of the matter, defendant moved for suppression of evidence of the drugs he was alleged to have possessed. Immediately before jury selection, he also moved for suppression of his post-arrest statement to the police.
A hearing on defendant's motion to suppress the drug evidence was conducted in the matter on August 12, 2004, at which testimony was offered on behalf of the State by Patrolmen Michael Ekelburg and Robert T. Elbertson. Officer Ekelburg testified that, on June 6, 2003, he and another officer established a surveillance at the intersection of Green and St. Mary's Streets in Burlington City, as the result of multiple reports of open-air drug dealing in the area. At approximately 5:00 p.m., Ekelburg observed a person known to him as George Knight approach the intersection on foot, where he remained for a period of time. After approximately fifteen minutes, a commercial van approached the intersection and parked. Ekelburg observed that the passenger, later identified as defendant, alighted from the van, approached Knight, and engaged in a hand-to-hand transfer of money for objects that Knight extracted from the pocket of his pants. After quickly examining the objects, defendant cupped his hand into a fist and returned to the van, which pulled away. Ekelburg then contacted his supervisor by radio to advise him of his observations and of defendant's physical description.
The narrative was continued by Officer Elbertson, who had been assigned as a member of a two-officer arrest team in connection with the police's "sneak-and-peak" operation. Upon learning of Ekelburg's observations, Elbertson, driving a marked police vehicle, located the van, pulled behind it, and activated the police vehicle's lights and siren. After a pursuit of the van for approximately one and one-half blocks, the van stopped. Elbertson approached the passenger side of the van, while his partner approached the driver. Defendant was then ordered out of the vehicle, arrested for wandering, and placed in handcuffs.
Officer Elbertson testified that, while bringing defendant out of the van, he observed what he believed to be a crack pipe in plain view in the van's ashtray. After Elbertson saw the pipe, his partner removed the driver from the van. Elbertson then retrieved the pipe from the center console and verified, from evidence of residue, that it was, in fact, a crack pipe. Defendant was then charged with possession of drug paraphernalia, and both he and the van's driver were ordered to sit on the curb under the supervision of Elbertson's partner. A further search of the van revealed, lodged on a raised area behind the passenger seat, a Newport cigarette box with an open lid containing several clear baggies of what appeared to be crack cocaine. The items were retrieved by the police and retained as evidence.
Following his consideration of this evidence, the motion judge sustained the validity of the stop, finding that it was supported by a reasonable, articulable suspicion of illegal conduct. He also sustained the seizure of the pipe and drugs as having been situated in the plain view of the police officers.
At the subsequent hearing regarding defendant's challenge to the voluntariness of his confession, Officer Elbertson testified that, upon reaching the police station, defendant offered to make a statement. Elbertson thereupon administered Miranda*fn1 warnings to defendant and obtained defendant's signature on the Miranda warning card, to which the signatures of Elbertson and a witness were also affixed. When defendant commenced an oral unrecorded statement, Elbertson inquired whether he would consent to its recordation. Defendant agreed. According to Elbertson, upon determining that a recorded statement would be given, he took defendant to another part of police headquarters, where a voluntary statement form that included a second Miranda warning was completed and executed by the defendant. A subsequent taped statement was prefaced by further Miranda warnings. In that statement, played at the hearing and, later, to the jury, defendant admitted to purchasing ten bags of crack cocaine from Knight, one of which he discarded from the window of the van upon sighting the police, while placing the remainder in a Newport cigarette box that he then threw in the back of the van's cab. At the hearing, Officer Elbertson denied making any threats or promises to defendant to induce his cooperation with the police, despite the efforts of defense counsel on cross-examination to suggest that Elbertson had offered to release the van and drop charges against its driver, defendant's uncle, if defendant cooperated.
Defendant, who also testified, contradicted Elbertson's version of events, stating that he had been arrested by Ekelburg, not Elbertson, and that he had been induced to confess by Ekelburg's statement, at the scene of the stop, that the police simply wished to get Knight, the drug seller, off the corner, and if defendant worked with them, they could "all go home today." Defendant testified that he was told that he would probably "just get a fine or something." When he initially refused to cooperate, he was threatened by Ekelburg, who stated "we're going to take your truck and we could probably keep it for like six months in paperwork." A subsequent threat to search the truck was fulfilled, resulting in the discovery of the nine bags of cocaine. According to defendant, after he and his uncle were transported to police headquarters, at the uncle's request, defendant approached the police to offer his assistance. The offer was accepted, and defendant was required to identify Knight who, by then, had been arrested, as well as to give a statement. Once the statement was complete, defendant was to be released on his own recognizance, but was held overnight on an outstanding warrant, posting bail on that warrant on the following day. Defendant's uncle was charged with wandering, and the truck was released on the night of defendant's and his uncle's arrest.
At the conclusion of the hearing, the trial judge ruled defendant's statement admissible. In doing so, the judge found no evidence in the record to corroborate defendant's version of what had taken place, and he found the testimony of Elbertson that no pre-interview had occurred to be credible. Defendant's motion was therefore denied.
Testimony at trial, again given by Officers Ekelburg and Elbertson, conformed to that of the suppression hearings. Defendant did not testify. Following deliberations, the jury returned a verdict against defendant, finding him of guilty of third-degree drug possession. This appeal followed.
On appeal, defendant challenges the court's determination that evidence, consisting of the nine bags of cocaine, was admissible in the trial against him, arguing that the police lacked a reasonable suspicion to stop the van and arguing, further, that the warrantless search of the vehicle violated defendant's Fourth Amendment rights.
Despite defendant's arguments to the contrary, our review of the record of the suppression hearing satisfies us that, not only reasonable suspicion, but probable cause to stop the van and to arrest defendant was presented by evidence of the observed hand-to-hand transfer of money for small objects, occurring in an area known for open-air drug transactions, and by evidence of the transmittal of that information, as well as a description of defendant and the van in which he was a passenger, to Officer Elbertson. State v. Crawley, 187 N.J. 440, 457 (permitting police to rely on information transmitted by one officer to another), cert. denied, ___ U.S. ___, 127 S.Ct. 740, 166 L.Ed. 2d 563 (2006); State v. Moore, 181 N.J. 40, 43-45 (2004) (finding probable cause for arrest under factually analogous circumstances).
We find immaterial the fact that defendant was first charged with the disorderly persons offense of wandering, in violation of N.J.S.A. 2C:33-2.1, and was charged with the third-degree crime of drug possession, in violation of N.J.S.A. 2C:35-10a(1), only after discovery of the nine bags of crack cocaine. The evidence of a drug sale was sufficient to warrant defendant's arrest on the more serious charge at the outset. That the police manifested initial leniency in charging does not invalidate the arrest or the later charge.
We are also satisfied that Elbertson's subsequent search of the commercial van, leading to the discovery of the nine bags of cocaine, met constitutional standards.*fn2 The decision on defendant's suppression motion occurred prior to the issuance of our opinion in State v. Eckel on December 29, 2004, invalidating a motor vehicle search as incident to arrest when the occupants of the vehicle had been secured elsewhere, and long before the Supreme Court's affirmance of that opinion. See State v. Eckel, 374 N.J. Super. 91 (App. Div. 2004), aff'd, 185 N.J. 523 (2006). See also State v. Dunlap, 185 N.J. 543 (2006) (determining, in the circumstances presented, that a warrantless vehicle search could not be justified under the automobile exception to the warrant requirement). However, an assumption of the retroactivity of Eckel and Dunlap and their applicability to the present case does not change our view, since the record, demonstrating the stop of a commercial vehicle that was likely accessible to others in a high-crime area by a mere two officers, discloses both probable cause and exigent circumstances sufficient to render the warrantless search constitutional. See Dunlap, supra, 185 N.J. at 551 (observing that a "roadside stop effectuated by only one or two officers" would present circumstances different from those requiring the suppression of evidence in the Dunlap case).
We find insufficient merit in defendant's remaining arguments with respect to his conviction to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Defendant notes that both police officers were present during the course of his August 12, 2004 suppression hearing. However, our review of the record discloses no evidence that a sequestration order was requested or that the request was granted. Moreover, the officers participated in different segments of the events leading to defendant's arrest, and thus defendant's claim of testimonial corroboration cannot be factually supported. Defendant challenges the admissibility of his confession. However, in that challenge, defendant assumes the truth of his testimony at the suppression hearing - testimony that the trial judge rejected as not credible, while crediting the contrary testimony of arresting officer Elbertson. We have been offered no grounds to reverse the trial judge's reasoned analysis of the evidence and credibility determinations in this regard, and our independent review discloses none. The judge's determination is therefore affirmed. State v. Locurto, 157 N.J. 463, 470-71 (1999). Defendant contends that his conviction was not supported by sufficient credible evidence in the record to support a finding of guilt beyond a reasonable doubt. That contention, raised for the first time on appeal, is barred by defendant's failure to move before the trial judge for a new trial, R. 2:10-1, and, in light of the evidence that we have recited, including defendant's detailed confession, is clearly meritless. Defendant's argument that his trial counsel was ineffective, which requires examination of evidence that is not contained within the trial record, cannot be considered on direct appeal, but instead must be reserved for consideration in a motion for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).
The issuance of the Supreme Court's decision in State v. Pierce, 188 N.J. 155 (2006), after an extended term sentence had been imposed upon defendant, requires a remand for resentencing in accordance with Pierce's requirements. Id. at 169. Defendant's further sentencing arguments as they relate to his conviction for possession of a controlled dangerous substance can be considered by the trial court at that time. Defendant's arguments on appeal with respect to his sentence for violation of probation were not properly presented to the trial judge, and we decline to consider them. State v. Walker, 385 N.J. Super. 388, 410 (App. Div.), certif. denied, 187 N.J. 83 (2006).
Defendant's conviction is affirmed; his case is remanded for resentencing.