October 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NORMA JIMENEZ, A/K/A VILMA VELIZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-06-0872.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Fuentes and Simonelli.
A jury convicted defendant of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (count one); first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(1) (count two); and second-degree possession of CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three). The trial judge merged count one with count two and sentenced defendant to a fifteen-year term of imprisonment with a five-year period of parole ineligibility, and to a concurrent seven-year term of imprisonment on count three. The judge also imposed the appropriate assessments, penalties and fees, and suspended defendant's driver's license for six months.
On appeal, defendant raises the following contentions:
POINT I - THE FAILURE OF THE TRIAL COURT TO ORDER THE DISCLOSURE OF THE CONFIDENTIAL INFORMANT DENIED DEFENDANT A FAIR TRIAL. POINT II - IT WAS ERROR NOT TO SUPPRESS THE EVIDENCE SEIZED FROM DEFENDANT AFTER AN UNLAWFUL ARREST WITHOUT PROBABLE CAUSE.
POINT III - DEFENDANT MARTINEZ'S EAVESDROPPING ON DEFENDANT'S TELEPHONE CONVERSATION IN THE HOLDING CELL IS TANTAMOUNT TO COVERT COERCION IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT. (NOT EXPRESSLY RAISED BELOW EXCEPT THAT IF THE ARREST WAS ILLEGAL, THIS ALLEGED STATEMENT WOULD BE POISONOUS FRUIT)
POINT IV - DEFENDANT'S SENTENCE WAS EXCESSIVE.
The following facts are summarized from the record. Detective Jose Martinez of the Union County Prosecutor's Office, a thirteen year veteran of the Narcotics Strike Force, testified that at approximately 4:00 p.m. on November 1, 2001, he received a tip from a confidential informant whose previous tip to him led to the seizure of cocaine, thousands of dollars in currency and the arrest and conviction of more than one individual. The informant disclosed that a cocaine transaction would occur that day at approximately 6:30 p.m. at a specific residence in Plainfield, later identified as defendant's residence. The informant indicated that a Hispanic male driving a black pickup truck would arrive at the residence, enter the driveway and deliver cocaine to a twenty-seven year old, dark-haired Hispanic female named "Jenny."
After receiving this tip, Detective Martinez, Sergeant Steven Siegel of the Narcotics Strike Force, and Sergeant Wayne Williams, Detective Bell and Detective Robert Henderson of the Plainfield Police Department Narcotics Unit, set up surveillance near defendant's residence to corroborate the confidential informant's information.
Detective Martinez testified that the officers arrived at the scene at approximately 5:30 p.m. in three unmarked police vehicles. Two vehicles parked at opposite corners of the residence while Detective Martinez drove the third vehicle back and forth in front of the residence. At approximately 6:00 p.m., the detective saw a Hispanic woman, later identified as defendant, approach an African-American man in front of her residence and engage in conversation. The African-American man "was looking back and forth, walking back and forth and looking around as if waiting for somebody." Defendant walked back toward the rear of the driveway, and the African-American man continued to walk back and forth. Defendant then walked from the driveway to the front of her residence and was "looking back and forth as if she was waiting for somebody."
According to Detective Martine, at approximately 6:45 p.m., he saw a black pickup truck arrive at defendant's residence and pull into the driveway. He then saw a second Hispanic woman standing outside the pickup truck speaking with defendant and the African-American male. Defendant then walked toward the back of her residence carrying a brown plastic bag, which she did not have in her possession before this interaction. The second Hispanic woman then climbed into the passenger side of the pickup truck and the truck departed the scene, as did the African-American man.
Based upon his training, education and experience, Detective Martinez concluded that the informant's information had been corroborated and that a narcotics transaction had occurred. He radioed Sergeant Siegel, who then directed the other officers to go to the back of defendant's residence to detain her. Detective Lynch arrived at the scene and saw defendant in her backyard with her back toward him and her arms up in the air against a wooden stockade fence.
Upon arriving at the scene, Detective Martinez saw defendant in her backyard by the fence with other officers; however, she did not have the brown plastic bag in her possession and a search of the backyard did not reveal it. Detective Martinez then went to the property next door to defendant's residence. The property owner advised the detective that defendant had been on his property by a tree next to the fence. With the owner's consent, the detective searched the area by the tree and found a black plastic bag containing two boxes of plastic baggies, a strainer, a pair of scissors, a digital scale and a white powdery substance in a clear plastic bag, which he believed was cocaine. The substance was later determined to be cocaine.
Detective Martinez then read defendant her Miranda rights in Spanish. Thereafter, the officers escorted defendant into her residence, where Detective Martinez again advised defendant of her Miranda rights utilizing a Miranda form translated into Spanish. Defendant read the form aloud in Spanish, initialed and acknowledged her understanding of each right, and signed the waiver. Defendant also signed a permission to search form translated into Spanish, indicating her consent to the search of her bedroom. The search revealed nothing incriminating.
Sergeant Siegel searched the property next door on the other side of defendant's residence with the property owner's consent. His search revealed a brown plastic bag hanging over the stockade fence on the neighbor's side near the area defendant was standing when the officers first encountered her. The bag contained a rectangular shaped brick object sealed in duct tape with a cut V in the middle, containing a white powdery substance which the officer believed was cocaine. The substance was later determined to be a kilo of cocaine.
Defendant was arrested, transported to the Plainfield Police Department and placed into a holding cell for processing. Defendant made a telephone call from the holding cell. Detective Martinez, who had come into the processing area to pick up a booking sheet, heard defendant say in Spanish to the person to whom she was speaking that "I got arrested on a deal where I was going to make $500. I need money to get bailed out."
Defendant contends that the trial judge's denial of her motion to disclose the confidential informant or for an in camera voir dire denied her a fair trial. She argues the existence of a reasonable belief that the informant could identify the Black male, the driver of the pickup truck and the second Hispanic female, and that these individuals may provide information supporting an entrapment defense.
In denying defendant's motion, the trial judge concluded that it was mere speculation that the informant possessed knowledge of the identity of the other individuals or could provide additional information essential to defendant's defense. We review the denial of defendant's motion under an abuse of discretion standard. State v. Milligan, 71 N.J. 373, 384 (1976) (citing Roviaro v. United States, 353 U.S. 53, 56, 61 n.9, 77 S.Ct. 623, 628 n.9, 1 L.Ed. 2d 639, 642, 645 n.9 (1957).
"Under most circumstances,... an informer's identity will be kept secret and will not be revealed for insignificant or transient reasons." State v. Foreshaw, 245 N.J. Super. 166, 181 (App. Div.), certif. denied, 126 N.J. 327 (1991) (citations omitted). Disclosure is required "where the defendant can show that the testimony of the informer is essential to preparing his defense or to assuring a fair determination of the issues." State v. Milligan, 71 N.J. 373, 390 (1976). To satisfy this requirement, the defendant must provide "[s]omething more than speculation[,]" and courts "should not honor frivolous demands for information on unsubstantiated allegations of need." Id. at 393.
Disclosure is also required where the identity of the informer has already been otherwise disclosed, N.J.R.E. 516, or "where the informer is an active participant in the crime for which the defendant is prosecuted, where a defense of entrapment seems reasonably plausible, or where disclosure is mandated by fundamental principles of fairness of the accused." Foreshaw, supra, 245 N.J. Super. at 180-81 (citations omitted). However, "'absent a strong showing of need, courts generally deny disclosure where the informer plays only a marginal role, such as providing information or 'tips' to the police or participating in the preliminary stages of a criminal investigation.'" Id. at 181 (quoting Milligan, supra, 71 N.J. at 387-89 (footnote omitted)).
Based upon our review of the record, we are satisfied that defendant failed to justify disclosure of the identity of the confidential informant. Defendant's claim that disclosure is essential to assure a fair determination of the issues is grounded on her speculation that the informant knew the identity of the other individuals Detective Martinez saw. To be sure, the informant never mentioned these individuals in his call to Detective Martinez.
Additionally, there is no evidence that the informant participated in defendant's criminal activity, contacted defendant, accompanied the police, or participated in the search. The informant merely played a marginal role by providing information about his or her personal knowledge of defendant's criminal activity. Milligan, supra, 71 N.J. at 387; Foreshaw, supra, 245 N.J. Super. at 181 (citations omitted).
Defendant next contends that the judge erred in denying her motion to suppress evidence, arguing that the informant's tip did not establish probable cause for the police to arrest her and search her residence. The trial judge denied the motion, concluding that an anticipatory warrant was not required because the transaction was not a controlled delivery, and because the confidential informant's tip alone did not establish probable cause.*fn1 The judge also found the confidential informant reliable and concluded that the information he or she provided, coupled with the police officers' observations at defendant's residence, established probable cause to arrest defendant and search her residence. Citing State v. Burgos, 185 N.J. Super. 424 (App. Div. 1982), the judge further concluded that defendant had abandoned the narcotics for search and seizure purposes.
Our review of a trial judge's findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We give great deference to the trial judge's factual findings and will not "engage in an independent assessment of the evidence as if [we] were the court of first instance. Id. at 471. We also give deference to the trial judge's credibility determinations. Id. at 474; Johnson, supra, 42 N.J. at 161.
In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (citing Locurto, supra, 157 N.J. at 474); see also State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We will reverse only if we are convinced that those findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting Johnson, supra, 42 N.J. 146, at 162). "In those circumstances solely should [we] 'appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162). Applying these standards, we address defendant's contention.
We first emphasize that the police did not find the narcotics in defendant's residence. Rather, they found them in the next-door neighbors' yards. Because the neighbors voluntarily consented to the search of their property, the search was valid. State v. Maristany, 133 N.J. 299, 305 (1993).
Additionally, "[f]or purposes of search-and-seizure analysis," a defendant who abandons property "no longer retain[s] a reasonable expectation of privacy with regard to it at the time of the search." State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006) (citations omitted). "In the context of the Fourth Amendment a defendant 'abandons' property when he voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question[.]" State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981) (citing United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973)), certif. denied, 88 N.J. 497 (1981), aff'd o.b., 89 N.J. 378 (1982); see also Carroll, supra, 386 N.J. Super. at 160; State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999).
The evidence in the record establishes that defendant abandoned the narcotics before the search of the neighbors' property. Thus, she had no expectation of privacy in the narcotics, making the search and seizure reasonable within the limits of the Fourth Amendment. Burgos, supra, 185 N.J. Super. at 427. Nevertheless, we extend our inquiry to consider the merits of defendant's contention that the police lacked probable cause to arrest her and search her residence.
Under the Fourth Amendment, warrantless searches are per se unreasonable and thus presumptively invalid. Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 1716, (2009) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed. 2d 576, 585 (1967)); State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S.Ct. 108, 160 L.Ed. 2d 128 (2004). However, courts recognize certain exceptions to the warrant requirement. One such exception occurs when police officers search incident to a lawful arrest founded on probable cause. State v. Eckel, 185 N.J. 523, 528-37 (2006) (detailing the history of New Jersey's treatment of the "search incident to lawful arrest" warrant exception).
Probable cause exists when there is a well-grounded belief that a crime was or is being committed. State v. Nishina, 175 N.J. 502, 515 (2003); State v. Johnson, 171 N.J. 192, 214 (2003); State v. Sullivan, 169 N.J. 204, 211 (2001). When evaluating whether probable cause exists, courts employ a "totality of the circumstances" test, meaning that a the trial judge must make "'a practical, common-sense decision whether... there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Johnson, supra, 171 N.J. at 214 (2002) (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)). In making this determination, the trial judge must look to all the evidence, including the veracity and basis of knowledge of an informant supplying hearsay information. State v. Smith, 155 N.J. 83, 93, cert. denied, 525 U.S. 1003, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1998).
We are satisfied that the record contains ample credible evidence establishing the reliability of the confidential informant and the accuracy of the information provided. This, along with evidence of the police officers' observations, which corroborated the information provided, established sufficient probable cause to arrest defendant and search her premises.
Defendant contends for the first time on appeal that Detective Martinez's eavesdropping on her telephone conversation constitutes entrapping her into an admission of guilt. This contention is subject to review under the "plain error" standard. Under this standard, we will not reverse a trial court's error unless it is shown that the error is "clearly capable of producing an unjust result." R. 2:10-2; see State v. Daniels, 182 N.J. 80, 95 (2004) (citing State v. Macon, 57 N.J. 325, 333 (1971)).
Admission of a confession violates a defendant's due process rights when obtained by police from the defendant involuntarily. Withrow v. Williams, 507 U.S. 680, 688-89, 113 S.Ct. 1745, 1751, 123 L.Ed. 2d 407, 417 (1993); Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed. 2d 473, 484 (1986). The court must look to the totality of the circumstances in order to determine if a confession was obtained by the police voluntarily. Connelly, supra, 479 U.S. at 163-67. However, without "police conduct casually related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law." Id. at 164; see also State v. Smith, 307 N.J. Super. 1, 15 (App. Div. 1997).
The evidence reveals that Detective Martinez was not in the holding cell area to obtain defendant's confession. Indeed, defendant admits in her merits brief that the detective's presence in the holding cell area during her telephone conversation was "by coincidence." The record is devoid of any evidence that defendant's statement during her telephone conversation resulted from police action.
We now address defendant's challenge to her sentence. Our role in reviewing a sentence imposed by a trial judge is limited. We only determine:
(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience. [State v. Megargel, 143 N.J. 484, 493 (1996) (citing State v. Roth, 95 N.J. 334, 363-365 (1984)).]
It is well settled that we "may not substitute [our] judgment for that of the trial court," State v. Johnson, 118 N.J. 10, 15 (1990), but may modify a defendant's sentence when we are convinced the sentencing judge was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990). We may not reach this conclusion unless "the facts of th[e] case makes the sentence clearly unreasonable so as to shock the judicial conscience." Ibid. (quoting Roth, supra, 95 N.J. at 364-65); see also State v. Cassady, 198 N.J. 165, 181 (2009).
In sentencing, consideration of aggravating and mitigating factors must be part of the deliberative process, provided such factors are supported by credible evidence. State v. Dalziel, 182 N.J. 494, 505 (2005); accord State v. Cassady, 198 N.J. 165, 180 (2008) (citing State v. O'Donnell, 117 N.J. 210, 215-16 (1989)). Indeed, "a trial judge is required to consider all of the aggravating and mitigating factors and to find those supported by the evidence." Dalziel, supra, 182 N.J. at 505. Error by the trial court in determining the existence of any aggravating or mitigating factors will "nullif[y] the weight accorded to such factors and materially alter  the calculus in the ensuing balancing of aggravating and mitigating factors." State v. Jarbath, 114 N.J. 394, 406 (1989).
Defendant does not challenge the judge's findings of aggravating factors N.J.S.A. 2C:44-1a(3) (the risk that the defendant will commit another offense), N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law) and N.J.S.A. 2C:44-1a(11) (the imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices). Rather, she contends that the trial judge should have afforded more weight to mitigating factor N.J.S.A. 2C:44-1b(7) because she was twenty-seven years old at the time of the crime and had no history of prior delinquency or criminal activity. Defendant also contends that the judge should have found mitigating factor N.J.S.A. 2C:44-1b(11) because her imprisonment would entail excessive hardship to her five children.
Although at sentencing defendant stated that she has five children, she offered no evidence supporting mitigating factor 11. To be sure, defendant's Presentence Report indicates that she does not have primary care of the children and does not support them.
Additionally, the record does not support affording more weight to mitigating factor 7. Although defendant had no prior criminal history, she was convicted of a first-degree crime involving the intent to distribute a very large amount of cocaine. Her sentence is in the mid-range for a first-degree crime and is not excessive.