December 24, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER RUSSEL GORDON A/K/A QUADIR TAYLOR, JAMES BUTLER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-09-1122.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2009
Before Judges Lisa and Alvarez.
After his suppression motion was denied, defendant, Christopher Gordon, entered into a plea agreement with the State, by which he would plead guilty to one count of an indictment against him, namely second-degree eluding, N.J.S.A. 2C:29-2(b), in exchange for a recommended sentence of seven years imprisonment, with all other charges in the indictment to be dismissed.*fn1 The plea agreement provided that if defendant failed to appear for sentencing, his plea would remain in effect, but any lawful sentence could be imposed. See State v. Subin, 222 N.J. Super. 227 (App. Div.), certif. denied, 111 N.J. 580 (1988). Defendant failed to appear for sentencing. He was apprehended several months later, and was sentenced to ten years imprisonment with a five-year parole disqualifier. After his motion to withdraw his guilty plea was denied, defendant appealed. He argues:
THE EVIDENCE RECOVERED FROM THE DEFENDANT-APPELLANT'S VEHICLE WAS OBTAINED AS A RESULT OF AN UNLAWFUL SEARCH AND SEIZURE.
THE SENTENCE IMPOSED BY THE COURT WAS GROSSLY EXCESSIVE AS A MATTER OF LAW.
We reject these arguments and affirm.
At about 9:30 p.m. on July 16, 2004, Plainfield Detective Kevin O'Brien received a tip from a confidential informant that a drug transaction was going to take place at about 9:50 p.m. at 240 East 9th Street. O'Brien immediately went to that location and established a surveillance. Other police units were in the area, and O'Brien was in radio contact with those officers. At about 9:50 p.m., a vehicle arrived driven by an individual later identified as defendant. Two other individuals were in the car. The front seat passenger was defendant's brother, Kwantre Gordon. The rear seat passenger was never identified.
After the horn was sounded several times, the rear seat passenger went to the door of the house, after which he immediately returned to the rear seat of the car. An individual came out of the house carrying currency. He leaned into the car, exchanged the currency for a plastic bag, and returned to the house. Based upon his training and experience, O'Brien believed he had just witnessed a drug transaction.
O'Brien communicated by radio with two other officers in the area, and requested that they detain the vehicle. One of those officers, Detective Daniel Staten, pulled his vehicle into the driveway, so that he was facing defendant's vehicle. The other officer, Sergeant Wayne Williams, activated his emergency lights, as did Staten. O'Brien walked toward defendant's vehicle. Defendant began backing out of the driveway until he hit a dumpster. The rear seat passenger then got out of the vehicle and fled on foot. O'Brien chased him on foot but was not able to catch him.
Defendant then drove off and led other officers on a high speed chase. Officers Stillman and Berlinsky located the car defendant was driving parked in a driveway in the 1100 block of West 7th Street. Staten arrived at that location. Searching the area with the use of a flashlight, he found defendant and his brother hiding "a couple yards over" from where the car was found.
Defendant and his brother were placed under arrest. Staten searched the car. He found cocaine, heroin and cash, which he seized. Defendant and his brother were charged with various drug offenses and resisting arrest. Defendant was also charged with eluding.
Defendant and his brother moved to suppress the physical evidence that was seized from the car. At the suppression hearing, the State presented the testimony of O'Brien and Staten. They described the events in the manner we have set forth. Judge Triarsi found that probable cause was established at the moment O'Brien observed the probable drug sale. That probable cause did not dissipate when the occupants of the vehicle fled. On appeal, defendant does not argue that there was no probable cause. The argument is limited to whether there were sufficient exigent circumstances to justify a warrantless search.
Considering the totality of the circumstances, Judge Triarsi found that a sufficient exigency existed. We agree. Although O'Brien received a tip from a confidential informant, until he observed what appeared to be a drug transaction, he did not have probable cause to believe that evidence of a crime would be found in defendant's car. From that point forward, the events unfolded rapidly. One occupant of the car fled on foot. Although he was chased, he was not apprehended and has never been identified. The other occupants fled, leading the police on a high speed chase. The record does not reveal the distance between 240 East 9th Street and the 1100 block of West 7th Street. Presumably, they are in the same general neighborhood in Plainfield. This is significant, because the rear seat passenger was still at large when the vehicle search occurred. It is likely that the unidentified person was fully aware of the presence of drugs in the car, as it appears that he was a participant in the drug transaction. The hour when these events occurred, about 10:00 p.m., is also a significant factor weighing against the practicability of obtaining a warrant.
The record is also not clear as to the precise number of officers present at the scene of the search, their roles, and how long they remained there after defendant and his brother were arrested and secured. At most, there were about siX officers potentially present. However, there were two defendants at the scene and a third participant at large in the area. Thus, the ratio of officers to suspects was not high.
In State v. Pena-Flores, 198 N.J. 6, 29 (2009), the Court set forth circumstances to be considered in the exigent circumstances analysis as follows:
They include, for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passerby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded, and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.
In Pena-Flores, the Court made clear that it was not establishing a new standard by which the exigent circumstances analysis would be determined, but was adhering to the principles laid down in State v. Cooke, 163 N.J. 657 (2000), and other cases dealing with the subject. Id. at 29 n.6. The circumstances here are materially similar to those in Cooke. See also State v. Nishina, 175 N.J. 502, 517-18 (2003) (finding significance in the fact that, as the events occurred in the presence of defendant's companion, that individual and other third parties might well have had knowledge of the presence of drugs in the vehicle that was searched).
We are satisfied from our review of the record that the State presented sufficient evidence of exigent circumstances to justify a warrantless search of defendant's vehicle. Accordingly, we have no occasion to interfere with Judge Triarsi's denial of the suppression motion.
We can dispose of defendant's sentencing argument quite summarily. At the time of his plea, defendant received a full explanation of the consequences of his failure to appear at sentencing, and he acknowledged his understanding of the consequences. His later explanation for failing to appear is that his brother, the co-defendant in this case, was shot and killed and defendant needed to spend time with his family. However, he did not request a postponement in light of those circumstances.
We find no mistaken exercise of discretion in the sentencing judge's refusal to restrict the sentence to that recommended in the plea agreement under these circumstances. Defendant had a very long juvenile and adult history. The judge's findings regarding aggravating and mitigating factors are amply supported by the record, the judge correctly applied the sentencing guidelines in the Criminal Code, and the sentence imposed was not excessive or unduly punitive, and it did not constitute a mistaken exercise of discretion. Accordingly, as a reviewing court, we will not interfere with the sentence imposed. 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).