May 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT TAYLOR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-09-1945.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 16, 2009
Before Judges Carchman and Simonelli.
Following an unsuccessful motion to suppress, defendant Robert Taylor entered a plea of guilty to possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1); and obstructing the administration of law, N.J.S.A. 2C:29-1. Defendant was sentenced to a term of eight years in prison with a four-year period of parole ineligibility on the drug offense and a concurrent term of eighteen months on the obstructing charge together with applicable statutory fees and penalties. We affirm.
The facts are simply stated. At approximately 10:30 p.m. on July 8, 2006, Atlantic City Police Officers Daniel Corcoran and Peter Calabrese were on walking patrol in the Cedar Court housing project. This area was known by both officers to be a high-crime, high drug-trafficking area, and had experienced a recent increase in drug-related violence. A "walking patrol" officer focuses on drug activity.
While walking through a parking lot located at the rear of Cedar Court, Officer Corcoran observed defendant Robert Taylor meet and speak to an older woman, as both were visible under overhead lights. After speaking for a few seconds, the woman handed defendant money. Defendant, in turn, handed the woman a small object. Officer Corcoran believed this exchange to be a drug sale, and the officers continued walking towards the couple.
As the officers approached, defendant and the woman became aware of their presence and appeared startled. Defendant started walking away at a fast rate of speed. The officers believed defendant to be the seller, and, preferring to apprehend the seller rather than the buyer, pursued him. Officer Corcoran asked defendant to stop. Defendant turned his head towards Officer Corcoran, continued walking and placed an object in the front part of his pants.
Officer Corcoran ran up to defendant, and defendant stopped. Defendant appeared extremely nervous as Officer Calabrese stood in front of him to prevent him from running further. Officer Corcoran told defendant to place his hands on his head and defendant complied. Officer Corcoran knew that street drug dealers sometimes carry weapons, that many shootings occur in the area and that he had uncovered weapons from drug dealers in the area in the past. As a result, Officer Corcoran patted defendant down. He discovered a bag of marijuana in defendant's waistband. The officers then handcuffed defendant, continued the search and uncovered a bag of cocaine in defendant's sock.
In his decision, the motion judge concluded that the totality of the circumstances justified the stop and the search. He concluded that the "conduct of the officers was constitutionally reasonable, objectively appropriate and that the search of the Defendant and the items which were found are appropriately utilizable as evidence and should not be suppressed."
On appeal, defendant raises the following issues:
POINT I THE WARRANTLESS SEARCH WAS NOT JUSTIFIABLE AS A SEARCH INCIDENT TO ARREST, AND THUS THE FRUITS OF THAT UNCONSTITUTIONAL SEARCH SHOULD HAVE BEEN SUPPRESSED.
POINT II DEFENDANT'S SENTENCE OF EIGHT YEARS WITH FOUR YEARS OF PAROLE INELIGIBILITY IS EXCESSIVE AND MUST BE REMANDED; THE JUDGE MISTAKENLY BELIEVED THAT A PAROLE INELIGIBILITY PERIOD WAS MANDATORY, WHEN IN FACT IT WAS NOT.
Defendant filed a pro se supplemental brief and asserted the same argument raised in Point I of counsel's brief.
Although defendant stresses that Officer Corcoran's testimony focused on the officer's intent to investigate rather than arrest, in assessing the propriety of the arrest and search, our inquiry must be whether the officers' conduct was objectively reasonable. State v. Amelio, 197 N.J. 207, 212 (2008). The subjective motivation of the officers is irrelevant. State v. O'Neal, 190 N.J. 601, 613-14 (2007).
The Supreme Court has addressed the propriety of an arrest in a factual scenario similar to the circumstances described here in State v. Moore, 181 N.J. 40 (2004). The facts in Moore were briefly stated by the Court:
We turn now to apply those principles to the present case. Detective Abrams was an experienced narcotics officer. He previously had made numerous drug arrest in the same neighborhood, which was known to the police for heavy drug trafficking. Using binoculars, he observed three men move away from the group to the back of a vacant lot, and he saw defendant and his companion give money to the third person in exchange for small unknown objects. Based on his experience and those factors, it was reasonable for Detective Abrams to conclude that the totality of the circumstances supported a well-grounded suspicion that he had witnessed a drug transaction. Therefore, the trial court properly determined that there was probable cause for Detective Abrams to arrest defendant. [Id. at 46-47.]
In Moore, the Court found probable cause and reiterated the "totality of circumstances" test enunciated in State v. Novembrino, 105 N.J. 95, 122 (1987). Moore, supra, 181 N.J. at 46.
As we noted, the facts here are strikingly similar, and we are satisfied that the observations of the officer of the exchange of currency for a small object, defendant's conduct upon seeing the officers as well as the attendant circumstances of location, time, and the officers' stated purpose for being in the area all support the arrest and search of defendant. The judge did not err in denying the motion to suppress. State v. Ingram, 196 N.J. 23, 49 (2008); State v. Adams, 194 N.J. 186, 203 (2008).
We are of the view that defendant's arguments regarding the sentence are without merit, R. 2:11-3(e)(2). While defendant argues that there was no mandatory minimum sentence, N.J.S.A. 2C:43-6(f) is to the contrary and provides:
A person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance or controlled substance analog under N.J.S. 2C:35-5, . . . who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S. 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court. The term of imprisonment shall, except as may be provided in N.J.S. 2C:35-12, include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, not less than seven years if the person is convicted of a violation of N.J.S. 2C:35-6, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole.
This language mandates that, once a prosecutor applies for an enhanced sentence, the court "shall" impose at least the minimal mandatory sentence, "notwithstanding that extended terms are ordinarily discretionary with the court." Ibid. Because defendant had two prior convictions for distribution of a controlled dangerous substance, the sentencing judge acted properly. Defendant's argument to the contrary is rejected.
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