September 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERALD P. WILLIAMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, No. 05-12-1310.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Wefing and Parker.
After the trial court denied his motion to suppress, defendant entered a negotiated plea of guilty to one count of possession of a controlled dangerous substance, cocaine. The trial court sentenced defendant to three years on probation, conditioned upon defendant serving 364 days in the Union County jail. N.J.S.A. 2C:45-1(e). Defendant has appealed, challenging the denial of his motion to suppress. R. 3:5-7(d). After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction but remand for resentencing.
One witness testified at the suppression hearing, Police Officer Anthony Gural of the Elizabeth Police Department. Officer Gural was on routine patrol in a marked vehicle on September 27, 2005; his partner was driving. At approximately one o'clock in the morning they passed a gas station which included a convenience store. Some five to six individuals were congregated in the area. The officers knew the area to be a high-crime area known for narcotics trafficking and, although they had received no specific complaints that evening, they had, in the past, received complaints from the attendants and others of people congregating there. The officers pulled into the station with the intent to disperse the assembled group.
Officer Gural testified that defendant approached the patrol car and, leaning on the car, asked whether the officers did not have anything better to do. Gural said that he was able to see a clear plastic Ziploc baggie in the left front pocket of defendant's shirt and vials within the baggie. Gural stepped out of the patrol car and walked around it toward defendant. As he approached defendant he got a better view of the baggie and the vials within it. Officer Gural grabbed the baggie which contained seven glass vials and placed defendant under arrest.
Defendant raises the following issues on appeal:
POINT I THE ONLY ITEM IN PLAIN VIEW AT THE TIME THE OFFICER SEARCHED DEFENDANT WAS A ZIPLOCK BAGGIE, WHICH, IN THE ABSENCE OF OTHER SUSPICIOUS CIRCUMSTANCES, DID NOT PROVIDE THE OFFICER WITH PROBABLE CAUSE TO ASSOCIATE THE BAGGIE WITH CRIMINAL ACTIVITY. ACCORDINGLY, THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED. U.S. CONST. AMEND. IV; N.J. CONST. (1947) ART I, PAR. 7 POINT II THE COURT BELOW DENIED DEFENDANT A FAIR AND OBJECTIVE HEARING ON THE MOTION TO SUPPRESS BY INTERFERING WITH DEFENSE COUNSEL'S CROSS-EXAMINATION OF THE POLICE OFFICER AND ENGAGING IN A LEADING EXAMINATION OF THE WITNESS, THEREBY BECOMING AN ADVOCATE FOR THE STATE TO ESTABLISH PROBABLE CAUSE FOR THE SEIZURE. U.S. CONST.
AMEND. XIV POINT III THE SENTENCE ORDERED IN THE JUDGMENT OF CONVICTION FAILS TO COMPORT WITH THE SENTENCE IMPOSED BY THE COURT AT THE SENTENCING PROCEEDING AND VIOLATES STATE LAW. N.J.S.A. 2C:43-2b(2)
The premise of defendant's first argument is that the officer initially saw only the plastic baggie, not the vials within it. That premise rests upon the police report Officer Gural prepared after the arrest. Within that report, Officer Gural wrote:
As Williams bent over to speak to us through the drivers side window, I observed a clear zip lock baggie in his shirt breast pocket.
The baggie I observed in Williams' pocket is commonly used to carry glass vials used for CDS distribution. We exited our vehicle, approached Williams and grabbed the baggie that was now partially hanging out of Williams' pocket. The baggie contained 7 glass vials containing a white powder, suspected cocaine.
Defendant contends that there is a discrepancy between this report and Gural's testimony at the motion to suppress, where he said that he observed the vials within the baggie before he seized it. Gural was, however, cross-examined about this issue at the motion to suppress and asserted that he merely forgot to include within his report that he saw the vials as he was seated in the police car and as he approached defendant. The trial court accepted Gural's explanation and found his testimony credible. Those credibility assessments and findings are binding upon us on appeal. State v. Locurto, 157 N.J. 463, 471 (1999).
We have carefully reviewed the transcript of the motion to suppress, and we are satisfied that it does not support defendant's second argument. The trial court did not improperly intervene in the proceedings to defendant's detriment.
It is well recognized that although participation must not exceed the bounds of judicial propriety, a trial judge may question witnesses. In this regard the judge possesses broad discretion and may question a witness to clarify existing testimony or to elicit facts material to the trial . . . . [T]he judge must exercise his power to participate actively . . . with great restraint and with an effort to maintain an atmosphere of impartiality . . . . [State v. Cohen, 211 N.J. Super. 544, 552-53 (App. Div. 1986) (citations omitted), certif. denied, 107 N.J. 115 (1987).]
When defendant appeared before the trial court for sentencing, the trial court directed that defendant be placed on probation for three years and serve 364 days in the Union County jail. The judgment of conviction directs that defendant serve 364 days in the Union County jail and that defendant would be placed on probation for three years upon his release.
Defendant contends that the judgment of conviction imposed a cumulative sentence of four years--one year in the county jail and three years on probation, as opposed to the transcript of the sentencing proceeding, which imposed a three-year sentence overall. The State agrees that there is an ambiguity and that the matter should be remanded to the trial court for resentencing to clarify the court's intent. We agree that an ambiguity exists, requiring clarification by the trial court. This is not an instance in which the sentencing transcript and the judgment of conviction are in conflict. In such a situation, the transcript prevails. State v. Vasquez, 374 N.J. Super. 252, 270 (App. Div. 2005); State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956). At that resentencing, the trial court should inform defendant of the potential consequences if he were to violate the conditions of his probation. R. 3:21-4(c).
Defendant's conviction is affirmed; the matter is remanded for resentencing.
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