August 3, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASHON S. WARD AKA TAMIER WARD, MICHAEL WARD, MICHAEL PITTMAN, RAHJON PITTMAN, RAHJON I. WARD, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MALACHI BROWN AKA RONALD D. HILL, RONALD W. HILL, MALACLLI BROWN, MALICILLI BROWN, RONALD HILL, MALICHI BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-01-0040.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 16, 2009
Before Judges Lisa and Collester.
We consolidate for disposition in this opinion these two cases, in which co-defendants Malachi Brown and Rashon S. Ward entered guilty pleas after denial of their suppression motion.
Pursuant to a negotiated plea agreement, Brown pled guilty to count two of the indictment, charging him with third-degree possession with intent to distribute a controlled dangerous substance (CDS) within 1000 feet of school property, N.J.S.A. 2C:35-7. As recommended in the plea agreement, he was sentenced to five years imprisonment with a three-year parole disqualifier, and the remaining seven counts against him were dismissed.
Ward did not enter into a plea agreement with the prosecutor, but he entered a "non-negotiated plea," by which the court agreed to sentence him to five years imprisonment with a three-year parole disqualifier in exchange for his plea of guilty to all eight counts in the indictment against him. See R. 3:9-3(c). At sentencing, the judge merged all other counts with count two, third-degree possession with intent to distribute a CDS within 1000 feet of school property, N.J.S.A. 2C:35-7, and sentenced defendant to five years imprisonment with a three-year parole disqualifier.
Brown argues on appeal:
THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.
A. The Police Did Not Have Probable Cause To Search The Basement.
DEFENSE COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY FAILING TO TIMELY FILE DEFENDANT'S BRIEF IN PREPARATION FOR THE SUPPRESSION HEARING.
THE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR POSSESSION OF CDS WITH INTENT TO DISTRIBUTE WITHIN 1,000 FEET OF A SCHOOL PROPERTY WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION. Ward argues on appeal:
THE DENIAL OF DEFENDANT'S MOTION TO SUPPRESS WAS ERROR AS COUNSEL'S FAILURE TO FILE A BRIEF WAS INEFFECTIVE ASSISTANCE OF COUNSEL, THE APPLICATION OF THE REMEDY AS FOUND IN STATE V. HEWINS WAS ERRONEOUS, AND THERE WERE INSUFFICIENT EXIGENT CIRCUMSTANCES TO JUSTIFY A WARRANTLESS SEARCH. THE DENIAL OF THE MOTION VIOLATED DEFENDANT'S FIFTH AND SIXTH AMENDMENT RIGHTS.
A. Ineffective Assistance Of Counsel.
B. The Trial Court's Decision To Disallow Defendant's Brief Was An Abuse Of Discretion.
C. As There Was No Exigency, The Entry Into The Basement Was An Illegal Search.
We reject the arguments of both defendants and affirm their convictions and sentences.
After defendants filed their motion to suppress physical evidence, namely drugs seized as a result of a warrantless search from the basement of 307 Bond Street in Elizabeth, the prosecutor filed a brief in opposition, which included a full statement of facts. See R. 3:5-7(b). The hearing on the suppression motion was initially scheduled for April 2007, but not held until June 22, 2007. Although defense briefs were initially due on April 20, 2007, neither defendant submitted a brief in advance of the June 22, 2007 hearing as required by Rule 3:5-7(b). Both defendants apparently filed briefs with the court on the morning of the hearing. Those briefs had not been served on the prosecutor. The prosecutor requested and the court granted as a sanction that no evidentiary hearing would be held, and the facts stated in the prosecutor's brief would provide the basis for disposition of the motion. See State v. Hewins, 166 N.J. Super. 210, 215 (Law Div. 1979), aff'd, 178 N.J. Super. 360 (App. Div. 1981). We therefore set forth the facts by reference to the prosecutor's suppression motion brief.
At about 6:00 p.m. on October 20, 2006, two Elizabeth police officers established a surveillance at 307 Bond Street, a multi-level, multi-unit apartment building. This area is known for high narcotics activity. One officer had an unobstructed view of the front of the building, while the other officer positioned himself next to the side door. Brown was seen walking in the rear of the common hallway carrying a bucket with distinctive markings. He unlocked the padlock on the basement door, took several steps down the stairs, returned without the bucket, and relocked the door. Both defendants then stood in front of the building. Brown received currency from two other individuals, after which he walked back into the common hallway unlocked the basement door, walked into the basement, and quickly emerged, after which he replaced the padlock. Brown then returned to the front of the building and handed a small object to the individuals from whom he had received the currency.
At about 6:45 p.m., a woman approached Brown and handed him currency. Brown entered the hallway, unlocked the basement door, took several steps down the stairs, and returned after a few seconds. He left the door unlocked and walked toward the front of the building. He gave several small objects to the woman who had given him currency. She was apprehended in the neighborhood and found in possession of two vials of cocaine in the pocket into which she was observed placing the objects handed to her by Brown.
At 6:55 p.m., another individual approached Ward in front of the building and handed him currency. Ward entered the hallway, opened the basement door, took several steps down, and returned after a few seconds. Ward then closed and locked the basement door and returned to the front of the building, where he handed a small object to the individual who had given him the currency. That individual was also apprehended in the neighborhood and found in possession of one vial of cocaine in the jeans' pocket where he had placed the small object handed to him by Ward.
The police then moved in to arrest Brown and Ward. Ward was arrested outside of the building at 207 Third Street. Brown was arrested in the hallway of 307 Bond Street. Upon being stopped, Brown immediately yelled "88" down the hall. The officers recognized this as a common expression used by drug dealers and lookouts to alert each other of a police presence. Brown further yelled, "[G]et rid of the shit." One of the officers approached the basement door. It was locked. The officer went to the outside entrance to the basement and discovered that the bilco doors were jammed from the inside. A search of Brown revealed $48 in currency and a small key hidden in his cellular phone case.
The officers suspected there may be an additional party in the basement who was alerted of their presence by Brown. Therefore, the officers used the key taken from Brown to unlock the door. Descending the stairs, the officers found the bucket previously carried by Brown approximately halfway down. The bucket contained eighty-seven vials of cocaine and twenty-one envelopes of heroin. The police seized the drugs.
Based upon this evidence, Judge Donohue found that the police had probable cause to believe that drugs would be found in the basement. He further found that exigent circumstances existed justifying the warrantless entry into the basement to search for the drugs. He reasoned that because Brown had called out a signal that police were present and yelled out to get rid of "the shit," if there were a confederate in the basement, the drugs suspected of being there could easily and quickly be destroyed.
We agree with Judge Donohue's analysis. Neither defendant disputes on appeal that probable cause existed.*fn1 They dispute the presence of exigent circumstances. They argue that the police should have secured the building and applied for a warrant. They further argue that it is illogical to believe that a confederate was in the basement because Brown and Ward were seen repeatedly locking the basement door from the outside with a padlock.
We are in agreement with Judge Donohue that it was reasonable for the police to believe that the drugs might be destroyed if immediate action was not taken. Numerous buyers were coming and going within a short time frame. This was a multi-unit building. Brown's exclamation would have been heard by other occupants of the building as well as any potential confederate in the basement. Drugs can easily be destroyed or disposed of. Immediate action was necessary and appropriate. Securing the building and waiting for a warrant was not a viable option.
We also agree that it was reasonable for the police to believe a confederate might have been present in the basement. This is not only because of Brown's warning of police presence and directions to get rid of the contraband, but also because of the status of the bilco doors. The fact that they were blocked from the inside lent credence to the belief by the police that someone might well be in the basement, who could keep watch on the drugs and escape quickly if necessary by unblocking the doors and exiting, but could, at the same time, keep others (including intruders or the police) out while the drug sales were being conducted.
The factors to be considered under the exigent circumstances exception to the warrant requirement are well established, see State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990), and we need not repeat them here. We are satisfied that the judge correctly applied these factors and did not err in concluding that a sufficient exigency existed.
We reject Ward's argument that the judge mistakenly exercised his discretion in disallowing the late filing of his brief and not conducting an evidentiary hearing. Only when material factual issues are in dispute is an evidentiary hearing required. Hewins, supra, 166 N.J. Super. at 215. We have reviewed the transcript of the suppression hearing. Neither defense counsel raised any disputed fact. Defense counsel did not ask that their briefs be marked for identification and made part of the record of that hearing to preserve a record of any disputed fact raised in the briefs. Defendants' appellate counsel have not sought to include in the appellate record the briefs submitted by trial counsel, nor have they argued that any material facts were in dispute. Their argument is limited to the contention that they should have been allowed to test the credibility of officers on the scene through cross-examination. This is not the purpose of a suppression motion. The scheme for the order and contents of briefs on suppression motions as contained in Rule 3:5-7 "seeks to avoid the time-consuming taking of testimony solely for the purpose of affording defense counsel additional discovery, and an opportunity to examine the State's witnesses in advance of trial." Id. at 214.
We also reject the argument that the judge erred by not relaxing the requirements of Rule 3:5-7 and allowing the late filing of the briefs or granting the State an adjournment to be able to adequately prepare and present witnesses. No such requests were made in the trial court, and they are not properly raised for the first time on appeal. State v. Arthur, 184 N.J. 307, 327 (2005). Further, we reiterate that at no time in these proceedings have defense counsel suggested what material fact is in dispute.
Both defendants argue that their trial counsel were ineffective for failing to timely file briefs in preparation for the suppression hearing. Under the Strickland/Fritz*fn2 test, defendants must establish (1) that their attorneys' representation was deficient, and (2) that but for the deficient conduct, the outcome of the proceeding would have likely been different. Even if the first prong is established, we could not find, on this record, establishment of the second prong, because there is no basis upon which to find that any material fact was in dispute. Nevertheless, out of an abundance of caution, and recognizing that there may be matters which lay outside the record before us that might need to be addressed in a collateral proceeding, our affirmance is without prejudice to the right of defendants to address this issue in a post-conviction relief proceeding. State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).
Finally, we address Brown's argument that his sentence was excessive. He received the sentence for which he bargained, which was negotiated in accordance with the Brimage*fn3 guidelines. The judge found three aggravating factors applicable: the risk that defendant would commit another offense, the extent of his prior record, and the need for deterrence. The judge found no mitigating factors. He found that the aggravating factors substantially outweighed the non-existent mitigating factors. The judge's findings on the aggravating and mitigating factors were supported by sufficient credible evidence in the record, the judge correctly applied the sentencing guidelines enunciated in the Code of Criminal Justice, and the sentence imposed was not excessive and did not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).