October 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TITUS P. LOUISON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-01729-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Carchman and Simonelli.
A grand jury indicted defendant Titus Louison for third degree possession of a controlled dangerous substance (CDS) (marijuana), contrary to N.J.S.A. 2C:35-10a(3) (count one)*fn1 and third degree possession of CDS with intent distribute, contrary to N.J.S.A. 2C:35-5b(11) (count two). The charges stemmed from an undercover surveillance. Prior to trial, defendant filed a motion to suppress evidence obtained without a warrant and a motion to compel disclosure of the surveillance site. Judge Venezia denied both motions.
A jury convicted defendant on count two. After denying defendant's motion for a new trial, the judge sentenced defendant to a mandatory extended five-year term of imprisonment, imposed the appropriate assessments and penalties and suspended defendant's driver's license for six months. The judge also found defendant guilty under a separate indictment of violating his probation and imposed a consecutive four-year term of imprisonment.
On appeal, defendant raises the following contention:
THE DEFENDANT WAS DEPRIVED OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO CONFRONTATION, DUE PROCESS AND A FAIR TRIAL WHEN THE COURT RULED THAT THE STATE DID NOT HAVE TO DISCLOSE THE VANTAGE POINT FROM WHICH THE POLICE VIEWED THE ACTIVITIES THAT LED TO HIS ARREST. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.
In a supplemental brief, defendant raises the following contentions:
THE CONVICTION AND SENTENCE FOR VIOLATION OF PROBATION ON COUNT TWO OF INDICTMENT NO. 02-10-1213 SHOULD BE REVERSED.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
We reject these contentions and affirm.
The following facts are summarized from the record. Detective Christopher Plowucha of the New Brunswick Police Department's Anti-Crime Unit*fn2 testified at the suppression hearing that the police received complaints about two individuals selling marijuana by a fence near apartment buildings located at 54 and 56 Roosevelt Avenue, New Brunswick.*fn3
The buildings are on a dead-end street in a known high crime, drug distribution area. An eight-foot chain link fence with two large holes is located at the end of the street and an industrial park is located on the other side of the fence.
At approximately 5:00 p.m. on October 21, 2004, using 20 x 50 powered binoculars Plowucha conducted surveillance of the area from a concealed location within two hundred feet from defendant's location.*fn4 Plowucha had a clear view and saw defendant walk through one of the holes in the fence, approach the driver's side of an small orange vehicle and hand the driver a small baggie of what appeared to be marijuana in exchange for cash. After the exchange, the car left the area. Based on his training and experience, Plowucha concluded this was a narcotics transaction.
Shortly thereafter, Plowucha saw a man in a tan jacket approach defendant in the front of the buildings. After a brief conversation, defendant went back through the hole and reached into a wooden pallet, retrieving a clear plastic bag containing two bags of marijuana.*fn5 Defendant removed one bag from the clear plastic bag and placed the clear plastic bag back into the pallet. Defendant then walked back through the hole and approached the other man. Although Plowucha did not see exactly what occurred between the two men, he saw that "[s]ome sort of transaction took place[.]" Based on his observation, the detective concluded that defendant was selling marijuana and that defendant stashed the marijuana in the wooden pallet instead of keeping it on his person.
Plowucha called his backup units, who arrested defendant. A search of the wooden pallet revealed a bag containing thirty-four bags of marijuana and another bag containing nine bags of marijuana. A search of defendant revealed $136 in cash.
At an in camera hearing on the disclosure motion, Plowucha described the surveillance area and location and testified that the location was the only site providing a line of sight for surveillance. The detective also testified that disclosure of the site location would render it useless for future surveillances and would jeopardize the site owners' safety.
Based upon Plowucha's testimony, Judge Venezia denied the motion, finding that the State demonstrated that disclosure of the site would be harmful to the public interest because it would compromise future surveillances and would result in a public safety issue. However, the judge permitted defendant to cross-examine the detective at trial about the distance of his observation and about his use of vision enhancing equipment.
Defendant contends that the judge deprived him of the right to confront Plowucha by conducting the in camera hearing outside defense counsel's presence and by sealing the record. This contention is without merit. Defense counsel was not permitted to attend the in camera hearing, State v. Garcia, 131 N.J. 67, 78 (1993), and "the 'official information privilege' permits the State to conceal the exact location of police surveillance" where the State "demonstrate[s] a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property" and where the defendant fails to make a substantial showing of need. Id. at 73, 78, 80.
Based upon our review of the record, we are satisfied Judge Venezia properly denied defendant's disclosure motion. The State demonstrated that disclosure would compromise future surveillances and endanger lives and defendant failed to make a substantial showing of need for the information.
We now address defendant's sentence on the violation of probation conviction.*fn6 Defendant contends that Judge Venezia weighed certain aggravating factors too heavily, failed to correctly analyze the aggravating and mitigating factors*fn7 and failed to articulate her reason for imposing a consecutive sentence. He posits that he should receive a concurrent three-year sentence. We disagree.
There is no dispute that defendant committed the present offense while on probation for a 2003 conviction for third degree intent to distribute CDS (marijuana), contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11). Whenever a defendant commits an offense while on probation, parole or bail, N.J.S.A. 2C:44-5 creates a presumption of consecutive terms, subject to the exercise of judicial discretion. State v. Sutton, 132 N.J. 471, 484 (1993).
The standards enunciated in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 465 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed 2d 308 (1986) should guide the court's exercise of discretion. Id. at 485. Although Yarbough requires a sentencing judge to state the reasons for a consecutive sentence, we may affirm where the facts and circumstances leave little doubt as to the propriety of the sentence and where there is no showing that the sentence is clearly mistaken. State v. Jang, 359 N.J. Super. 85, 98 (App. Div.), certif. denied, 177 N.J. 492 (2003).
The sentencing judge on defendant's prior conviction imposed a term of probation, finding mitigating factors N.J.S.A. 2C:44-1b(7) (defendant had no prior delinquency or criminal convictions) and N.J.S.A. 2C:44-1b(10) (defendant was particularly likely to respond affirmatively to probationary treatment). Judge Venezia rejected those mitigating factors, found aggravating factors N.J.S.A. 2C:44-1a(3) (the risk that defendant will commit another offense) and N.J.S.A. 2C:44-1a(9) (the need for deterring defendant and others from violating the law) and found no mitigating factors. After concluding that the aggravating factors outweighed the mitigating factors, the judge imposed a consecutive four-year term of imprisonment.
Although Judge Venezia's discussion of the consecutive sentence was limited, the judge did discuss what factored into her decision to impose the sentence. The judge's focus on defendant's risk of re-offense and the need to deter him from further violating the law is amply supported by the record. To be sure, only seven months after defendant received probation for his prior conviction for intent to distribute marijuana, he committed the same offense.
Though a more complete discussion of the Yarbough guidelines might have been desirable, we discern no abuse of discretion here. The facts and circumstances leave no doubt that the sentence is proper and there is no showing that it is clearly mistaken. The sentence is amply supported by sufficient credible evidence and should not be disturbed. State v. Pierce, 188 N.J. 155, 166 (2006); State v. O'Donnell, 117 N.J. 210, 219 (1989); State v. Roth, 95 N.J. 334, 364-66 (1984).