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State v. Carter

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAWRENCE CARTER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 06-11-3498-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 9, 2009

Before Judges Axelrad and Winkelstein.

In November 2006, an Essex County grand jury, in indictment no. 06-11-3498, charged defendant with third-degree possession of cocaine, N.J.S.A. 2C:35-10 (count one); third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5 (count two); third-degree possession of cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and third-degree resisting arrest, N.J.S.A. 2C:29-2 (count four). In accusation no. 07-06-0950, the State charged defendant with fourth-degree possession of marijuana, N.J.S.A. 2C:35-5 (count one); and third-degree possession of marijuana with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count two).

After the trial judge denied defendant's motion to suppress evidence, defendant pleaded guilty to counts one and four of the indictment and count two of the accusation. The court imposed a four-year prison term as to the charges in the indictment, concurrent with a four-year prison term, subject to a one-year period of parole ineligibility, under the charge in the accusation. The court dismissed the remaining charges.

On appeal, defendant raises three points:

POINT I

DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AS THE COCAINE WAS SEIZED BY THE POLICE AFTER A SHOW OF AUTHORITY IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS. U.S. CONST. AMEND. IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7.

POINT II

THE TRIAL JUDGE ERRED BY DENYING THE DEFENDANT'S REQUEST TO HOLD AN EVIDENTIARY HEARING AND PRESENT TESTIMONY AT THE SUPPRESSION HEARING IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS. U.S. CONST. AMEND IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7.

POINT III

THE DEFENDANT'S SENTENCE WAS EXCESSIVE.

We affirm.

Because the trial court did not take testimony prior to deciding defendant's motion to suppress, we take the facts from the parties' briefs. According to defendant's trial brief,

On Tuesday, August 1, 2006, a number of people were playing cards on Norfolk Street in front of the New Hope Village. No one in the group was involved in any transaction, aside from the card game. At some point, the police chased an unknown male up the hill, past the card game. The police searched the area, found something, and arrested Lawrence Carter.

In that brief, defendant made the following argument:

Clearly under the facts purported by the defendant, the police lacked probable cause because they observed no suspicious activity or criminal behavior, they merely chased a black male past the card game, searched the surrounding area and arrested [defendant] after finding an object. No one in the group saw [defendant] drop an object.

The behavior allegedly observed by the police, as asserted in the State's version of the facts are also insufficient to pass muster as probable cause. The officer[s] observed no illegal activity whatsoever, yet felt it necessary to announce that they were the police and display their badges. This act conveys a clear intent on the part of the police to detain the group or a person in the group for at least an investigative stop and indicates to everyone in the group that they are not free to leave. There would be no need to announce police presence and display their badges if the police did not intend to convey to the group that they were free to leave.

The State, in its brief to the trial court, related the following facts:

On Tuesday, August 1, 2006, members of the Newark Police Department assigned to the Criminal Gang Intelligence [Unit] were clad in plain clothes and utilizing unconventional vehicles patrolling the area of Norfolk and New Street due to the high level of gang violence, the open sales of illegal narcotics and other quality of life issues.

While driving south on Norfolk Avenue the officers' attention was drawn to group of black males congregating in front of the New Hope Village. The officers decided to park their vehicle and investigate further. When the defendant observed officers exit their vehicle with their badges clearly displayed around their neck[s] and their announcement of their presence by stating "Police", he tossed a clear medium sized sandwich bag with glass vials containing a white powder substance to the ground.

Due to the officers' training and experience they believed that the object was suspected CDS-Cocaine. At that point, the defendant began to run through New Hope Village. Det. Morgan pursued the defendant as he ran through the complex while Det. P. Torres without losing sight of the clear plastic bag, recovered the item from the ground.

After a short foot pursuit, Det. Morgan was able to apprehend the defendant. When the officer attempted to place the defendant under arrest the defendant began to swing his arms in order to avoid being handcuffed. When backup units arrived, they were able to assist in properly securing the defendant.

The defendant was then transported to the police department and charged accordingly. The defendant was found to have $158.00 in currency which was confiscated as part of the proceeds of illegal narcotics activities. The plastic bag had a total of 21 glass vials containing CDS-Cocaine.

In his brief on appeal, defendant again asserts that while a group of African American males were in front of a public housing complex, undercover Newark police officers parked their vehicles, got out of their cars, and displayed their badges and stated "police." According to the defense, at that point, "the police chased an unknown person up a hill, searched the area, found contraband on the ground, and then charged defendant . . . with the contraband they found."

We first address defendant's argument that his suppression motion should have been granted because when the police demonstrated their authority, he was not free to leave and was thereby "seized." An analysis as to whether there has been a seizure is fact specific, and "depends on an objective analysis of all the circumstances of [the citizen's] encounter" with police. State v. Tucker, 136 N.J. 158, 165 (1994). A seizure occurs if, given the surrounding circumstances, "a reasonable person would have believed that he was not free to leave." State v. Sloane, 193 N.J. 423, 430 (2008) (internal quotation omitted). A police officer may approach a person in a public place simply to question that person, and when he does so, that does not constitute a seizure under the New Jersey Constitution. State v. Elders, 192 N.J. 224, 246 (2007). Such a "field inquir[y]" is permitted, even if not based on a well-grounded suspicion of criminal activity. Ibid. It is only when the police restrict a person's movement, "such as an arrest or an investigatory stop or detention," that there must be compliance with acceptable constitutional standards. Ibid.

Here, defendant does not argue that the police chased him and then he discarded the cocaine. Rather, he contends that "it cannot be disputed that the police did not have probable cause at the time they called out 'police.'" At that point, he claims, the police seized him. His argument lacks merit. The police are entitled to conduct a field inquiry without having a well-grounded suspicion of criminal activity, let alone probable cause. Ibid. At the time defendant discarded the contraband, the police had not conducted a search, nor had they explicitly or implicitly conveyed to defendant that he was not permitted to leave the area.

Defendant asserts that Tucker, supra, 136 N.J. 158, is directly on point and supports his argument. We disagree. In Tucker, while riding in a marked police vehicle, officers observed two males sitting on a curb at the rear of a house. Id. at 161-62. One male remained on the curb when he saw the police vehicle. Id. at 162. The other man, the defendant, stood up, turned, "and started running through the yard toward the front of the property[.]" Ibid. A police officer began chasing him. Ibid. The police summoned assistance from a nearby patrol car, which attempted to set up a blockade to trap the defendant. Id. at 166. As the defendant ran past a house, he threw a clear plastic bag into an opening under the porch, which the officers ultimately recovered; it contained crack cocaine. Id. at 162.

The Law Division granted the defendant's motion to suppress the evidence, and we agreed, concluding that a seizure had occurred. Id. at 163-65. The Supreme Court affirmed, finding that under the circumstances, after the police officer summoned assistance from a nearby patrol car that attempted to set up a blockade to catch the defendant, the defendant "could not have felt free to leave." Id. at 166. The Court found that "[s]uch police actions would cause a reasonable person to believe that the police wanted to capture him and not just speak with him." Ibid.

Here, the facts are not analogous to those in Tucker. The police here made no attempt to "seize" defendant until after he discarded the cocaine and then started to run. At the time defendant discarded the cocaine, a reasonable person would have felt free to leave the area. The police had taken no action to infringe on defendant's right to leave. Had defendant walked away, or even run away, before discarding the cocaine, and the police chased him, defendant may have a valid Tucker argument. That is not, however, what happened.

Defendant claims that the trial judge should have held an evidentiary hearing before deciding the suppression motion. We disagree. A hearing on a motion to suppress is only necessary if material facts are in dispute. R. 3:5-7(c); State v. Kadonsky, 288 N.J. Super. 41, 45-46 (App. Div.), certif. denied, 144 N.J. 589 (1996). Here, no facts were in dispute; defendant has not directly refuted the State's claim that he discarded the cocaine before beginning to run and before being chased by the police. He "put no facts on record to support" his argument. Id. at 46.

Finally, defendant claims that his four-year sentence was excessive. Again, we disagree. The court found aggravating factors three, a risk of recidivism; six, the extent and seriousness of defendant's prior record; and nine, the need for general and specific deterrence. Defendant had two juvenile adjudications, ten adult arrests, and five indictable convictions. The offenses charged in the accusation occurred while he was on bail for the offenses charged in the indictment. The trial court weighed the aggravating factors against the lack of mitigating factors and properly exercised its discretion. See State v. Roth, 95 N.J. 334, 365 (1984). The four-year sentence was within the statutory framework for a third-degree crime. N.J.S.A. 2C:43-6a(3). The sentence does not shock our judicial conscience. State v. Dalziel, 182 N.J. 494, 501 (2005).

Affirmed.

20090630

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