February 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN D. GOODE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, 02-10-1207.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 14, 2008
Before Judges Collester and C.L. Miniman.
Defendant Kevin D. Goode appeals from a judgment of conviction on multiple drug charges, raises a constitutional challenge to the Drug Offender Restraining Order Act (DORA), N.J.S.A. 2C:35-5.7, having pled guilty to two contempt charges of violating the restraining order, and appeals the extended- term sentence imposed on the conviction of possession of cocaine with intent to distribute. We affirm the convictions but remand for resentencing.
On June 7, 2000, at 3:25 a.m., Plainfield police officers were patrolling a public-housing apartment complex, Elmwood Gardens, which was notorious for drug activity. Officer Edward Hafeken and his partner, Officer Michael Black, drove past the front entrance of 540 West Second Street several times, each time seeing a black male duck to the side of the window in the door. Hafeken became suspicious and parked his patrol car in the back of the apartment complex. The officers walked to the front door and observed three people on the other side of the window passing something to each other. Believing this to be a drug transaction, the officers started to open the door with a key provided by the Housing Authority. Defendant looked up and Hafeken recognized him through the window, since he had known him for years. Defendant and another black male ran up the stairs. They shouted "come on" to a black female who had accompanied them and she followed.
The officers ran after the suspects, telling them to stop, but did not identify themselves as police. The suspects ran across the second floor landing. The officers saw them enter an apartment and Hafeken unsuccessfully tried to prevent defendant from closing the door. Black then kicked in the door and both officers entered. They observed defendant, the other male and the female running toward the back of the apartment. Another female stood at the front of the apartment shouting that nobody had entered. Hafeken followed defendant down the hall and into the bedroom on the right side. The two other suspects went into the bedroom on the left.
Inside the bedroom Hafeken saw defendant standing by an open casement window with his right hand clenched in a fist. Defendant punched his fist through the window screen, hit the glass and dropped a plastic bag to the courtyard below. Hafeken tackled defendant before he was able to escape from the room and handcuffed him. He then radioed for backup. Once downstairs in the courtyard, Hafeken found the plastic bag containing what was later determined to be fifty baggies of crack cocaine. The police searched defendant and found keys to both the apartment complex and the apartment where he was arrested.
After defendant's arrest, the bail judge on June 8, 2000, issued a DORA restraining order preventing defendant from returning to the 500 block of West Second Street or any area within a 200-foot radius around the Elmwood Garden apartment complex. Defendant signed the order, acknowledging that he had received it, and was released on bail.
On October 5, 2000, the grand jury issued an indictment charging defendant with third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1) (count one), third-degree possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count two), second-degree possession of cocaine within 500 feet of a public housing facility in violation of N.J.S.A. 2C:35-7.1 (count three) and fourth-degree obstructing the administration of law in violation of N.J.S.A. 2C:29-1 (count four). On December 11, 2000, defendant pled not guilty to the indictment. Later, defendant moved to suppress the physical evidence of cocaine possession. The motion judge held an evidentiary hearing on May 15, 2001, and denied defendant's motion the same day.
On September 13, 2001, defendant was apprehended when he violated the restraining order by returning to Elmwood Gardens. On December 7, 2001, another indictment issued charging defendant with fourth-degree criminal contempt for violating the DORA restraining order in violation of N.J.S.A. 2C:29-9(a). Defendant pled not guilty on February 4, 2002.
On June 13, 2002, defendant again returned to the site of his initial arrest and was again apprehended. On October 3, 2002, the grand jury issued another criminal indictment against defendant charging him again with fourth-degree criminal contempt for violating the DORA restraining order in violation of N.J.S.A. 2C:29-9(a).
In the meantime defendant absented himself from the jurisdiction and was tried in absentia from June 18 to 20, 2002, on the charges stemming from the cocaine possession. The jury returned a guilty verdict on all counts.
Defendant was finally apprehended in North Carolina in June 2004. He negotiated an agreement with the State and pled guilty to both contempt charges on January 19, 2005. Defendant appeared before the sentencing judge on January 28, 2005, for sentencing on the drug and contempt convictions. The State applied for and was granted a mandatory extended term on count two, possession with intent to distribute, pursuant to N.J.S.A. 2C:43-6(f). The judge merged counts one and two, the third-degree possession charges, with count three, the second-degree conviction for possession with intent to distribute within 500 feet of a public housing project. The judge sentenced defendant to nine years in state prison on count three. Because the parole disqualifier on the extended term survived the merger, the judge imposed a four-year period of parole ineligibility. The judge also issued a fifteen-month concurrent sentence on count four, obstruction of the administration of law in attempting to discard the cocaine. With respect to the pleas to the two charges of violating the DORA restraining order, the judge sentenced defendant to two concurrent one-year prison terms. He also extended the DORA restraining order for five years from the date of sentencing. Defendant filed a notice of appeal as extended by leave of court on April 18, 2005.
Defendant raises the following issues on appeal:
POINT I - THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE OFFICERS HAD NO PROBABLE CAUSE TO PURSUE THE DEFENDANT.
POINT II - BECAUSE N.J.S.A. 2C:35-5.7, A PROVISION OF THE DRUG OFFENDER ACT OF 1999, CONTAINS NO PROVISION FOR DEFENDANT TO RECEIVE NOTICE AND A HEARING PRIOR TO THE ISSUANCE OF A RESTRAINING ORDER, IT VIOLATES DUE PROCESS AND INFRINGES UPON DEFENDANT'S RIGHTS TO INTRASTATE TRAVEL AND FREEDOM OF ASSOCIATION. U.S. CONST. AMEND. XIV. (Not Raised Below)
POINT III - BECAUSE THERE WAS AN INDICATION THAT ONE OF THE JURORS WAS SLEEPING DURING THE COURT'S RECITATION OF THE JURY CHARGE, THE MATTER SHOULD BE REMANDED FOR A NEW TRIAL. (Not Raised Below)
POINT IV - THE DEFENDANT'S MANDATORY EXTENDED TERM, PURSUANT TO N.J.S.A. 2C:43-6(f), OF A NINE-YEAR BASE TERM WITH A FOUR-YEAR PERIOD OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND MUST BE REMANDED UNDER STATE v. THOMAS. (Not Raised Below)
A. THE DEFENDANT'S NINE-YEAR EXTENDED TERM IS MANIFESTLY EXCESSIVE. (Not Raised Below)
B. THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE v. THOMAS. (Not Raised Below)
With respect to the denial of defendant's motion to suppress evidence, our review is limited. "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162.
As to all of the other issues, R. 2:10-2 provides:
Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plan error not brought to the attention of the trial . . . court.
Where a constitutional claim is asserted, we will reverse a conviction unless the error was harmless beyond a reasonable doubt. State v. Castagna, 187 N.J. 293, 312 (2006); State v. Dennis, 185 N.J. 300, 302 (2005), cert. denied, 547 U.S. 1045, 126 S.Ct. 1629, 164 L.Ed. 2d 342 (2006); State v. McCloskey, 90 N.J. 18 (1982). Otherwise, plain error is error clearly capable of producing an unjust result. State v. Brown, 190 N.J. 144, 160 (2007).
We begin with the only issue raised below, probable cause to arrest and seize evidence. Defendant argued the seized cocaine was the fruit of an unlawful search because the officers lacked probable cause and had no warrant when they pursued defendant in the apartment building. The motion judge found that there had been sufficient probable cause and denied defendant's motion.
Defendant contends that the officers had no probable cause to pursue him into the apartment. First, he argues that the officer's limited observations through the window into the lobby of the apartment building do not rise to the level of the "particularized suspicion" that is necessary for an investigatory stop, as permitted under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968); see also State v. Davis, 104 N.J. 490, 504 (1986). Second, he argues that the officers did not recognize the people through the window and did not see their hands or what they were doing. Third, he contends that once the officers entered the building, the suspects' flight was not sufficient to create probable cause; consequently, the officers' entry into the apartment was illegal. Finally, defendant argues there is no exception to the warrant requirement that could justify the search.
The State, on the other hand, contends that the apartment complex was notorious for drug activity and that the Housing Authority provided the police with keys to the premises so they could check for illegal activity. The State argues that the motion judge properly concluded that the officers drew from their knowledge and experience to determine from their observations through the window that a drug transaction was taking place inside. The State also argues that defendant's flight elevated the officer's reasonable suspicion to probable cause. Although the State acknowledges that flight alone may not be the sole basis for probable cause, it asserts that flight may be taken into consideration along with the officers' observations through the window. Additionally, the State argues that once the suspects refused the officers' orders to stop, the police had probable cause to pursue and arrest defendant for obstruction of the administration of law. Finally, the State contends that exigent circumstances justified the officers' entry into the private residence because the police were justified in believing that defendant would destroy evidence.
The motion judge concluded that the officers had a reasonable suspicion that criminal activity was taking place and, thus, could make an investigatory stop. Although the officers could not identify the parties involved or what was being passed around, this level of detail is not necessary to raise a reasonable suspicion. A reasonable suspicion stems from "a particularized and objective basis for suspecting the particular person . . . of criminal activity." Davis, supra, 104 N.J. at 501 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed. 2d 621, 628-29 (1981)). "Such observations are those that, in view of [an] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonably warrant the limited intrusion upon the individual's freedom." Id. at 504. The judge here found the officers credible when they testified that the activities they saw were consistent with the type of criminal activities they had observed in the same area before. He concluded an officer need not witness actual criminal activity but instead may rely on reasonable inferences based upon knowledge and experience.
Defendant challenges the judge's decision that flight from the investigatory stop was sufficient to create probable cause, relying on the Supreme Court's conclusion in State v. Tucker, 136 N.J. 158 (1994), that a suspect's flight cannot create probable cause. In that case, the Court concluded that a defendant was illegally seized when the police pursued him based on nothing more than the fact that he took flight. Id. at 168-69. The Court held that a defendant's flight could not justify a seizure in the absence of any additional evidence of criminal activity. Id. at 169.
The Tucker case is quite different from the facts at issue in this appeal. Here, the officers already had a reasonable suspicion to conduct an investigatory stop before the suspects took flight. In Tucker the officers' basis for pursuit did not even meet the lesser standard of reasonable suspicion. Here, the decision to pursue was based on more than just flight alone. Also, in State v. Branch, we held that flight may elevate reasonable suspicion to probable cause when the suspect refuses an officer's demand to stop. 301 N.J. Super. 307, 319 (App. Div. 1997), rev'd on other grounds, 155 N.J. 317 (1988). Similarly, in State v. Ruiz we distinguished Tucker from circumstances when, before a defendant chose to flee, officers saw the defendant in a high crime area at night engaging in actions raising a suspicion of criminal activity. 286 N.J. Super. 155, 162-63 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996). Also, in State v. Royal we affirmed the trial court's conclusion that police officers had probable cause to arrest when they knocked on the door of a house based on a tip, only to see the defendant run upstairs and several suspects flee through the back door. 115 N.J. Super. 439, 441-42 (App. Div.), certif. denied, 59 N.J. 294 (1971). We are satisfied that the officers here had a particularized suspicion that a crime was being committed by three individuals in the lobby of an apartment building Elmwood Gardens in the very early morning hours and that the particularized suspicion was elevated to probable cause when the officers saw the suspects take flight when Haneken put the key into the building door and then refuse to stop when the officers ordered them to do so.
Finally, defendant argues that exigent circumstances did not justify the intrusion into a private residence. The police may conduct a warrantless entry into a home when in hot pursuit of an armed felon or if destruction of evidence is likely. State v. Josey, 290 N.J. Super. 17, 24 (App. Div.), certif. denied, 146 N.J. 497 (1996). This exception to the warrant requirement applies here. In Josey we upheld the trial court's refusal to suppress evidence when the police entered into a home without a warrant after witnessing the defendant conduct a drug transaction. Id. at 23. We noted that drug evidence is particularly susceptible to destruction. Id. at 30. As a consequence, we find no merit to defendant's challenge to the officers' entry into the apartment and the seizure of the cocaine defendant hurled through the window.
Defendant next argues that that the DORA, N.J.S.A. 2C:35-5.7, is unconstitutional because it violates his rights to due process, travel and free association. First, defendant alleges that the law fails to give criminal defendants an adequate opportunity to prove that they are entitled to an exception in the law for bona fide residents of the location of arrest. Second, defendant alleges that the law deprives him of his rights to travel and free association without providing adequate notice or opportunity to modify the order based on hardship. Defendant asserts that he lived within the area covered by the restraining order and he claims that he was denied an opportunity to have the judge take this into consideration.
The State responds by asserting that defendant has no right to challenge the law because defendant signed the June 8, 2000, DORA order and neglected to seek a stay or modification or take an appeal. Further, the State claims that, because defendant pled guilty without entering a conditional plea under R. 3:9- 3(f), he waived his right to challenge the law. Nevertheless, the State contends that defendant was afforded due process because the law permits defendants to avoid a restraining order by demonstrating by clear and convincing evidence that they are entitled to one of the law's exceptions. The State points out that defendant failed to take advantage of this opportunity.
The threshold question is whether or not individuals who plead guilty to violating a law are foreclosed from claiming on appeal that the law is unconstitutional. "A guilty plea waives all issues, including constitutional claims, that were or could have been raised in prior proceedings." State v. Owens, 381 N.J. Super. 503, 508-09 (App. Div. 2002) (emphasis added). There are exceptions to this rule, such as illegal searches or seizures, but none apply to the present facts. State v. DeLane, 207 N.J. Super. 45, 48 (App. Div. 1986); see Pressler, Current N.J. Court Rules, comment 2 on R. 3:9-2 (2007). We conclude that defendant waived the right to make these constitutional claims in the absence of evidence that his guilty plea was not voluntary, which does not exist here.
Even if he could present these constitutional claims, his claim that the law fails to provide persons with adequate notice is totally undermined by defendant's own signed acknowledgement that he received the restraining order when it was issued at his bail hearing. Finally, defendant's claim that the law fails to allow persons to overcome undue hardships created by restraining orders has no merit. N.J.S.A. 2C:35-5.7(k) specifically permits a criminal defendant to claim hardship by seeking a stay or modification of the order in the Superior Court. Defendant did not seek such relief in the trial court and fails to demonstrate how proving his place of residence violated his right to due process. Requiring defendant to prove his place of residence by clear and convincing evidence is not an onerous burden. We find no plain error in respect to the DORA.
Defendant next contends that he was denied a fair trial because a juror slept through at least part of the jury instructions. This claim was not raised at his trial. Here, too, our review is limited to a search of the record for plain error. R. 2:10-2.
The judge interrupted his jury charge to ask a juror, "I am not losing you here, am I? You are getting very comfortable." The juror responded that the room was warm and then said "I will stay awake for the rest of it." The judge responded, "I am not inferring that you were sleeping. You were not. If I felt that you were sleeping, I would have said that. I just said that you are getting comfortable." Defendant contends that this exchange between the judge and juror proves that the juror was sleeping for an unknown duration, denying defendant the right to due process and a fair trial.
The State responds that defendant's lawyer did not ask the judge to voir dire the juror to ascertain if he was asleep, apparently accepting the judge's observation that the juror was not asleep. The State claims that, in the absence of any effort to bring the alleged error to the trial court's attention, defendant has failed to demonstrate how it was clearly capable of producing an unjust result. R. 2:10-2.
The juror's promise to "stay awake for the rest of it" was ambiguous and could have been an admission that he had slept or merely a promise not to fall asleep in the overly warm courtroom. The judge's response, however, eliminates the ambiguity. The judge apparently thought that the juror looked sleepy and took action to ensure the juror's attention. This is quite different from what occurred in State v. Burks, 208 N.J. Super. 595 (App. Div. 1986), where a judge reacted with indifference when made aware that two jurors were asleep. We cannot find plain error in the record before us on this issue.
Last, defendant raises two issues relating to his sentence on possession of cocaine with intent to distribute. First he contends that the judge did not sufficiently explain the reasons for imposing a nine-year term and a four-year period of parole ineligibility. Second, he contends that he is entitled to a remand under State v. Thomas, 188 N.J. 137 (2006), which was decided seventeen months after sentence was imposed in this case. The State concedes that defendant is entitled to a remand for resentencing and, thus, we need not discuss this issue.
As to the first issue, applying N.J.S.A. 2C:44-1(a), the sentencing judge found aggravating factors three, that defendant was likely to re-offend; six, that he had a substantial criminal record; and nine, that he needed to be deterred from committing similar offenses. The judge found no mitigating factors. Defendant claims that the judge failed to justify a specific reason for concluding that defendant needed to be deterred from committing future offenses. In addition, defendant alleges that the judge should not have taken his criminal record into consideration since he already received an extended term sentence.
The State responds that because defendant had been convicted of dealing drugs, the public interest in controlling the drug trade was sufficient to justify the judge's decision to deter defendant from committing additional crimes. As to defendant's criminal record, the State contends that his record was not double counted because the judge chose to issue a mandatory extended term, rather than a discretionary extended term.
We do not agree with the view of the State that factor nine addresses a broad public interest in controlling the drug trade. Rather, the need to deter under N.J.S.A. 2C:44-1(a)(9) has two applications: deterrence of repeated conduct by the defendant and deterrence of similar crimes by others. State v. Gardner, 113 N.J. 510, 520 (1989). The Supreme Court has observed that the need to deter a defendant may be viewed along with the defendant's criminal record as part of the general goal of preventing recidivism. State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). Although the judge did make reference to the detrimental effect of drug abuse on society, he also found a high likelihood of recidivism based on defendant's prior convictions, which is an adequate justification for finding aggravating factor nine.
In State v. Dunbar, the Supreme Court considered whether or not the decision to impose an extended-term sentence foreclosed additional consideration of a defendant's criminal record as an aggravating factor. 108 N.J. 80, 91-92 (1987). It found that certain aspects of a defendant's criminal record remain relevant:
The defendant's prior record of conviction has been taken into account in deciding whether to impose an extended term and presumably would not have the same qualitative weight in grading the range of the extended sentence. But other aspects of the defendant's record, which are not among the minimal conditions for determining persistent offender status, such as a juvenile record, parole or probation records, and overall response to prior attempts at rehabilitation, will be relevant factors in adjusting the base extended term. [Ibid.]
Defendant suggests that the judge double counted his criminal record by imposing an extended sentence as a persistent offender and then finding that his criminal record was an aggravating factor. This claim is not supported by the record. As the Dunbar Court explained, aspects of a defendant's criminal record not already taken into consideration in imposing an extended term may be considered as aggravating factors in deciding the duration of the extended-term incarceration. Here, the extended term on count two had no affect on the nine-year term imposed on count three. The extended term only survived merger for purposes of parole ineligibility on count three, the second-degree offense. State v. Gregory, 336 N.J. Super. 601; 606-07 (App. Div. 2001); State v. Parker, 335 N.J. Super. 415, 426 (App. Div. 2000). Thus, the judge could consider defendant's prior record of convictions in establishing a term of imprisonment on count three.
Affirmed as to convictions, remanded for resentencing.
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