July 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DERRICK D. LAWRENCE, A/K/A LAWRENCE DERECK, RAJAN LAWRENCE, DERICK LAWRENCE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-07-00965.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2008
Before Judges R. B. Coleman and Lyons.
Following the denial of his motion to suppress evidence, defendant Derrick D. Lawrence entered an open plea of guilty to count seven of Middlesex County Indictment No. 05-07-00965, resisting arrest, N.J.S.A. 2C:29-2(a)(3). The remaining eight counts of the indictment were dismissed. In light of the guilty plea, the court imposed a five-year prison term. This appeal ensued.
The facts and procedural history relevant to this appeal are as follows. On May 13, 2005, shortly after midnight, Edison Police Officer Jeff Tierney noticed that a car traveling northbound on Route One made an illegal U-turn onto Route One south. Tierney pursued and stopped the car driven by defendant about a mile and a half down the road. Tierney then alighted from his vehicle, noticed that defendant was accompanied by a female passenger, and approached the passenger side of defendant's car. The officer asked for defendant's driving credentials. Although defendant produced a valid registration and insurance card, he did not present his driver's license. Defendant stated that "[he] left [his] license in one of those machines and [he] was just trying to find the Turnpike." A background check of defendant revealed no outstanding warrants. Officer Scott Sofield then arrived at the scene. Because Tierney found defendant's response regarding his license to be odd, he ordered defendant out of the car.
When defendant exited, Officer Sofield observed a glass pipe in a paper towel on the floor board. After departing the vehicle, defendant placed his hands into the pockets of his sweatshirt, causing concern to Officer Tierney. The officer told defendant to remove his hands from his pocket. Defendant held his hands in plain sight for a few moments, but then placed them in his pockets again. The officer had to issue directives to defendant several times to keep his hands out of his pockets. During this interaction, Tierney observed that defendant's eyes seemed glazed, leading the officer to believe that defendant was under the influence of some illicit substance. The officer did not, however, smell any alcohol.
When defendant made yet another effort to place his hands in his pockets, Tierney and Sofield reached for defendant's hands. Defendant did not cooperate. Instead, he pushed the officers' arms and pushed Officer Sofield in the chest. Defendant's reactions caused Tierney to believe that defendant might be armed. The officers grabbed defendant, and all three men tumbled to the ground. At that point, the officers were able to handcuff defendant and place him under arrest.
After defendant was secured, Officer Sofield went back to defendant's vehicle to retrieve the pipe, which he believed contained residue of a controlled dangerous substance (CDS). Because defendant was apparently injured in the scuffle, he was transported via ambulance to the emergency room at Robert Wood Johnson Hospital. While the hospital staff was transferring defendant to a bed, a plastic baggie fell out of his sweatshirt. The baggie contained seven glass vials with purple tops. The police also recovered six wax folds, suspected by them to be heroin, and once defendant's shoes were removed, they found three more glass vials containing a substance they believed to be cocaine.
As a result of the altercation with the officers and the items found in possession of defendant, defendant was indicted. On July 7, 2005, a Middlesex County grand jury indicted defendant on nine counts, alleging third degree possession of a controlled dangerous substance (crack cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); third degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10(a)(1) (count two); third degree possession with intent to distribute (cocaine), N.J.S.A. 2C:35-5(b)(3) (count three); third degree possession with intent to distribute (heroin), N.J.S.A. 2C:35-5(b)(3) (count four); fourth degree aggravated assault of Officer Jeff Tierney, N.J.S.A. 2C:12-1(b)(5) (count five); fourth degree aggravated assault of Officer Scott Sofield, N.J.S.A. 2C:12-1(b)(5) (count six); third degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count seven); fourth degree obstructing the administration of law or other governmental function, N.J.S.A. 2C:29-1 (count eight); and third degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count nine).
Defendant then filed a motion to suppress the evidence of drugs found in his possession. The hearing on the motion was heard on December 12, 2005 and February 6, 2006. At the end of the hearing, the court denied the defense motion to suppress, reasoning as follows:
So, we have a proper stop. That there is a right for the officers to ask someone to get out of the vehicle, where they don't have their driver's license. The activities of Mr. Lawrence, once he got out of the car, in terms of putting his hands in his pockets, and not responding to the police officers' directions [to] take his hands out of his pockets, give them the right to do a pat-down, to see if there are any weapons. And then, at this point, Mr. Lawrence resisted that.
And one thing led to the other, where there was this falling on the ground, a resisting. And the officers had a right, at this point, to arrest for resisting. He got to the hospital. He had been under arrest. There was a right to search incident to a valid arrest, in terms of what was in the hoody, what was in the socks. And, so, the officers' actions were reasonable, under the totality of the circumstances.
The court filed an order to this effect on February 27, 2006.
Immediately after the court's denial of the motion to suppress, defendant entered a guilty plea to third degree resisting arrest. In exchange, the State agreed to dismiss the remaining counts of the indictment at sentencing. When the sentencing occurred on July 14, 2006, the court stated:
There is no presumption for or against incarceration. There is aggravating factor, three, the risk that Mr. Lawrence will commit another offense. Six, he has an extensive record as the prosecutor indicated. Nine, need to deter. I'm not finding any mitigating factors. The aggravating factors substantially outweigh any possible mitigating.
I did go out on a limb for Mr. Lawrence and indicated I would give him no more than five years. The prosecutor wanted eight. I believe Mr. Lawrence was in Monmouth County and I kept adjourning the sentence here waiting for what Monmouth County would do I think from April 28th and hoping that Mr. Lawrence would get a probationary sentence and get the drug treatment and initially that's what happened but he had this problem and is no longer in the program and I feel very badly for him but I know it's an illness but it really puts people at risk.
Mr. Lawrence, when you were driving your car back on May 13, 2005 and you did a U turn you were putting innocent people at risk and as you indicated yourself today you start drinking then you go on a binge and you're doing things you don't even know you're doing so that's the problem.
I sentence you on Count 7 [resisting arrest] to five years to the custody of the Commissioner of the Department of Corrections. DNA sample. Twenty-seven days credit for time served. $50.00 VCCB, $75.00 Safe Neighborhood, $30.00 LEOP, counts 1 through 6, 8 and 9 are dismissed.
On September 7, 2006, defendant filed his Notice of Appeal from the final judgment of conviction, and in the appeal, he raises the following arguments:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE CONTINUED DETENTION OF THE DEFENDANT LASTED LONGER THAN NECESSARY TO ASCERTAIN IF BOTH THE DEFENDANT HAD A VALID DRIVER'S LICENSE AND IF HIS VEHICLE WAS STOLEN (RAISED BELOW).
POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S OBJECTION TO HEARSAY EVIDENCE AND BY DOING SO DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION (PARTIALLY RAISED BELOW).
POINT III: THE TRIAL COURT DEPARTED FROM A POSITION OF NEUTRALITY WHEN IT SUA SPONTE EXAMINED THE STATE'S ONLY WITNESS AND ASSISTED THE STATE BY LAYING THE FOUNDATION THAT WAS LATER USED TO SUPPORT ITS FINDINGS OF FACT AND DENIAL OF THE DEFENDANT'S MOTION TO SUPPRESS (NOT RAISED BELOW).
POINT IV: THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO THE MAXIMUM SENTENCE FOR A THIRD DEGREE FELONY TAKING INTO ACCOUNT AGGRAVATING FACTORS AND FAILING TO TAKE INTO ACCOUNT MITIGATING FACTORS (NOT RAISED BELOW).
After a careful review of the applicable law and pertinent facts, we affirm.
Defendant asserts that the trial court erred by denying the motion to suppress because defendant's detention lasted longer than necessary to determine if defendant had a valid driver's license. We disagree. State v. Smith is instructive. 134 N.J. 599 (1994). In Smith, New Jersey State Troopers pulled a vehicle over for speeding. When the defendant's car came to a complete stop, the officers in Smith noticed that passengers in the car were moving about. Id. at 604-05. The officers did not even ask for the defendant's license, but instead asked everyone in the car to exit and to allow the officers to frisk them. Id. at 605. While patting down one of the passengers, the officer found several yellow-white blocks that were later identified as crack cocaine. The driver and that passenger were then placed under arrest and charged with possession of a CDS. Id. at 607.
The trial court denied the defendants' motion to suppress; we reversed, but the Supreme Court reinstated the trial court's ruling. The Court acknowledged that "[o]rdering a person out of a car constitutes a seizure under the Fourth Amendment because the person's liberty has been restricted." Id. at 609; see State v. Davis, 104 N.J. 490, 498 (1986). "Whether such a seizure is constitutional depends on the reasonableness of the order." Smith, supra, 134 N.J. at 609. And, "[w]hether a police officer's protective search for weapons is justified is a separate question from whether the stop was permissible in the first place." State v. Valentine, 134 N.J. 536, 542 (1994). The controlling standard is "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 543 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed. 2d 889, 909 (1968)).
Relying on the U.S. Supreme Court's ruling in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed. 2d 331 (1977), the Smith Court "concluded that the State's interest in the safety of its officers far outweighed the driver's interest in not being made routinely to step out of a car after it has been stopped for a traffic violation." Smith, supra, 134 N.J. at 610 (citing Mimms, supra, 434 U.S. at 111, 98 S.Ct. at 333, 54 L.Ed. 2d at 337). In this case, we likewise find that the officers' legitimate concern for their safety outweighed the inconvenience defendant suffered from having to step out of his automobile. Indeed, defendant's own actions prolonged the stop. He refused to obey officer directions to keep his hands in sight and out of his pockets. He then physically resisted the officers' attempts to remove his hands from his pockets. Cf. State v. Williams, 192 N.J. 1, 11 (2007) (indicating a defendant is obliged to submit to an investigatory stop regardless of its constitutionality). Had defendant possessed the proper driving credentials and obeyed simple instructions, this stop would have been significantly shorter.
Defendant next contends that the trial court committed error by allowing hearsay evidence to be heard at the suppression hearing. Officer Tierney stated that his fellow officer observed a glass pipe on the floor of defendant's automobile. While this may constitute impermissible hearsay, the testimony came during a suppression hearing not a trial. There was no jury present, and the judge was the sole fact finder; therefore, the possibility of confusion and prejudice was minimal. Furthermore, all charges related to drug possession and distribution were dismissed pursuant to the plea agreement. Defendant's point is thus inconsequential and lacks merit.
Defendant also argues that the trial judge improvidently departed from a position of neutrality by personally questioning a State witness at the hearing on the motion to suppress. It is well settled that "[t]he intervention of a trial judge in the questioning of a witness is both a power and a duty, and forms part of the judiciary's general obligation to ensure a fair trial "'conducted in [an] orderly and expeditious manner.'" State v. Medina, 349 N.J. Super. 108, 130-31 (App. Div. 2002) (quoting State v. Laws, 50 N.J. 159, 181 (1967)).
Our courts have long rejected the "arbitrary and artificial methods of the pure adversary system of litigation which regards the lawyers as players and the judges as a mere umpire whose only duty is to determine whether infractions of the rules of the game have been committed." [Medina, supra, 349 N.J. Super. at 130 (quoting State v. Riley, 28 N.J. 188, 200 (1958), appeal dismissed, cert. denied, 359 U.S. 313, 79 S.Ct. 891, 3 L.Ed. 2d 832 (1959)); see also N.J.R.E. 614 (stating that the judge "may call a witness and may interrogate any witness")].
In the matter in question, the judge did not overtly prejudice either party when he questioned Officer Tierney. The judge sought to clarify the testimony in order to best rule on the motion. Furthermore, this questioning accrued in the context of a hearing on a motion to suppress evidence, where the judge is sole fact finder. In such a scenario, the issues of prejudice to the defendant are of less concern than where such questioning is conducted in front of a jury. See State v. Taffaro, ____ N.J. ____ (2008) (slip. op. at 10-11) (recognizing that judges should have more latitude to question witnesses when they serve as fact finders.). We find no error on this point.
Lastly, defendant asserts that the court abused its discretion when it sentenced defendant to the maximum allowable term for a third degree offense. Defendant also claims that the sentencing court failed to take into consideration certain mitigating factors, namely: defendant's conduct did not cause serious harm, N.J.S.A. 2C:44-1(b)(1) and defendant did not contemplate serious harm, N.J.S.A. 2C:44-1(b)(2).
The appellate review of a criminal sentence must follow a three-step process. The court must:
"(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case make the sentence clearly unreasonable so as to shock the judicial conscience."
[State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984) (emphasis omitted)).]
The record clearly shows that the court sentenced defendant within the statutory range for the third degree offense of resisting arrest. See N.J.S.A. 2C:43-6(3) (stating that prison sentences for crimes of the third degree shall be fixed to a term between three and five years). The court also conducted a fair assessment of the aggravating and mitigating factors. Defendant had an extensive criminal history, including twenty-eight known arrests resulting in one municipal conviction and fourteen other indictable convictions. Defendant's arrest record began in 1979 and continued to the present day for crimes ranging from writing bad checks to possession of CDS with intent to distribute.
The judge did not abuse his discretion by refusing to find any mitigating factors. See, e.g., State v. Doss, 310 N.J. Super. 450, 461-62 (App. Div. 1998); State v. Davis, 175 N.J. Super. 130, 142 (App. Div. 1980). Considering the deference which is to be paid to the trial court and considering further (a) defendant's extensive record, (b) the full context of the plea agreement, pursuant to which eight of the nine counts were dismissed, and (c) defendant's potential exposure to an extended term, this five-year sentence does not shock the judicial conscience.
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