February 27, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FREDERICK GORDON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-08-2875.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Lihotz and Simonelli.
Defendant, Frederick Gordon, was indicted for third degree possession of heroin, contrary to N.J.S.A. 2C:35-10a(1) (count one); third degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third degree possession of heroin with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-5 and 2C:35-7 (count three); and third degree resisting arrest, contrary to N.J.S.A. 2C:29-2 (count four). A jury convicted defendant on counts one, two and three. On count four, the jury convicted defendant of the lesser charge of resisting arrest, a disorderly persons offense. At sentencing, the trial judge merged counts one and two into count three, and sentenced defendant to an extended term of eight years with a four-year period of parole ineligibility. On count four, the trial judge sentenced defendant to time served. The judge also imposed the appropriate assessments, penalties and fees. On this appeal, defendant raises the following arguments:
THE JUDGE ERRED IN DENYING GORDON'S MOTION TO SUPPRESS EVIDENCE WHERE OFFICER GARCIA DID NOT HAVE REASONABLE SUSPICION TO STOP GORDON.
AN EXTENDED TERM SENTENCE OF EIGHT YEARS IN PRISON WITH A FOUR-YEAR PAROLE DISQUALIFIER WAS EXCESSIVE.
The following facts are derived from the record of the suppression hearing. On June 21, 2004, at 12:45 p.m., Officer Elias Garcia of the Newark Police Department's NEST Unit (the Department's narcotics unit), and his partner were patrolling in their marked patrol car in the area of St. James and Willoughby Streets, which is a known high narcotic area. The officers noticed defendant tucked in the alleyway of 52 St. James Street, and it seemed like he was hiding. Defendant was also looking into a brown bag, and appeared to be counting items in it. The officers became suspicious and decided to circle the block and return to the scene to further investigate and ask defendant why he was in the alleyway. When asked at the suppression hearing why the officers circled the block, Garcia responded,
Well, being that the area is what it is, it's a high narcotic area, we [were] trying to figure out why he [was] in the alleyway tucked in like hiding. We didn't know if he was going to break into a house - we [were] unaware of what he was going to do, what [were] his intentions.
When asked why he became suspicious, Garcia responded,
I mean, to [my] experience and knowledge, people do put CDS in brown bags, and they hide it in alleyways, and they count narcotics, away from the, you know, from the public.
After circling the block, the officers saw defendant, who had exited the alleyway and was nervously walking away from them on St. James Street at a fast pace. The officers, who were in full uniform, stopped and exited their patrol car. Defendant looked back at them and walked faster. The officers told defendant to stop, but he did not comply. Instead, he looked back at the officers, reached into his pocket, threw the brown bag to the ground, and fled. The officers eventually apprehended defendant, and after a struggle, placed him under arrest. They also recovered the bag, which contained 150 glassine envelopes of heroin.
Defendant filed a motion to suppress the narcotics evidence. Judge Fullilove denied the motion, finding:
I am satisfied that, based on the high narcotics area, based on the testimony of Officer Garcia, which is uncontroverted, there was a reasonable, articulable suspicion as to why [defendant] was in the alleyway and there was, in fact, a legitimate reason to stop [defendant] to find out what was going on.
So I'm satisfied that this does not, in fact -- that this case is, in fact, distinguishable from [State v. Dangerfield, 171 N.J. 446 (2002)], which holds that mere flight does not cause the reasonable suspicion for a stop.
I'm satisfied that the testimony of Officer Garcia gives him a reasonable suspicion before the flight and that the flight only added to that reasonable suspicion they had.
I'm satisfied that, based on the testimony, that there was a reasonable, articulable suspicion as set forth by Officer Garcia, that in fact they had a right to stop [defendant], that when the bag was discarded and discovered containing the contraband, controlled dangerous substance, that I'm satisfied this was not a seizure in violation of [defendant's] constitutional rights.
I'm satisfied that the motion, based on the uncontroverted testimony, that the motion to suppress should be denied. I will sign the order to that effect.
Our review of a trial judge's findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We give great deference to the trial judge's factual findings and will not "engage in an independent assessment of the evidence as if [we] were the court of first instance." Id. at 471. We also give deference to the trial judge's credibility determinations. Id. at 474; Johnson, supra, 42 N.J. at 161. In "reviewing a motion to suppress," we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (citations omitted). We will reverse only if we are convinced the trial judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting Johnson, supra, 42 N.J. at 162). "In those circumstances solely should [we] 'appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).
After carefully reviewing the record, in light of the arguments presented, we conclude there is sufficient credible evidence supporting Judge Fullilove's finding that Garcia had a reasonable, articulable suspicion to stop defendant. State v. Nishina, 175 N.J. 502, 510-11 (2003) (citing State v. Rodriguez, 172 N.J. 117, 126 (2002)). Defendant was observed in a high narcotics area acting in a manner consistent with narcotics activity. Defendant's actions, viewed collectively, gave Garcia reasonable suspicion that defendant was engaged in, or about to engage in, criminal activity. Thus, the stop was legal. We now address the challenge to defendant's sentence.
Defendant concedes he is subject to an extended term. However, he contends that, based on his age,*fn1 failing health, drug addiction, and recent conviction on narcotics distribution stemming from a 1999 arrest, his sentence should be reduced to seven years with a three-year period of parole ineligibility. We disagree.
In determining the sentence, Judge Fullilove found as follows:
As an adult, you have been arrested [on] 32 different occasions. This is, in fact, your fifth indictable conviction.
I do note for the record, however, Mr. Gordon, looking at your prior convictions, you have a 1993 conspiracy and distribution of a controlled dangerous substance within a thousand feet of a school. That is the sentencing that took place November 1993. March of 1994, it seems you pled guilty to distribution of a controlled dangerous substance within a thousand feet of a school property. In 1999, you pled guilty it appears to distribution of a controlled dangerous substance within school property, and you have this offense. So, your protestation you do not deal drugs -- by your prior convictions and pleas you present yourself as a dealer.
Mr. Gordon, I am required to weigh the aggravating and mitigating factors. I find as an aggravating factor, there's clearly a risk you [will] commit another offense. I find that factor two, and your own omission, sir, because you are in fact a drug abuser. I find as an aggravating factor that the extent of your prior criminal records, that's 32 prior arrests and five prior indictable convictions. Clearly, there's need to deter you and others from violating the law. I find no mitigating factors, sir, and as I have indicated to you, since there was a motion made for an extended term, I am required by statute as a second, you know, this is more than your second offense, to give you the extended term on the Prosecutor's application.
Because these findings are amply supported by credible evidence in the record, the sentence will not be disturbed. State v. Roth, 95 N.J. 334, 366 (1984); State v. Johnson, 118 N.J. 10, 20 (1990).