March 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
QUASAN A. SHABAZZ, DEFENDANT-APPELLANT.
On appeal form the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-09-1123-I, 04-09-1152-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 29, 2008
Before Judges Yannotti and LeWinn.
Union County Indictment No. 04-09-1123 charged defendant, Quasan Shabazz, with third-degree distribution of heroin, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count one); and third-degree distribution of heroin within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (count two).
Defendant brought a motion to suppress on May 6, 2005, which the judge denied following a hearing. Tried to a jury on October 12, 13, and 14, 2005, defendant was convicted on both counts. At sentencing, on January 24, 2006, defendant pled guilty to a fourth-degree assault charge, contrary to N.J.S.A. 2C:12-1(b)(5)(a), under Union County Indictment No. 04-09-1152. The court granted the State's motion to sentence defendant to an extended term on Indictment No. 04-09-1123, and sentenced defendant, on count two, to a term of six years imprisonment with a three-year period of parole ineligibility; count one merged into count two. Pursuant to his plea bargain on the fourth-degree assault charge, defendant was sentenced to a concurrent nine-month term. This appeal followed.
On appeal, defendant raises the following issues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR SUPPRESSION OF EVIDENCE
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT
THE TRIAL COURT ERRED BY NOT ENTERING A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE WHICH WAS PLAIN ERROR (NOT RAISED BELOW)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED
THE TRIAL COURT ERRED BY IMPOSING AN EXTENDED TERM SENTENCE WITHOUT THE GROUND THEREFOR BEING ESTABLISHED AT A HEARING (NOT RAISED BELOW)
Having thoroughly reviewed the record, we find no error warranting reversal. Therefore, we affirm defendant's convictions and sentence.
We briefly summarize the relevant facts, drawn from the testimony presented at trial.
On June 5, 2004, Plainfield Police Detectives Kevin O'Brien and Joseph Mulligan were conducting an undercover surveillance in an area within 1000 feet of a school which was known to be a high drug trafficking area. At approximately 9:30 a.m., they approached the intersection of Arlington Avenue and Seventh Street in an unmarked vehicle. They observed an individual, later identified as defendant, sitting outside a laundromat, who made eye contact with Mulligan and then made a hand gesture as though signaling Mulligan to pull over. The detectives pulled into the parking lot of the laundromat.
Defendant approached the passenger side of the vehicle and Mulligan asked him for four bags of heroin. Defendant told Mulligan he had to call someone to deliver the drugs and asked Mulligan for fifty cents to make the phone call. Mulligan gave him the money. Defendant walked across the street and used a pay phone. Defendant then returned to the vehicle and informed Mulligan that someone would be arriving on a bicycle shortly, and the price would be forty dollars for the heroin and ten dollars to defendant for arranging the sale.
Approximately twenty minutes later, an individual, later identified as Stacey Jones, arrived in the parking lot riding a bicycle. Defendant walked over to Jones and had a brief conversation with him. Jones took several white items from his waistband and handed them to defendant, who walked to the undercover vehicle and handed Mulligan four bags of heroin in exchange for fifty dollars. Defendant walked over to Jones and appeared to hand him money, at which point Jones left the parking lot on his bicycle, and defendant walked into the laundromat.
The police officers testified that, before embarking on their undercover assignment that day, they had identified and photographed the bills used in the transaction. After Jones left, the detectives radioed descriptions of defendant and Jones to back-up units in the area who arrested both individuals shortly thereafter. In searching Jones upon his arrest, the police recovered twenty-five dollars of the previously marked bills. Upon searching defendant incident to his arrest, the police recovered a five-dollar bill that had also been previously marked.
Stacey Jones also testified at trial, and corroborated the police detectives' testimony.
Defendant argues that the judge erred in denying his motion to suppress. He argues that O'Brien's testimony was not credible, and there was a lack of probable cause to search him. We disagree.
At the suppression hearing, O'Brien testified that he recognized defendant from prior investigations of drug activity. The judge expressed some skepticism that defendant, a drug dealer who was known to these officers, would engage in a face-to-face drug transaction with them. In response, O'Brien explained that they were in undercover disguise, including wigs and glasses, and defendant did not recognize them. O'Brien conceded that this information was not in their police report. O'Brien also testified that the transaction in question had been primarily between defendant and Mulligan. Despite his early expression of skepticism, the trial judge found O'Brien credible.
We defer, as we must, to the trial court's factual findings, including credibility findings, given the trial judge's opportunity to see and hear the witnesses and assess credibility. State v. Locurto, 157 N.J. 462, 471 (1999). Where, as here, substantial evidence of record supports those findings, they will not be disturbed on appeal. Ibid.
Moreover, the detectives clearly had probable cause to have defendant arrested, as they had just personally engaged in a drug transaction with him. "An arrest for an offense committed in an officer's presence is presumptively based on probable cause." State v. Henry, 133 N.J. 104, 110 (1993). The arresting officers, therefore, had probable cause to search defendant incident to that lawful arrest. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed. 2d 685, 694 (1969); State v. Moore, 181 N.J. 40, 45-46 (1994)
Defendant next argues that the trial judge erred by denying his motion to dismiss the indictment based on four claims of prosecutorial error or misconduct before the grand jury: (1) misleading the grand jury to believe the State was not seeking to indict him as an accomplice; (2) misrepresenting the amount of heroin sold as 2.28 grams when the correct amount was .228 grams; (3) misrepresenting that the heroin sold to Mulligan was labeled as "C.V.S." heroin, when it was actually labeled as "Blue Bird" heroin; and (4) failing to present a confiscated money form relating to the five-dollar bill recovered from defendant.
The trial judge properly rejected these errors as grounds for dismissal of the indictment. First, the court found that an accomplice liability charge was not required because the facts established probable cause for the distribution charges in the indictment. Second, the mistakes regarding the weight and "brand" of the heroin appeared to be unintentional errors and any discrepancies could be addressed through cross-examination at trial. Moreover, these mistakes were harmless because they were irrelevant to the degree of the crime charged. Finally, the court found that the lack of a confiscated money form related to the witnesses' credibility that could be addressed at trial.
We turn to defendant's contention that the trial judge erred by failing to enter a judgment of acquittal at the end of the State's case. Since defendant did not seek such relief at trial, we consider this argument under the plain error standard. Thus we will not reverse on this basis unless the error was "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
A motion for judgment of acquittal shall not be granted unless the court concludes, after giving the State the benefit of every fair inference to be drawn from its evidence, that no reasonable jury could convict defendant. R. 3:18-1; State v. Perez, 177 N.J.. 540, 549 (2003). Here, there was sufficient evidence to enable a reasonable jury to convict defendant based on the testimony of the police detectives and Stacey Jones.
We next consider defendant's contentions that the judge erred by imposing an extended term sentence pursuant to N.J.S.A. 2C:43-6(f) and that his sentence is excessive. In light of his prior convictions for drug-related offenses, defendant was subject to a mandatory extended-term sentence under N.J.S.A. 2C:43-6(f). The prosecutor made a motion for imposition of an extended term. Defense counsel conceded that defendant is extended-term eligible under the statute. See State v. Thomas, 188 N.J. 137, 149 (2006) ("N.J.S.A. 2C:43-6(f) requires a sentencing court to impose an enhanced-range sentence when the prosecutor applies for such relief.").
Defendant was sentenced on third-degree offenses, for which the extended term range is between five and ten years. N.J.S.A. 2C:43-7(a)(4), (c). The judge sentenced defendant to a six-year term with a three-year parole disqualifier. This sentence was well within the extended-term range to which defendant was subject.
The trial judge found aggravating factors #3, #6, and #9 applied, N.J.S.A. 2C:44-1(a)(3), (6), (9), citing defendant's extensive criminal record and the fact that his criminal history is "closely related to his narcotics use." The court found no mitigating factors applied.
Defendant argues that the court should have considered mitigating factor #2 (he did not contemplate his conduct would cause or threaten serious harm); #3 (he acted under a strong provocation); and #8 (his conduct was the result of circumstances unlikely to recur. N.J.S.A. 2C:44-1(b)(2), (3), (8). However, the record does not support defendant's position on these mitigating factors. The nature of the charges on which he was convicted and his long criminal history of ongoing drug-related offenses negate application of these mitigating factors to defendant.
The trial court adequately reviewed the record. We are convinced that the sentences imposed are not manifestly excessive or unduly punitive and do not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210. 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
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