February 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KELLY M. EVANS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. 02-04-00471-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2007
Before Judges Wefing, R. B. Coleman, and Lyons.
Tried to a jury, defendant was convicted of conspiracy, N.J.S.A. 2C:5-2; possession of cocaine, N.J.S.A. 2C:35-10(a)(1); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2); possession of cocaine with intent to distribute on or near school property, N.J.S.A. 2C:35-5(a), 35-7; possession of cocaine with intent to distribute on or near a public park, N.J.S.A. 2C:35-5(a), 35-7.1; and resisting arrest, N.J.S.A. 2C:29-2(a)(2). The trial court sentenced defendant to an aggregate term of ten years in prison, with a four-year period of parole ineligibility. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.
The Anti-Crime Unit of the New Brunswick Police Department conducted a surveillance operation of the premises located at 94 Comstock Street. They eventually obtained a search warrant for those premises, which they determined to execute on Sunday, January 20, 2002. Lieutenant Paul Schuster, who was directing the operation, saw defendant Evans enter the premises and leave after approximately twenty minutes. Lt. Schuster was familiar with defendant, and he radioed instructions to officers in nearby backup units that defendant be stopped. When defendant saw police vehicles approaching, he began to run. Officers pursued him on foot; during the chase, he was seen to discard a plastic bag. He was eventually apprehended and placed under arrest. The officers retrieved the bag they had seen defendant discard; it contained fifty-five smaller bags of what was later determined to be rock cocaine weighing less than one-half ounce.
The officers then executed the search warrant for 94 Comstock Street, which they had originally believed to be a single-family residence. When they entered the building, they learned that it contained two dwelling units. The first floor was occupied by Benjamin Barnes and his family, the second by Terrell Williams. The police searched only the second-floor unit. When they entered, they observed a large poster-size picture of defendant on the wall. Terrell Williams, who was tried with defendant, was found in the apartment. A search of that apartment turned up additional quantities of rock cocaine, with a total weight of more than one ounce, together with cash, an electronic scale, a police scanner, boxes of plastic sandwich bags and an identification card with defendant's picture. They also recovered a fully-loaded handgun from underneath a chair in the living room.
On appeal, defendant raises the following arguments:
THE COURT'S INSTRUCTION--THAT IN DECIDING THE POSSESSION ELEMENT IN COUNTS TWO, THREE, FOUR, AND FIVE, THE JURY COULD CONSIDER WHETHER DEFENDANT POSSESSED EITHER THE DRUGS FOUND IN THE HOUSE, OR THE DRUGS FOUND IN THE STREET--INVITED A NON-UNANIMOUS PATCHWORK VERDICT IN VIOLATION OF DEFENDANT'S STATE AND CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW. HENCE, HIS CONVICTIONS ON THOSE COUNTS MUST BE REVERSED AND REMANDED FOR A NEW TRIAL.
THE AFFIDAVIT SUBMITTED IN SUPPORT OF THE APPLICATION FOR WARRANTS TO SEARCH EVANS AND 94 COMSTOCK STREET WAS INSUFFICIENT TO SUSTAIN A FINDING OF PROBABLE CAUSE.
THE TRIAL COURT ERRONEOUSLY RULED THAT DEFENDANT WAS NOT ENTITLED TO A FRANKS EVIDENTIARY HEARING; HENCE, A REMAND FOR A FRANKS HEARING MUST BE ORDERED.
THE IMPOSITION OF AN EXTENDED-TERM SENTENCE IS NOT JUSTIFIED BY THE RECORD AND IS MANIFESTLY EXCESSIVE.
A. The Judge Misconstrued Defendant's Prior Record and Imposed an Extended-Term Sentence Based on a Clear Error in Judgment.
B. A Remand is Required by State v. Pierce.
Defendant made no objection to the court's charge with regard to possession. He now complains on appeal, however, that under the charge as given, some members of the jury could have found him guilty with respect to the cocaine that was found on the street, and other members of the jury could have found him guilty with regard to the cocaine that was discovered during the search of 34 Comstock Street. This, he contends, is a violation of his right to have the jury unanimously determine whether he was guilty or not guilty. Because defendant did not raise this issue with the trial court, he must establish that the court's charge constituted plain error, that is, error which is "clearly capable of producing an unjust result." R. 2:10-2.
Absent an explicit request for a specific unanimity instruction, "'a general instruction on the requirement of unanimity suffices to instruct the jury they must be unanimous on whatever specifications they find to be the predicate of the guilty verdict.'" State v. Parker, 124 N.J. 628, 638 (1991) (quoting United States v. Natelli, 527 F.2d 311, 325 (2d Cir. 1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed. 2d 175 (1976)), cert. denied, 503 U.S. 939, 112 S.Ct. 1483, 117 L.Ed. 2d 625 (1992). Here, the trial court did give an appropriate general instruction on unanimity.
The trial court did instruct the jury that if it found defendant guilty of possession of cocaine, it had to determine the weight of the cocaine. On the verdict sheet, the jury was given the option of finding that the cocaine weighed less than one-half ounce or more than one-half ounce. The jury specifically found that defendant was guilty of possessing cocaine weighing less than one-half ounce but not guilty of possessing cocaine weighing more than one-half ounce. It is thus clear from the verdict sheet that the jury found defendant guilty of possessing the cocaine that was found on the street but not guilty of possessing the cocaine that was recovered during the search of 94 Comstock Street. This is further buttressed by the fact that the jury found defendant not guilty of possessing the handgun that was recovered from the apartment. Nothing within the court's charge supports defendant's request for a new trial.
In defendant's second argument he contends that the affidavit that was submitted in support of the search warrant was insufficient to establish probable cause. We disagree.
Searches that are conducted pursuant to a warrant carry a presumption of validity. State v. Jones, 179 N.J. 377, 388 (2004). A defendant challenging the validity of a search conducted pursuant to a warrant bears the burden of proving "'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" Ibid. (quoting State v. Valencia, 93 N.J. 126, 133 (1983)).
When an application for a search warrant is submitted, the reviewing judge "'must be satisfied that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched.'" Ibid. (quoting State v. Sullivan, 169 N.J. 204, 210 (2001)). The measure for determining whether probable cause exists turns on the "totality of the circumstances." State v. O'Neal, 190 N.J. 601, 612 (2007). "[T]he court must 'make a practical, common sense determination whether, given all of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Ibid. (quoting State v. Moore, 181 N.J. 40, 45-46 (2004) (internal quotation marks omitted)).
Further, a reviewing court must "'accord substantial deference to the discretionary determination resulting in the issuance of [the warrant].'" State v. Jones, supra, 179 N.J. at 388 (quoting State v. Sullivan, supra, 169 N.J. at 211). When, after a search has been conducted pursuant to a warrant, a defendant contends that inadequate facts were submitted to justify issuance of the warrant and there is a question as to adequacy of those facts, "'the doubt should ordinarily be resolved by sustaining the search.'" Id. at 389 (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)).
In reviewing the application, moreover, the judge should consider the "specialized experience and work-a-day knowledge" of the officer making the application. State v. Kasabucki, 52 N.J. 110, 117 (1968); State v. Sainz, 210 N.J. Super. 17, 22 (App. Div. 1986). That principle is fully applicable here. Lt. Schuster, who submitted the affidavit in question, had twenty-eight years of experience as a police officer and attended advanced training in the area of narcotics investigation. He had participated in more than five thousand narcotics investigations and arrests.
An affidavit submitted in support of a search warrant is not deficient because it contains hearsay or relies upon information supplied by an informant, "so long as a substantial basis for crediting the hearsay is presented." State v. Zutic, 155 N.J. 103, 110 (1998) (quoting State v. Novembrino, 105 N.J. 95, 111 (1987)). Here, while Lt. Schuster's affidavit contained information supplied by two confidential informants, those informants had proven reliable in past investigations.
Further, Lt. Schuster's affidavit did not rely solely upon information supplied by confidential informants. He conducted a surveillance operation which verified details about the manner in which defendant conducted his drug trade. He also arranged for a controlled buy to be made by one of the confidential informants. We have reviewed this affidavit in detail; we reject so much of defendant's argument as rests upon his contention that this drug buy did not qualify as a controlled buy. We are satisfied that a fair reading of the affidavit supports the conclusion that Lt. Schuster personally observed the transaction while conducting the surveillance operation. The trial court correctly denied defendant's motion to suppress.
In conjunction with his pre-trial motion to suppress, defendant also sought an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed. 2d 667 (1978). In that case, the United States Supreme Court held:
[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. [Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676, 57 L.Ed. 2d at 672.]
Our Supreme Court has held to the same effect. State v. Howery, 80 N.J. 563, 568, cert. denied, 444 U.S. 994, 100 S.Ct. 527, 62 L.Ed. 2d 424 (1979).
Paragraph 6 of Lt. Schuster's affidavit stated that defendant was well-known to the police. It recited defendant's criminal history, specifically that defendant had been charged in June 1990 with certain weapons offenses, convicted, and had spent approximately five years in prison. It also stated that he had been arrested in December 1995 for additional weapons offenses and went back to prison for approximately five more years. The affidavit contained the following sentence:
"He [i.e., defendant] has been home for several months and was arrested in 6/01 for a disorderly person drug offense in the area of Remsen Ave. and Baldwin St."
In support of his motion for a Franks hearing, defendant submitted an affidavit which stated that he had been arrested by mistake in June 2001 and that Lt. Schuster himself had directed the arresting officer to release defendant, saying that the wrong person had been apprehended. He also stated that at the time of the surveillance operation, he was residing in Kintock House in Newark, a halfway house, and thus had not "been home for several months." He stated that as a resident of Kintock, he was required to sign in and out each time he left the facility. He also noted that he was working at B/L Beauty Supply in Somerset. He attached to his motion copies of sign-in sheets at Kintock House, showing his daily departures and returns for the period October 26, 2001, through January 9, 2002.
We see no error in the trial court's denial of defendant's request for a Franks hearing. As to the recitation of defendant's arrest in June 2001, we agree with the trial court that it was immaterial to the decision whether to grant the application for a search warrant. We have carefully reviewed the time sheets to which defendant refers and note that they almost uniformly show defendant returning to the halfway house at approximately 11:00 P.M. We cannot disregard the statement of one of the confidential informants contained within Lt. Schuster's affidavit to the effect that defendant and the Williams brothers chose to conduct their wholesale drug trade at all hours.
The last issue raised by defendant relates to his sentence. At sentencing, the trial court granted the State's motion to sentence defendant to an extended term as a persistent offender. N.J.S.A. 2C:44-3(a). Defendant argues that the trial court erred both in sentencing him as a persistent offender and in selecting the quantum of the sentence he should serve. Defendant conceded to the trial court that his conduct fit within the criteria contained within N.J.S.A. 2C:44-3(a). The trial court correctly noted that defendant's prior convictions were all related to the possession of weapons and also correctly noted that from a review of defendant's pre-sentence report it appeared that defendant had a pattern of re-offending shortly after he finished a period of incarceration. In such a context, we cannot consider the decision to sentence defendant as a persistent offender to be an abuse of the court's sentencing power.
The State agrees, however, that defendant, whose appeal was pending at the time State v. Pierce, 188 N.J. 155 (2006), was decided, is entitled to be re-sentenced in accordance with that case. At this re-sentencing, defendant may be sentenced "within the expanded range of sentences available from the bottom of the ordinary-term to the top of the extended-term range." Id. at 171. The trial court should determine the appropriate level without regard to any presumptive term. Id. at 170. The State concedes that defendant may not be re-sentenced to a term greater than that originally imposed.
Defendant's convictions are affirmed; the matter is remanded for re-sentencing.
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