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State v. Bray

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 24, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIE E. BRAY, JR., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Number 05-12-2718.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2008

Before Judges Fuentes and Chambers.

Defendant Willie Bray pled guilty pursuant to a negotiated plea agreement to one count of third-degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(3). He was sentenced to a term of five years, with two-and-one-half years of parole ineligibility. The court also imposed the mandatory fines and penalties.

Prior to pleading guilty, defendant moved before the trial court to suppress evidence gathered by the police that lead to his arrest. The court denied defendant's motion after conducting an evidentiary hearing. Defendant now appeals raising the following arguments.

POINT I

THE TRIAL COURT'S DECISION DENYING THE MOTION TO SUPPRESS MUST BE REVERSED BECAUSE THE OFFICER HAD NO REASONABLE ARTICULABLE SUSPICION UPON WHICH TO STOP CO-DEFENDANT, ANTHONY MENTONE. THE INVESTIGATORY STOP OF THE CO-DEFENDANT WAS CONVERTED INTO AN ILLEGAL SEIZURE WHEN, ABSENT PROBABLE CAUSE, THE OFFICER OPENED THE VAN DOOR, JUMPED INSIDE THE VEHICLE, PLACED HIMSELF UNLAWFULLY IN THE VIEWING AREA, AND MADE A PLAIN-VIEW OBSERVATION. FINALLY, THE OFFICER HAD NO REASONABLE SUSPICION OR PROBABLE CAUSE TOWARDS DEFENDANT, WILLIE BRAY, ABSENT THE ILLEGAL SEIZURE OF ITEMS FROM THE CO-DEFENDANT. THEREFORE, THE ARREST AND SEIZURE OF CONTRABAND FROM DEFENDANT WAS THE FRUIT OF THE POISONOUS TREE AND REQUIRED SUPPRESSION OF THE EVIDENCE.

A. The Officer Lacked Both a Reasonable Articulable Suspicion Upon Which To Approach the Co-Defendant As Well As Probable Cause To Arrest.

B. The Officer Lacked The Probable Cause Required To Open Co-Defendant's Car Door And Jump Inside The Vehicle. Therefore, He Was Not At A lawful Vantage Point When He Saw The Contraband in Plain-View. His Actions Constitute An Unlawful Seizure And The Evidence Should Have Been Suppressed. Moreover, The Trial Judge Erred By Misconstruing Facts And Relying On Facts Not In Evidence, Thereby Depriving Defendant Of His Rights To Due Process Of Law And A Fair Hearing.

C. The Illegal Seizure of the Contraband in the Co-defendant's Vehicle Is the Sole Nexus That Gives Rise to Probable Cause as to Defendant and Constitutes the Fruit of the Poisonous Tree.

POINT II

BECAUSE THE COURT IMPROPERLY ASSESSED AND WEIGHED AGGRAVATING AND MITIGATING FACTORS, DEFENDANT RECEIVED THE MAXIMM SENTENCE WHICH WAS EXCESSIVE.

We reject these arguments and affirm. We summarize the following facts from the testimony of Neptune Police Officer Jason Petillo, the only witness presented at the suppression hearing.

On October 7, 2005, Petillo was assigned to monitor the area around the Centerfolds Gentlemen's Club. The parking lot for this establishment is adjacent to the parking lot of the Crystal Inn, a motel known to the Neptune Police Department for its high incidence of illicit narcotics distribution. Although Petillo was in an unmarked car and wore civilian clothing, he carried his police badge exposed on his chest.

At approximately 7:30 p.m., Petillo observed a silver van drive into the parking lot of the Gentlemen's Club. The van proceeded slowly through the lot, and crossed into the motel's lot. This seemingly innocuous activity raised Petillo's suspicions, because he was aware that these two parking lots were frequently used as a gathering point for out-of-towners to meet with illicit drug dealers. Toward that end, narcotics dealers would rent rooms at the Crystal Inn to use as a temporary base of operations. Petillo himself had made numerous narcotics arrests at this location.

With this on his mind, Petillo performed a registration check of the silver van and discovered that it was registered to Anthony Mentone of Brick Township. The van drove to the far end of the inn's parking lot. Petillo followed, eventually parking his car approximately twenty feet away from the van. The driver of the van, subsequently identified as Mentone, remained in the vehicle as if waiting for someone.

Approximately five minutes later, Petillo saw an African American man, later identified as defendant, emerge from the rear entrance of the Crystal Inn, and walk over to the passenger side of the van. Petillo described defendant as wearing blue jeans with a white tank top; as to his features, Petillo noted that he had a light goatee.

When he reached the van, defendant opened the passenger side door, leaned his upper body inside, and extended his arms forward. After a few seconds, defendant stepped back from the van, closed the door, and walked back to the inn. At this point, based on his training and experience, Petillo concluded that he had observed a hand-to-hand illicit drug transaction.

As Mentone began to back out, Petillo got out of his car and walked toward the van; displaying his badge and using a loud voice, Petillo identified himself as a police officer, and ordered Mentone to stop the van. He did not comply. Instead, he put the van into drive, and began to pull away. As an immediate reaction, Petillo opened the van's passenger side door and jumped inside.

As the van accelerated to a high speed, Petillo again announced his presence and ordered Mentone to stop the vehicle. This time, Mentone complied. While seated in the passenger seat, Petillo saw three bags of suspected cocaine on the floor of the van, between the driver's and the passenger's seats. At this point, according to Petillo, he arrested Mentone and informed him of his constitutional rights under Miranda.*fn1

Thereafter, Mentone told him that a man named "Will" sold him the drugs.

Armed with this information, Petillo returned to the Crystal Inn and obtained authorization from the manager to look through the motel's guest registry. He thus learned that a guest under the name of "Willie Bray" had rented room 149. As Petillo approached room 149, he saw defendant, (the same person he had seen earlier involved in the illicit transaction with Mentone), walking away from the room. In response to Petillo's question, defendant confirmed that he was Willie Bray. When Petillo asked him what business he had with Mentone, defendant appeared "extremely nervous" and said that the man in the van was named "Tony."

Petillo then arrested defendant, concluding that he was the seller in the illicit drug sale to Mentone. A search of defendant's person incident to the arrest discovered two bags of cocaine, packaged in the same manner as those found in Mentone's van.

In light of these facts, we are satisfied that Petillo had probable cause to arrest defendant. In so doing, we defer to the factual findings made by the motion judge, because they are well-supported by the evidence presented. State v. Adams, 194 N.J. 186, 203 (2008) (citing State v. Locurto, 157 N.J. 463, 470-71 (1999)). We are satisfied that, when in view of the totality of the circumstances, Petillo had probable cause to arrest defendant. State v. Keyes, 184 N.J. 541, 554 (2005). Petillo observed defendant and Mentone engaged in an apparent drug transaction in an area known for illicit drug sales. Mentone was found in possession of the drugs, and implicated defendant when questioned by Petillo.

The balance of defendant's arguments attacking the trial court's analysis lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Even assuming that defendant has standing to raise the issue under State v. Johnson, 193 N.J. 528 (2008), we are satisfied Petillo had probable cause to enter Mentone's van in the manner described herein. Petillo's actions were proper and made necessary by Mentone's failure to adhere to the officer's command to stop the van.

The sentence imposed by the court was within the parameters of the plea agreement, State v. Pillot, 115 N.J. 558, 566 (1989), and well within the court's statutory authority. State v. Natale, 184 N.J. 458, 489 (2005). Affirmed.


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