July 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HUGH H. JETER A/K/A ALQUTAK JETER, HEUGINE JETER, HUGH A. JETER, HUGH HARRON, HUGHJINE H. JETER, HUGHJINE JACKSON, HUGH JETER HERION-ALTERICK, JETERT HUGH, JETER HUGH, LAMONT H. JACKSON, LAMONT H. JETER, LAMONT H. JETTER, LAMONT JACKSON, MALIK SHABAZZ, SHAUN ALLEN. DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1365.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 3, 2009
Before Judges Winkelstein and Gilroy.
On December 16, 2005, defendant Hugh H. Jeter and co-defendants Lashona Odiase and Joseph Nox were charged by a Union County Grand Jury with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3) (Count Two); and third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count Three). On March 28, 2006, the trial court denied their joint motion to suppress evidence. Prior to trial, co-defendant Odiase pled guilty. Tried to a jury, defendant was found guilty on all counts; co-defendant Nox was found not guilty on all counts.
On October 20, 2006, the trial court granted the State's motion to sentence defendant to a mandatory extended term, pursuant to N.J.S.A. 2C:43-6f. Following the grant of the State's motion and after finding aggravating sentencing factors N.J.S.A. 2C:44-1a(3) and (9) and no mitigating sentencing factors, the court sentenced defendant on his conviction on Count Three to an extended term of eight years of imprisonment with a four-year period of parole ineligibility. The court also imposed all appropriate fines and penalties, suspended defendant's driving privileges for a period of six months, and merged the convictions on Counts One and Two with the conviction on Count Three.*fn1
On appeal, defendant argues:
THE TRIAL COURT SHOULD HAVE GRANTED THE MOTION TO SUPPRESS.
THE MATTER SHOULD BE REMANDED FOR A HEARING PURSUANT TO [STATE V. LAGARES, 127 N.J. 20 (1992)] WHERE THE PROSECUTOR WILL BE OBLIGED TO STATE HIS REASONS FOR SEEKING AN EXTENDED TERM AND DEFENDANT WILL HAVE AN OPPORTUNITY TO ARGUE THAT THE APPLICATION IS ARBITRARY AND CAPRICIOUS.
THE SENTENCE IMPOSED WAS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
We affirm the conviction and sentence, and remand for the trial court to enter an amended judgment of conviction to correctly reflect that defendant was sentenced on Count Three and the convictions on Counts One and Two merged with the conviction on Count Three.
Defendant's argument in Point I challenges the trial court's denial of the pre-trial motion to suppress evidence. Accordingly, we briefly state the facts as adduced from the testimony of Patrolman Aaron Fernandez of the City of Linden Police Department on assignment to the Union County Prosecutor's Office Narcotics Strike Force and of Detective Richard Schubert of the Union County Police Department, the only witnesses to testify at the motion hearing.
On June 29, 2005, Fernandez received information from a confidential informant that defendant was involved in the distribution of cocaine. According to Fernandez, the informant was reliable, having worked with him on several prior occasions that resulted in arrests and drug seizures. In his conversation with Fernandez, the informant described defendant as a "[t]hin black male, braids, 30's" who was between 5'8" and 5'11" in height. He also explained that defendant would be arriving in a Honda Accord, Maryland license plate number KKP904, with a woman named Lashona, who would be wearing a black hat. He provided that the vehicle would arrive at the "area of the train station and Quick [Chek]" in Linden at approximately 5:00 p.m. No specific information was provided about a third individual who would be in the vehicle.
Fernandez shared the information provided by the informant with other officers at a briefing that same day. As a result of the briefing, Fernandez and the other officers initiated surveillance of the train station and Quick Chek parking lot. At 6:55 p.m., a vehicle which matched the description given by the informant containing two males and one female arrived at the Quick Chek. A "female exited the vehicle [and] checked the north and south side[s] of the train lot," as "if she [was] looking for someone." She, too, matched the informant's description. The female re-entered the vehicle and reached or "twisted towards the back seat." The vehicle then pulled out of the parking lot and was stopped by a marked patrol car.
On the evening in question, Schubert was seated in the front passenger seat of the patrol car that stopped defendant's vehicle. That patrol car contained an "in-car video camera" that turns on automatically whenever an officer activates the emergency lights. The video camera filmed the stop of the vehicle "[f]rom the time [Schubert] activated the lights until [the officers] were finished."
The tape of the investigatory stop was played for the court. It confirmed that a taillight on the vehicle was inoperable. The beginning of the tape also showed "the front passenger's side door [of defendant's vehicle] open up and then shut right away." Schubert testified that, from his patrol car, he "saw the front passenger door open up and . . . an item being dropped from inside the car."
Schubert and Officer Gary Black approached the vehicle, with Schubert approaching the passenger's side. Next to the passenger's side of the vehicle, Schubert observed a plastic bag in the sewer. Schubert "laid down on the street and reached in the sewer with [his] right hand and grabbed it from the bottom of the sewer." The bag contained "54 knotted bags with suspected cocaine in it." All three individuals were removed from the vehicle and handcuffed while it was searched. No contraband was found inside the vehicle. Black issued co-defendant Nox, the driver of the vehicle, a summons for the defective taillight.
Prior to trial, defendant filed a motion to suppress the bag of cocaine found in the sewer. In denying the motion, the court determined that "the primary issue [wa]s whether the information provided by the confidential informant combined or alone, separate from the police officer's observations, provided the officers with articulable suspicion to make an investigatory stop of the suspect vehicle in order for them to make an arrest." In analyzing the informant's trustworthiness, the court noted the details that the informant provided to the police about defendant's activities.
For example, [defendant's] full name was given, [his] race was described, his height, his build, his hairstyle, the informant knew and provided the name and make and model, the color, registration number of the vehicle that [defendant] would be in. The informant correctly predicted that there would be two other occupants in the car, the black female named Lashona and a black male. He also knew that Ms. Odiase would be wearing a black hat. Apparently, the informant correctly related that the defendants would go to the Quick Chek parking lot . . . in Linden, and although he was off by a few hours or couple hours . . . on the time of the arrival[,] all the other details panned out.
Further, the court acknowledged that the details "were corroborated by the officers prior to any stop of the vehicle." Accordingly, it concluded that "the investigatory stop of the vehicle on that information alone was lawful."
Alternatively, the court found that the officers had reasonable suspicion to stop the vehicle because "it had a defective taillight." Moreover, as to the issue of abandonment of the bag of cocaine, the court concluded that "the [defendant and co-defendants] did legally abandon the bag and they forfeited the right to privacy interest in it." Because the stop was justified and the police could lawfully seize the abandoned bag, the motion to suppress the bag of cocaine was denied.
Defendant argues that the motion to suppress should have been granted because there was no probable cause to justify the stop of the motor vehicle. Defendant contends that the State did not offer a "basis on which the informant claimed to know that which he/she stated"; the informant's description was uncorroborated; and "[t]here were no observations by the police which suggested dealing drugs." We disagree.
An appellate court's scope of review of a trial court's factual determination is limited. We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.
The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect individuals against unreasonable search and seizures. State v. Johnson, 171 N.J. 192, 205 (2002). "[O]ur constitutional jurisprudence expresses a preference that [police officers] secure warrants issued by neutral and detached magistrates before executing a search . . . ." State v. Frankel, 179 N.J. 586, 597-98, cert. denied, 543 U.S. 876, 125 S.Ct. 108, 160 L.Ed. 2d 128 (2004). A warrantless search is presumed to be unlawful unless it falls within one of the recognized exceptions to the warrant requirement. State v. DiLoreto, 180 N.J. 264, 275-77 (2004). "Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary." Frankel, supra, 179 N.J. at 598.
An investigative stop may be made on less than probable cause. State v. Williams, 317 N.J. Super. 149, 155 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999). "An officer does not need a warrant to make [an investigatory] stop if it is based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126-27 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968)). Accordingly, "it has been held that law enforcement officials may stop motor vehicles where they have a reasonable[,] articulable suspicion that a motor vehicle violation has occurred." State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990).
In addition, "[i]nformation relayed by informants may constitute a basis for probable cause." State v. Smith, 155 N.J. 83, 92, cert. denied sub nom., New Jersey v. Smith, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1998). Put differently, "[a]n informant's tip is a factor to be considered when evaluating whether an investigatory stop is justified." State v. Golotta, 178 N.J. 205, 213 (2003). Though hearsay, such information "may provide a sufficient basis for probable cause, so long as a substantial basis for crediting the hearsay is presented." Smith, supra, 155 N.J. at 92 (internal quotations and citation omitted).
"The sufficiency of the information related by an informant as a basis for establishing probable cause is determined by a standard that calls for consideration and analysis of all relevant circumstances." Ibid. Otherwise referred to as the "totality of the circumstances" test of Illinois v. Gates,*fn2
courts look to the informant's "veracity" and "basis of knowledge" in determining whether probable cause exists to justify an automobile stop. Id. at 93 (quoting Gates, supra, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed. 2d at 548). Under Gates, a deficiency in either of the two factors "may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Gates, supra, 462 U.S. at 233, 103 S.Ct. at 2329, 76 L.Ed. 2d at 545.
"An informant's veracity may be established in a variety of ways," including "the informant's past reliability." State v. Zutic, 155 N.J. 103, 111 (1998). As to an informant's basis of knowledge, "if the informant does not identify the basis of knowledge, a reliable basis of knowledge may nonetheless be inferred from the level of detail and amount of hard-to-know information disclosed in the tip." Ibid. "[I]ndependent corroboration of hard-to-know detail in the informant's tip may also greatly bolster the tip's reliability." Ibid. Under certain circumstances, although the totality of the circumstances test may not establish probable cause to subject a defendant to a personal search for contraband, it may generate "reasonable articulable suspicion to justify and investigative stop" of an automobile. Id. at 113.
After applying these principles to the facts as adduced at the suppression hearing and giving due deference to the trial judge's determination on the issue of credibility, we are satisfied that Judge Perfilio correctly concluded that the police had a justified reason to conduct an investigatory stop because of not only a visible motor vehicle violation but also on an articulable and reasonable suspicion that defendant was engaged in the criminal activity of transporting cocaine. We affirm substantially for the reasons expressed by Judge Perfilio in his thoughtful, oral opinion of March 28, 2006.
Defendant argues next that the trial court improperly imposed an extended-term sentence. Defendant contends that the prosecutor failed to state reasons on the record for seeking the extended-term sentence. Defendant requests that we vacate the sentence and remand to the trial court for a hearing where he will be afforded the opportunity to argue that the State's application for a mandatory extended-term sentence is arbitrary and capricious. We disagree.
The mandatory extended-term statute, N.J.S.A. 2C:43-6f, was enacted as part of the Comprehensive Drug Reform Act of 1987 (Act), N.J.S.A. 2C:35-1 to -23 and N.J.S.A. 2C:36-1 to -9. State v. Kirk, 145 N.J. 159, 166 (1996). Essentially, the Act "'targets for expedited prosecution and enhanced punishment those repeat drug offenders and upper echelon members of organized narcotics trafficking networks who pose the greatest danger to society.'" Id. at 167 (quoting N.J.S.A. 2C:35-1.1c). Specifically, N.J.S.A. 2C:43-6f provides:
[a] person convicted of . . . possessing with intent to distribute on or near school property . . . under [N.J.S.A. 2C:35-7], who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a [CDS] . . . , 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.A.] 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court. . . .
The statute further mandates that the prosecutor establish a defendant's eligibility at a hearing. N.J.S.A. 2C:43-6f.
However, "[t]he extended sentence imposed by N.J.S.A. 2C:43-6[f] is mandatory." State v. Irrizary, 328 N.J. Super. 198, 202 (App. Div.), certif. denied, 165 N.J. 562 (2000). A "prosecutor need only apply for the imposition of an extended term and establish eligibility by a preponderance of the evidence to meet the sentencing requirements." Ibid. Thus, a defendant's sentence may be vacated where he or she "has established that the prosecutor's decision to seek the enhanced sentence was an arbitrary and capricious exercise of prosecutorial discretion." Lagares, 127 N.J. at 33.
[T]he burden on defendant to prove that a prosecutor's decision to deny leniency constituted an arbitrary and capricious exercise of discretion is heavy. Defendants will have to do more than merely make general conclusory statements that a prosecutorial determination was abusive.
Instead, they must show clearly and convincingly their entitlement to relief under the standard established herein. Application of this standard is consistent with the legislative determination to make an extended sentence for repeat offenders the norm. [Ibid.]
Defendant concedes that he "had the requisite prior conviction for possession of a CDS with intent to distribute" to make him eligible for an extended-term sentence pursuant to N.J.S.A. 2C:43-6f. Therefore, his argument rests solely on the fact that he believes the prosecutor failed to state his reasons for seeking the extended term on the record.
Contrary to defendant's position, the record reflects that the court acknowledged receipt of the State's application for a mandatory extended-term sentence, which included a certification providing that defendant had been previously convicted of possession of a CDS with intent to distribute in a school zone. Although the State did not speak in support of the extended term at sentencing, the court indicated that the prior conviction was the State's basis for its application.
Noting that defendant was eligible for the mandatory extended term of N.J.S.A. 2C:43-6f, the court asked defense counsel whether she "would like to be heard on the State's application for [an] extended term." She responded: "No, [y]our [h]onor. I think that it comports technically with [N.J.S.A. 2C:43-6f]." Instead of arguing against the State's application, counsel agreed with the court and the State that defendant was eligible for a mandatory extended term. Counsel then focused her argument on where in the extended term range she believed defendant's sentence should fall. Thus, defendant's argument that he was not afforded an opportunity to contest the application has no merit.
Lastly, defendant argues that the imposition of the extended-term sentence of eight years of imprisonment with a four-year period of parole ineligibility was "manifestly excessive and unduly punitive." We conclude that the argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
The conviction and sentence are affirmed; the matter is remanded for the trial court to enter a corrected judgment of conviction.