August 21, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN A. HADDOCK, A/K/A CHINO O. HADDOCK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, I-06-03-00412.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2008
Before Judges R. B. Coleman and Sabatino.
Defendant Juan A. Haddock appeals the trial court's denial of his motion to suppress evidence and its imposition of a prison sentence that defendant contends is manifestly excessive.
After reviewing the record in light of the contentions advanced on appeal, we affirm.
On February 16, 2006, defendant was charged under Hudson County Indictment Number 06-03-00412 with eight counts of drug related offenses. The case proceeded to trial on May 19, 2006. On May 30, 2006, the court heard defendant's motion to suppress evidence, which was denied. On June 6, 2006, defendant entered a guilty plea to count three of the indictment, possession of a controlled dangerous substance with intent to distribute within one thousand feet of a school, contrary to N.J.S.A. 2C:35-7 and -5a(1). In exchange for defendant's plea, the State agreed to recommend to the court a five-year prison sentence with two years parole ineligibility to run concurrent to the sentence defendant was serving at that time. The State also agreed to dismiss the remaining counts of the indictment.
On October 16, 2006, defendant appeared before the court for sentencing. The court sentenced defendant in accordance with the State's recommendation and imposed relevant fees and penalties. This appeal ensued.
On September 29, 2005, a citizen entered the Jersey City Police Department (JCPD) and stated that a drug dealer, identified by the complainant as Juan Haddock a/k/a Chino, who resided at 227 2nd Street. The complainant, who asked to remain anonymous, further stated that defendant sold narcotics, including heroin and cocaine, and delivered them using a vehicle. The complainant described the vehicle allegedly used by defendant as a gray Chrysler Concord and provided the JCPD with the vehicle's license plate number. The complainant also indicated that the vehicle was not registered to defendant.
Upon receiving this information, Sergeant William Olszewski began to investigate the matter. Olszewski first attempted to find a picture of defendant using the New Jersey Department of Corrections (DOC) website. Olszewski found a picture of defendant in the DOC database, as well as information indicating that defendant was wanted for escape. Thereafter, Olszewski contacted a confidential informant (CI), who had provided him with reliable information in the past, to ask whether he knew of defendant. The CI did have knowledge of defendant and stated that defendant delivered narcotics and was known to carry a handgun.
Later that day, Olszewski received a radio transmission from Sergeant McNally, advising Olszewski that he drove by the address provided by the citizen complainant and that the previously mentioned vehicle was parked across the street. Olszewski and his partner responded to the area as McNally began to set up surveillance of the vehicle. Before McNally could set up the surveillance, a man entered the vehicle and drove away. McNally could not identify the man because he was wearing a baseball cap pulled low to his face. McNally followed the vehicle and instructed Olszewski and his partner to follow also.
Shortly thereafter, the vehicle pulled over. Olszewski and his partner pulled their car in front of the vehicle and McNally, accompanied by Officer Williams, pulled over behind the vehicle, effectively preventing it from moving. Olszewski and his partner exited their vehicle, displaying their badges. Olszewski proceeded toward the vehicle with his gun drawn. As Olszewski approached, he observed the driver turn toward the passenger seat and push down the plastic surrounding the gear shift. As he moved closer, he could see the corner of a plastic bag protruding from the plastic cover surrounding the gear shifter. Based on his training and expertise, Olszewski believed the bag was either a butterfly or Ziploc bag, commonly used to package narcotics.
Olszewski removed the driver, whom he identified as defendant, from the vehicle and placed him under arrest. Olszewski then removed the plastic bag from under the gear shift. It contained four smaller bags of heroin, three bags of cocaine and a knotted bag of cocaine. A search of defendant revealed $1,530.
Defendant moved to suppress the evidence found in defendant's vehicle, alleging that Olszewski conducted an illegal search and seizure. The court found that Olszewski had probable cause to search defendant's vehicle, and that the search was valid under the exigency exception to warrantless searches.
On appeal, defendant presents the following arguments for our consideration:
POINT I: THE LOWER COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE EVIDENCE SEIZED DURING THE WARRANTLESS ARREST OF THE DEFENDANT AND SEARCH OF THE VEHICLE. (U.S. CONST. AMENDS. IV AND XIV; N.J. CONST. (1947) ART. I, ¶ 7).
POINT II: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
Defendant's first argument, that the trial court erred in denying his motion to suppress the evidence seized as a result of the warrantless search of defendant, is unfounded. A police officer may conduct an investigatory stop "if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986); accord State v. Stovall, 170 N.J. 346, 356 (2002) ("A police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity."). "Reasonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." Stovall, supra, 170 N.J. at 356. "[T]he ultimate standard in evaluating a seizure is 'reasonableness.'" State v. Sloan, 193 N.J. 423, 432 (2008) (citing Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed. 2d 706, 713 (1973)).
In the present case, Olszewski obtained credible information that defendant was wanted for escape. Based upon this fact, and in conjunction with the information provided by the citizen complainant and the CI, the police then had a reasonable and particularized suspicion that the man entering the vehicle was defendant. Stopping an individual believed to be an escapee certainly satisfies the aforementioned standard that the police had a reasonable belief that the individual was engaged in criminal activity. Thus, the seizure of defendant was lawful.
As for the subsequent warrantless search of defendant's vehicle, we find that it was wholly proper. "A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000). "[T]he automobile exception permits warrantless searches of readily movable vehicles if law enforcement officers have probable cause to believe the vehicle contains evidence of a crime." Ibid. In addition to probable cause, the State must demonstrate that "exigent circumstances [were] evident, making it impracticable for the police to obtain a warrant." Id. at 671.
The totality of the circumstances surrounding the search of defendant's vehicle support the conclusion that Olszewski had probable cause to conduct the search. The facts supporting this conclusion are as follows: (1) JCPD received a tip from an ordinary citizen, specifically identifying defendant as a drug dealer residing at 227 2nd Street who sold drugs from a gray Chrylser Concord not registered to defendant, see State v. Stovall, 170 N.J. 346, 362 (2002) (when an informant is an ordinary citizen, veracity is assumed); (2) the JCPD discovered that defendant was wanted for escape; (3) the JCPD corroborated the citizen's tip with a reliable CI that further stated defendant was often armed with a handgun; (4) when Olszewski approached the vehicle he saw the driver turn and place an item inside the hollow shaft area of the vehicle's gear shift; and (5) as Olszewski moved closer to the vehicle, he noticed a portion of a plastic bag protruding from the gear shift, which he identified as the type commonly used to package narcotics, based on his training and experience. This combination of facts satisfies the first requirement of the automobile exception, that the police had probable cause to believe the vehicle contained evidence of a crime. See State v. Alston, 88 N.J. 211, 231 (1981) (probable cause is defined by the Court as a "'well grounded suspicion' that a crime has been or is being committed.").
Furthermore, we are satisfied that exigent circumstances necessitated a warrantless search of the vehicle. In Cooke, supra, 163 N.J. at 672, the Court explained the meaning of exigent circumstances as "unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile. . . ." Alston, supra, 88 N.J. at 233, (citation omitted). Exigent circumstances may exist if the unanticipated circumstances that give rise to probable cause occur swiftly. Id. at 234. In addition, exigent circumstances may arise where "[a]ny element of surprise had been lost; the vehicle contained the 'contraband' drugs; there were 'confederates waiting to move the evidence'; the police would need 'a special police detail to guard the immobilized automobile.'" [State v. Colvin, 123 N.J. 426, 434-35 (1991).]
In this case, defendant's vehicle was stopped in a mixed residential-commercial area that was known for high drug activity and, based on the information from the CI, it was likely that defendant was armed. The vehicle was registered in another individual's name and that person might gain access to the vehicle on the street. Moreover, Olszewski testified that due to a lack of manpower, the JCPD could not leave a police car with defendant's vehicle prior to obtaining a warrant. Based on these facts, the second prong of the automobile exception was satisfied. Thus, the trial court appropriately denied defendant's motion to suppress the evidence.
We now turn to defendant's contention that his sentence was manifestly excessive. Defendant challenges the trial court's determination that three aggravating factors were applicable and that no mitigating factors were present. Defendant's argument lacks merit.
In State v. Soto, 385 N.J. Super. 247 (App. Div. 2006), this court upheld a defendant's sentence that was entered pursuant to a negotiated plea agreement, although the plea agreement called for the maximum sentence within the statutory range. We opined that "[b]y agreeing to a plea agreement containing a sentence recommendation of the [statutory maximum], rather than proceeding to trial, defendant waived any objection that the [maximum statutory] sentence was excessive." Id. at 255. We further stated:
If defendant had an objection to such a sentence, he should have raised it during negotiations with the State for the plea agreement or before the sentence was pronounced. Defendant cannot legitimately complain that the sentence was unexpected or that he received a sentence other than that for which he explicitly negotiated. [Ibid.]
We also noted that "a judge is authorized to impose a sentence within the range allowed by the jury verdict or by the defendant's admissions at a guilty plea after waiving his right to jury trial." Id. at 253 (quoting State v. Natale, 184 N.J. 458, 481 (2005)).
The facts of the present case are quite similar to the facts of Soto, supra. Defendant knowingly and voluntarily entered into a negotiated plea in which the State would recommend the maximum statutory sentence. See N.J.S.A. 2C:35-7; N.J.S.A. 2C:43-6. The trial judge sentenced defendant in accordance with the State's recommendation, which fell within the applicable statutory range. N.J.S.A. 2C:43-6. In light of Soto, supra, defendant waived his right to challenge the sentence as excessive.
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