September 21, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GIOVANNI GUTIERREZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-05-0863.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 14, 2009
Before Judges Fisher and Grall.
A jury found defendant Giovanni Gutierrez guilty of possession of a controlled dangerous substance, less than one-half ounce of cocaine, with intent to distribute, a crime of the third degree pursuant to N.J.S.A. 2C:35-5a(1) (count one); third-degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count two); and second-degree possession of cocaine with intent to distribute while within a public housing zone, N.J.S.A. 2C:35-7.1 (count three). The jury acquitted defendant of conspiring to distribute cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1), and acquitted his co-defendant, M.R., on all counts.
After merging defendant's convictions on counts one and two, the judge sentenced defendant as follows: on count two, N.J.S.A. 2C:35-7, an extended term of ten years, five to be served without possibility of parole; and on count three, N.J.S.A. 2C:35-7.1, a ten-year term, five to be served with possibility of parole, concurrent with the sentence imposed on count two. The judge also imposed a $1000 DEDR penalty on count two; a $2000 DEDR penalty on count three; a $50 lab fee on both counts; a $50 VCCB assessment on both counts; a $75 SNSF assessment on both counts; and one $30 LEOTEF penalty.
At about 11:45 p.m. on March 9, 2007, Sergeant Carlo Segarra of the Union City Police Department was patrolling in an unmarked police car. The detective saw someone hand money to M.R., after which M.R. and another person walked around the corner.
The detective repositioned his car so he could see M.R. The detective saw M.R. gesture to his companion as if to indicate that his companion should wait for him. M.R. then walked alone toward a car parked on the street. Defendant was in the car; M.R. knocked on the window and passed money to defendant. After giving defendant the money, M.R. got into the car. Defendant drove away, and the detective followed.
Defendant parked in a driveway less than a block away and on the same street. The detective stopped and left his unmarked police car. As he approached defendant's car in the driveway from behind, he saw defendant take something from a backpack and hand it to M.R. Accepting what defendant had given him, M.R. opened the car door and got out. Upon seeing the detective, M.R. addressed him by name, said he was "not doing anything" and dropped what he had in his hands to the ground. At that point, the detective directed M.R. to stand against the car and told defendant to keep his hands on the steering wheel.
The detective then called for back-up. Sergeant Luster was the only officer to respond. When Luster arrived, the detective retrieved the two clear wraps of cocaine that M.R. had dropped, searched defendant's person and found five more clear wraps of cocaine in his front pants' pocket. In the backpack defendant had left on the front seat of the car, the detective found siX more plastic wraps of cocaine, a large plastic bag of cocaine and an aspirin bottle with twenty-five clear wraps of crack cocaine.
There was evidence that tended to establish that the area in which the events transpired was within 1000 feet of school property and 500 feet of a senior citizen housing facility.
Neither defendant nor co-defendant testified at trial.
On appeal defendant presents two issues:
I. THE TRIAL COURT ERRED IN SUMMARILY DISMISSING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AT THE OUTSET OF TRIAL WITHOUT A HEARING, THEREBY RELIEVING THE STATE OF ITS BURDEN TO DEMONSTRATE THE REASONABLENESS OF THE WARRANTLESS SEARCH. (NOT RAISED BELOW).
II. DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF TRIAL COURT DISCRETION. (NOT RAISED BELOW).
In its entirety, defendant's pro se "motion to suppress evidence seized without a warrant" states:
PLEASE TAKE NOTICE, that on a date to be set by the Court, the undersigned defendant, Pro-Se, shall make an application to the [trial judge] located at the Administration Building, 595 Newark Avenue, Jersey City, New Jersey 07306, pursuant to New Jersey Rule 3:5-7(a), for an order suppressing evidence that was obtained as a result of an illegal search and seizure in violation of [U.S.] Const. [a]mend. [IV] and [N.J. Const. art. I, ¶ 7].
Pursuant to Rule 3:5-7(f), if a defendant does not file a timely motion to suppress, the defendant is "deemed to have waived any objection . . . to the admission of evidence on the ground that such evidence was unlawfully obtained." The time for the filing of such motions is set in accordance with Rule 3:10-2. R. 3:5-7(a); see Pressler, Current N.J. Court Rules, comment 1.1 on R. 3:5-7 (2010). The date is established at the "arraignment/status conference" when the attorneys must advise the court of any motions they intend to file. R. 3:10-2(a). For "good cause shown" and in "the interest of justice" the court may permit motions beyond the deadline set in the order. Ibid.
The arraignment/status conference in this case was held on June 13, 2007; the order provides for all dispositive motions to be heard "before plea cutoff and execution of the TRIAL MEMO." The attorneys indicated that there were "none" to be heard, and the plea cutoff date was set for August 20, 2007. Defendant's notice of motion is dated November 11, 2007. His attorney mailed it to the Criminal Division Manager by letter dated December 24, 2007. Neither defendant's notice of motion nor the letter of transmittal include any assertion of fact or reference to "good cause" for the untimely filing or the motion's relevance to "the interest of justice."
When the issue of the suppression was raised prior to jury selection, the judge stated the motion would be dismissed because "there is no basis in the motion papers." While a more detailed explanation of the judge's reasons would have been helpful to this court, Rule 1:7-4(a), we cannot conclude that the court erred by declining to take further action. That determination rests on the fact that the untimely notice of motion was filed without any attempt to establish the grounds essential for the court to extend the time. R. 3:10-2(a).
Moreover, because the trial record demonstrates that each step taken by the detective was objectively reasonable under the evolving circumstances, it is apparent that defendant was not prejudiced by the absence of a hearing on his suppression motion. Had a hearing been held, the State would have met its burden of establishing that these warrantless searches and seizures fell within well-recognized exceptions to the warrant requirement. State v. O'Neal, 190 N.J. 601, 611 (2007); id. at 614 (describing the inquiry as "whether the conduct of the law enforcement officer . . . was objectively reasonable") (quoting State v. Bruzzese, 94 N.J. 210, 219 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984)).
The detective did nothing that required justification under the constitutional provisions prohibiting unreasonable search and seizure until after he had seen the following: defendant hand M.R. something from his backpack; M.R. get out of the car; and M.R. drop what defendant had given him upon recognizing the detective. Prior to those observations and at the time those observations were made, the officer had no contact with M.R. or defendant and simply observed what any person present on the street or walking up the driveway would have seen, conduct sufficiently unusual to raise suspicion. Observations of acts done in public made from a lawful vantage point and without any contact with or restraint of the person observed do not infringe upon that person's right to be free from unreasonable search and seizure because the person observed has no expectation of privacy. See State v. Domicz, 188 N.J. 285, 302-03 (2006) (discussing absence of expectation of privacy and other's lawful presence on the route to the door of a home); State v. Nishina, 175 N.J. 502, 510-11 (2003) (commencing analysis of justification required for police contact with a field inquiry, which requires no justification, and discussing the elements of reasonable suspicion sufficient to justify an investigatory stop). "'What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.'" State v. Nikola, 359 N.J. Super. 573, 582 (App. Div. 2003) (quoting United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 2409, 49 L.Ed. 2d 300, 305 (1976)).
Once the detective saw defendant hand M.R. something he had taken from the backpack, M.R. leave the car, and M.R. drop what he held upon recognizing the detective, the detective had probable cause for arrest - knowledge of facts and circumstances sufficient to lead a person of "reasonable caution" to believe that defendant had handed M.R. drugs and had more in the backpack. O'Neal, supra, 190 N.J. at 612 (quoting State v. Moore, 181 N.J. 40, 45-46 (2004)). With probable cause to arrest, the search of defendant's person incident to that arrest was lawful. State v. Dangerfield, 171 N.J. 446, 461 (2002). Finally, because the detective also had reasonable grounds to believe that the backpack contained more drugs, its immediate search and seizure was reasonable given the exigency inherent in the extant circumstances - a backpack containing drugs was inside a car parked in a driveway near the site of suspected drug transactions and, despite a call for backup, there were only two officers present to maintain control of the two suspects who had not yet been secured in a police car. See State v. Pena-Flores, 198 N.J. 6, 30-31 (2009) (finding adequate exigency to justify a warrantless search under similar circumstances).
In short, defendant has not demonstrated that his convictions should be reversed because he was not given an evidentiary hearing on his untimely and vague notice of motion seeking suppression of the evidence. There was no prejudice. See O'Neal, supra, 190 N.J. at 618-19 (considering the evidence relevant to the validity of the search presented at trial in rejecting a claim of ineffective assistance of counsel based on an allegation of deficient representation due to the attorney's failure to file a suppression motion).
There is, however, error in defendant's sentence that must be corrected. In State v. Parker, 335 N.J. Super. 415, 426 (App. Div. 2000), we held that because imposition of concurrent sentences for violating N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-7.1 "does not comport with traditional merger principles," merger is required, unless the evidence establishes that the convictions rest upon separate acts. There was no such evidence here, and the jury was not asked to make any relevant finding. Accordingly, defendant's convictions must be merged and the separate fines, assessments and concurrent sentence for one of those convictions must be vacated.
With the exception of the failure to merge the convictions for violation of N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-7.1, we find no merit in defendant's objections to his sentence.
Accordingly, only brief comment in this written opinion is warranted. R. 2:11-3(e)(2). As noted at the outset of this opinion, the extended term and period of parole ineligibility for N.J.S.A. 2C:35-7 were mandated by N.J.S.A. 2C:43-6(f),*fn1 and the trial court's findings on the aggravating and mitigating factors relevant to the duration of defendant's ten-year sentence are adequately supported by the record and the sentence is not shocking to the judicial conscience. State v. Cassady, 198 N.J. 165, 183-84 (2009).
Affirmed in part and remanded for merger of defendant's convictions and correction of the judgment of conviction.