July 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HERMAN T. KUC, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-02-0209.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2008
Before Judges Cuff and Lihotz.
Union County Indictment 05-02-0209 charged defendant Herman T. Kuc with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), (count one); third-degree resisting arrest, N.J.S.A. 2C:29-2(a), (count two); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a), (counts three and four); and fourth-degree obstruction of justice, N.J.S.A. 2C:29-1, (count five). Defendant moved to suppress the heroin evidence seized incident to arrest. The motion judge denied the application. Thereafter, defendant entered a guilty plea to the first three charges, and the State dismissed the remaining two. Defendant was sentenced to incarceration for an aggregate term of ten years with a two and one-half year period of parole ineligibility.
On appeal, defendant presents the following arguments for consideration:
BECAUSE THE ARREST OF DEFENDANT WAS A ROUSE TO CIRCUMVENT HIS FOURTH AMENDMENT RIGHTS, THE HEROIN SEIZED MUST BE SUPPRESSED.
DEFENDANT SHOULD HAVE BEEN SENTENCED TO A DRUG PROGRAM.
Filing a pro se supplemental letter brief, defendant reiterates the challenge to his sentence and additionally asserts:
DEFENDANT[']S COUNSEL WAS INEFFECTIVE THROUGHOUT ENTIRE PROCEEDINGS WHICH WOULD [HAVE] HAD DIFFERENT OUTCOME HAD LAWYER ACTED EFFECTIVELY IN CASE.
The facts are not in dispute. Detective James Crowell, a narcotics officer for the Rahway Police Department, received information from an anonymous source stating defendant would be selling heroin at the Burger King. There is only one Burger King in Rahway, located at the corner of Milton Avenue and Route 1. In the past, Crowell received information implicating defendant in illicit drug transactions. After running a computer check on defendant's warrant status, Crowell discovered two outstanding active arrest warrants issued by the City of Elizabeth. Crowell did not print out the warrants prior to arresting defendant.
Crowell advised fellow officers they were going to look for defendant at the Burger King because he was allegedly involved in drug activity. Crowell also explained he found outstanding warrants and ordered the police to arrest defendant. Defendant was located at the Burger King, arrested, and searched incident to arrest. During the search, the police uncovered "eight or nine bags of heroin" in defendant's pocket. Defendant filed a motion to suppress the seized narcotics, Rule 3:5-7, arguing no active, valid warrant was in place at the time of his arrest.
During a hearing on defendant's motion, which included Crowells' testimony, the State introduced a printout from a warrant check, however, Crowell admitted that was not the screen he viewed before arresting defendant. Crowell stated after defendant's arrest the warrants were printed and sent to the county jail with defendant's paperwork.
The motion judge determined Crowell had located two arrest warrants for defendant and even if one warrant had been recalled, the computer information led Crowell to believe active warrants existed for defendant's arrest. She determined Crowell acted "in good faith, he acted reasonably" in proceeding under the belief the warrants were valid and she concluded no basis to suppress was presented.
Defendant later appeared before a different judge and entered into a plea agreement with the State. Defendant pled guilty to the first three counts of the indictment in exchange for the State's agreement not to seek an extended term and to dismiss the remaining two counts. Defendant's plea was open and there was no recommendation for sentencing. Defendant provided a factual basis for his plea. He testified the heroin belonged to him and he had knowingly placed it into his pocket; he admitted he knew the police were arresting him and he attempted to impede their efforts; and he conceded he may have caused bodily injury to the officers in the midst of flailing his arms and legs.
The sentencing judge imposed a five-year period of incarceration on count one and a consecutive five-year period on count two. Additionally, he imposed a five-year sentence on count three to run concurrent to the sentence imposed on count one, with a two and one-half year period of parole ineligibility to run consecutive to the sentence on count one and concurrent to the sentence on count two.
Defendant argues the assertion by police that he was arrested based on outstanding warrants was pretext. Or, if there was a warrant, the underlying offense may have been a minor matter, obviating justification for a full search, and there was no search warrant to seize the heroin in an alleged drug deal, as disclosed by the police informant. Therefore, defendant was not arrested pursuant to a valid warrant making the ensuing search illegal. Defendant's arguments suggest the arrest was a sham used as an excuse for a search for drugs.
Contrary to defendant's suggestion, the record provides no basis to conclude the warrant's existence was fabricated. The motion judge determined the police located an outstanding arrest warrant issued pursuant to the procedures outlined in Rule 3:3-1. Although the police also had information giving rise to a suspicion that defendant was engaged in drug activity, they did not need to act on that information to effectuate his arrest.
"'Once a warrant is issued, or probable cause comes into existence, it becomes an officer's duty to arrest the suspect[.]'" State v. Jones, 143 N.J. 4, 14 (1995) (quoting Smith v. Gonzales, 670 F.2d 522, 527 (5th Cir. 1982), cert. denied, 459 U.S. 1005, 103 S.Ct. 361, 74 L.Ed. 2d 397 (1982)). "In fact, had the officers failed to attempt to effectuate the warrant, they would have been derelict in their duties." Ibid.
Nor should the police have assumed the warrant was for a minor offense, as defendant suggests.
In view of the significance that attaches to the issuance of a warrant and the fact that "every arrest, regardless of the nature of the offense [may] present a risk of danger to an officer," State v. Bruzzese, [94 N.J. 210, 233 (1983)], to require police officers to distinguish between arrest warrants issued for minor and serious offenses would be unreasonable. [Id. at 17.]
Finally, the failure of arresting officers to have the warrant in their possession, or to have reviewed a copy of the warrant prior to defendant's arrest are insufficient grounds to invalidate the arrest. Id. at 14; see United States v. Smith, 468 F.2d 381, 382 (3d Cir. 1972). Therefore, we concur with the conclusion of the motion judge that Crowell and the other police officers had a right to arrest defendant under a validly issued arrest warrant, regardless of the defendant's possible participation in drug activity.
We turn to defendant's Fourth Amendment challenge attacking the search and seizure. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. To be valid, a warrantless search must fall within "one of the few well-delineated exceptions to the warrant requirement." State v. Citarella, 154 N.J. 272, 278 (1998) (citing State v. Demeter, 124 N.J. 374, 379-80 (1991)). Here, the search of defendant's person was incident to his valid arrest. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed. 2d 685, 694(1969); State v. Carroll, 386 N.J. Super. 143, 152 (App. Div. 2006); State v. Irelan, 375 N.J. Super. 100, 107-08 (App. Div. 2005).
Once the police determined to make a custodial arrest, as they did here, their authority to conduct an essentially unlimited search of the arrestee's person follows as a matter of course. State v. Pierce, 136 N.J. 184, 213-14 (1994); see United States v. Robinson, 414 U.S. 218, 235-36, 94 S.Ct. 467, 477, 38 L.Ed. 2d 427, 440-41 (1973) (Fourth Amendment permitted a full search of an individual incident to a custodial arrest, even for a traffic-type offense); see also LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 5.2 (4th ed. 2004) (unlimited search of the arrestee's person permissible following police custodial arrest). No doubt exists that the search of defendant's person was permissible.
Defendant's supplemental brief asserts trial counsel's performance was ineffective in light of the Strickland/Fritz*fn1 test. To succeed, defendant must identify acts or omissions in counsel's performance, which were so deficient "that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693, and must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
Because we conclude that the police had probable cause to arrest and search defendant incident to arrest, we discern no evidence is presented of counsel's unreasonable professional judgment resulting in a prejudicial effect on the outcome. Fritz, supra, 105 N.J. at 58-61.
Finally, defendant seeks modification of his sentence arguing he should have been considered for admission into Drug Court. Defendant did not seek consideration as a Drug Court candidate. He now argues that because "Drug Court [is] an alternate way to sentence drug addicts so as to treat their drug addiction and return them to the community drug-free and with a fighting chance of staying crime-free" he, as a drug-involved offender, who has never attended a drug rehabilitation program and committed crimes to support his drug habit, should be given this opportunity. We reject this argument.
"Drug Courts are specialized courts within the Superior Court that target drug-involved 'offenders who are most likely to benefit from treatment and do not pose a risk to public safety.'" State v. Meyer, 192 N.J. 421, 428 (2007) (quoting Administrative Office of the Courts, Manual for Operation of Adult Drug Courts In New Jersey (July 2002 at 3). Defendant has numerous prior felony and lesser convictions, spanning two decades, which include second-degree robbery, N.J.S.A. 2C:15-1(b), an offense making him ineligible for Drug Court admission. N.J.S.A. 2C:35-14(a)(7).