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State v. Clyburn

December 6, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERRANCE CLYBURN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-12-1143 and 05-05-0551-A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 29, 2007

Before Judges S. L. Reisner and Gilroy.

On December 22, 2003, a Passaic County Grand Jury charged defendant under Indictment No. 03-12-1143 with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) and N.J.S.A. 2C:2-6 (Count One); third- degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(3), and N.J.S.A. 2C:2-6 (Count Two); third-degree distribution of cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a, and N.J.S.A. 2C:2-6 (Count Three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(1) (Count Four).

Tried to a jury, defendant was convicted on all counts. On June 17, 2005, defendant was sentenced on the conviction on Count Three to a mandatory extended term, pursuant to N.J.S.A. 2C:43-6f, of ten years of imprisonment with a five-year period of parole ineligibility. On the conviction on Count Four, defendant was sentenced to eighteen months of imprisonment with a nine-month period of parole ineligibility, to run consecutive to the sentence imposed on Count Three. Counts One and Two were merged with Count Three.

On June 17, 2005, defendant also pled guilty to an unrelated charge of third-degree possession of CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7. On this conviction, defendant was sentenced to five years of imprisonment with a three-year period of parole ineligibility, to run concurrent with the sentence imposed on Count Three under Indictment 03-12-1143. All appropriate fines and penalties were also imposed. Defendant appeals from the convictions under Indictment No. 03-12-1143 only. We affirm the judgment of conviction but remand for re-sentencing in accordance with State v. Natale (Natale II), 184 N.J. 458 (2005) and State v. Thomas, 188 N.J. 137 (2006). Because defendant does not contend that the verdict was against the weight of the evidence, we need only state the core facts to place the appeal in context.

On August 31, 2003, Paterson Police Department narcotics officers, Detective Sergeant Thomas Trommelen, Detective Vaughn Patterson, Detective William Palomino, and Patrolman Ronald Altmann, conducted a drug investigation in the area of a multi-family dwelling located at 151 Temple Street, in Paterson. The building is located within 1000 feet of a school.

The police officers divided themselves into two teams. Altmann and Trommelen acted as surveillance officers, while Palomino and Patterson formed the arrest team. The surveillance team's duty was to not only identify individuals to be arrested, but also to relay that information to the arrest team. Based on the relayed descriptions, the arrest team would apprehend the suspects.

Upon arriving at the scene, the officers positioned themselves at different locations. Trommelen and Altmann remained in their parked, undercover vehicles, with an unobstructed view of the building. The surveillance officers observed defendant, who was standing at the top of the steps leading to the front door of the building, talking to a second male, who was standing at the foot of the stairs. The second male was wearing blue jeans, a white T-shirt, and a Lakers hat.

At about 5:00 p.m., an unidentified third male approached the second male on a bicycle. After speaking briefly, the second male held up two fingers. The second male walked to defendant, who then removed a clear, plastic baggie from his pants, and handed the second male several small items. The second male handed the items to the bicyclist, who in turn, after presenting paper money to the second male, left the scene. Based on these events, Altmann and Trommelen believed that they had just observed a "hand-to-hand drug transaction." After the bicyclist left, Trommelen attempted to follow him, but lost sight of him. Trommelen then returned to the scene to set up a second surveillance point.

About twenty minutes after the transaction with the bicyclist, a white Jeep Cherokee operated by a female arrived in the area. The second male jogged across the street, conversed with the female driver, and returned to defendant, holding up one finger. Again, defendant removed a clear, plastic baggie from his pants and gave the second male an item. The second male returned to the Jeep, and exchanged the item for money with the driver. The second male then returned back to defendant, handing defendant money, which defendant again placed into his pocket.

At the conclusion of the transaction, the Jeep left the area. Trommelen, after radioing a description of the Jeep and its license plate, then pursued the Jeep. The Jeep pulled into a gas station, whereupon Patterson and Palomino pulled up behind it, while Trommelen parked in front of it. The officers approached the Jeep, asking the female driver to exit. After Palomino saw the operator throw a plastic bag onto ground, the officers arrested the driver. One plastic baggie of suspected crack cocaine was recovered at the scene. The seized substance later tested positive for cocaine.

Shortly after the arrest of the female driver, Detectives Patterson and Palomino returned to the building at 151 Temple Street, having received in the interim a description of defendant and the second male involved in the drug transactions. When the detectives arrived, defendant ran into the building. The detectives yelled, "Stop, Police," but to no avail. Defendant ran up the stairs, locked himself in an apartment, and turned on a radio or television loudly. The detectives forced the apartment door open, found defendant walking out of a bathroom, and heard water flowing into the toilet tank. A clear, empty, wet plastic ...


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