December 2, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALEXANDRO R. MENDEZ, A/K/A ALEXANDER RAMOS, ALEXANDER M. RAMOS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-12-0861.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2009
Before Judges Messano and LeWinn.
Defendant Alexandro R. Mendez appeals from the judgment of conviction and sentence imposed following his guilty plea to second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2). He raises the following points for our consideration:
THE POLICE VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS: THE STATE FAILED TO PROVE THAT THE WARRANTLESS SEARCH AND SEIZURE COMPLIED WITH THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION.
A. THE STATE FAILED TO PROVE THAT THE SEIZURE OF THE VEHICLE WAS LAWFUL.
B. THE STATE FAILED TO PROVE THAT THE SEIZURE OF THE DEFENDANT, INCLUDING ORDERING HIM OUT OF THE MOTOR VEHICLE, WAS LAWFUL.
THE SENTENCE IS EXCESSIVE
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Judge Darlene J. Pereksta held a pre-trial evidentiary hearing on defendant's motion to suppress. Trenton Police Detective Jason Astbury testified that on the morning of June 17, 2004, he was on patrol in plainclothes and in an unmarked car with Detective Carrigg.*fn1 Astbury was assigned to the Neighborhood Enforcement Stabilization Task Force, whose goal was to "combat all types of crimes" in a "high crime" area as designated by the police director. The officers assigned to the unit were on "aggressive patrol[,]" which included enforcing the motor vehicle laws and city ordinances.
Astbury observed a vehicle that he believed matched a description of one used by a person wanted for narcotics offenses. Defendant was the front-seat passenger in the car. The officers followed the vehicle, called in the license plate, and observed that defendant and the car's driver were not wearing seat belts.
After activating their emergency lights, the officers stopped the vehicle in the parking lot of a delicatessen. Carrigg approached the driver's side and asked for credentials as Astbury approached the passenger side. Astbury observed defendant's fist closed around "a white bag[,]" which, based upon his training and experience, Astbury "suspected to be . . . cocaine." He asked defendant what was in the bag, and he replied, "[I]t's just a little bag."
Astbury ordered defendant out of the vehicle. When he exited, defendant opened his hand and displayed the bag containing the suspected cocaine. Astbury placed him under arrest, and conducted a pat-down search of his person. In defendant's left front pants pocket, the detective found a brown bag containing two larger bags of suspected cocaine, and two smaller bags, similar to the one in defendant's hand. Subsequent testing revealed the contents of the bags to be cocaine weighing approximately fifteen grams.
Defendant testified that he was wearing his seatbelt when the police stopped the vehicle. He claimed that Astbury opened the passenger-side door, told him to unbuckle his seatbelt, and ordered him out of the car. Defendant did not dispute that he had the bags of cocaine in his hand and in his pocket.
In an oral opinion subsequently placed on the record, Judge Pereksta concluded the initial stop of the vehicle was valid because the officers had seen both defendant and the driver not wearing their seat belts, thus violating N.J.S.A. 39:3-76.2f. This provided "an articulable and reasonable suspicion that there was a motor vehicle violation . . . . " Judge Pereksta found Astbury's testimony to be credible as to his observations of the bag clenched in defendant's fist. She held the seizure was lawful, and denied the motion.
Pursuant to a plea bargain reached with the State, defendant thereafter pled guilty to second-degree possession of cocaine with intent to distribute; the remainder of the indictment was dismissed. At the time the plea was entered, defendant was clearly advised, and he acknowledged, that the State would recommend a sentence of ten years imprisonment with a four-year period of parole ineligibility pursuant to the "Brimage guidelines."*fn2
At sentencing, the judge found aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9). Specifically, Judge Pereksta noted defendant's prior criminal record which included two indictable convictions for possession of CDS with intent to distribute, as well as a municipal court conviction for possession of marijuana. She further found that defendant was addicted to drugs, and had opportunities in the past to address the problem but had failed to do so. She found it likely that he would re-offend. Lastly, the judge noted the need to deter defendant and others from violating the law. She found no mitigating factors. In noting the application of the Brimage guidelines that governed the plea, the judge imposed a ten-year sentence with four years of parole ineligibility. This appeal followed.
Defendant first argues the seizure of the cocaine was unlawful because the vehicle in which he was riding did not fit the description of the wanted car. Defendant further contends that he was unlawfully ordered out of the car. In each instance, he argues Astbury's testimony regarding the seatbelt violation, and the observations he made from outside the car, was not credible. We find no merit to these arguments, and affirm the denial of the motion to suppress substantially for the reasons expressed by Judge Pereksta. R. 2:11-3(e)(2). We add only these brief comments.
Our review of the motion judge's factual findings is limited. We are "not permitted to 'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1998) (in turn quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Our only inquiry is "'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" Locurto, supra, 157 N.J. at 472. Here, Judge Pereksta had the opportunity to consider the testimony of Astbury and defendant and to judge the credibility of both. She found Astbury credible, and implicitly rejected defendant's version of events. We find no basis to disturb those findings.
"'It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" Id. at 470 (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). Thus, the officers were justified in stopping defendant's vehicle for the seatbelt violations.
From his vantage point alongside the passenger side of the car, Astbury saw the cocaine in defendant's hand. Thus, he was fully justified in ordering defendant out of the car and seizing the drugs pursuant to the plain view exception to the warrant requirement. See State v. Johnson, 171 N.J. 192, 211-12 (2002); see also State v. Bruzzese, 94 N.J. 210, 236-37 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984). Astbury's subsequent pat-down and seizure of the drugs in defendant's pants was also valid incident to a lawful arrest. State v. Oyenusi, 387 N.J. Super. 146, 153-56 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007). The motion to suppress was therefore properly denied by Judge Pereksta.
As to the sentence imposed, defendant argues that the judge improperly balanced the aggravating and mitigating factors, and improperly made "findings of fact" regarding defendant's risk to re-offend. The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only the following comments.
"[A]dherence to the [Criminal] Code's sentencing scheme triggers limited appellate review." State v. Cassady, 198 N.J. 165, 180 (2009). We "should not substitute [our] judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines, and her findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).
Judge Pereksta's findings as to the appropriate aggravating factors were supported by substantial evidence in the record. She did not engage in any impermissible factfinding. To the extent defendant claims the judge improperly weighed the aggravating factors, or double-counted them, and that she should have found certain mitigating factors, we note that the judge imposed the exact sentence for which defendant bargained. We accord such a sentence "great respect, since a 'presumption of reasonableness . . . attaches to criminal sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61, 71 (App. Div.) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)), certif. denied, 145 N.J. 373 (1996). We find no basis to disturb Judge Pereksta's sentence.