February 11, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN VASQUEZ, A/K/A JUAN VASQUZ, HECTOR QUINONES AND JUAN CABAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-04-1260.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2010
Before Judges Rodríguez and Reisner.
A jury convicted defendant of: third degree possession of a controlled dangerous substance (CDS) in a school zone with intent to distribute, N.J.S.A. 2C:35-7; third degree CDS possession with intent to distribute, N.J.S.A. 2C:35-5a(1); possession of CDS, N.J.S.A. 2C:35-10a(1); and both disorderly persons and fourth degree resisting arrest offenses, N.J.S.A. 2C:29-2a(1) and -2a(2). He was acquitted of third degree resisting arrest. Defendant was sentenced to an extended term of nine years with a four-year parole bar on the merged CDS offenses, and a consecutive four year sentence on the merged resisting arrest offenses. He appeals from the conviction and the sentence. We affirm the conviction but remand for resentencing.
These are the most pertinent facts drawn from the suppression motion. According to Officer Seybert of the Camden Police Department, he was patrolling an area known for "high crime, high violence, [and] open-air drug trafficking," when he saw defendant loitering aimlessly on his bicycle. Defendant was "[j]ust pedaling all around in the area loitering . . . No sense of direction." He observed a vehicle approach defendant and saw him talking to the occupants from the passenger side. Seybert then saw defendant reach into his pocket and, based on his extensive narcotics enforcement experience, believed defendant was "getting ready to make a hand-to-hand transaction" with the occupants of the vehicle.
However, before the transaction was completed, "an area resident . . . yelled, five-oh, which is street terminology for police are in the area. And [defendant] began to pedal off at a high rate of speed" away from Seybert. The police chased him in vehicles and on foot, identifying themselves and shouting at him to stop. As he pursued defendant on foot, Seybert saw him discard a brown paper bag in an alley. After defendant's bicycle struck a police car and defendant fell off and was apprehended, Seybert retrieved the paper bag, which contained fourteen bags of heroin.
In denying the suppression motion, the judge found Seybert to be "credible and believable," and aware of the "high-crime" and "high drug volume" nature of the area based on his knowledge and experience. The judge made the following additional factual findings: Seybert observed a "Hispanic male on a mountain bike with no sense of direction." The male approached a white car, had a conversation, and "appeared to reach into his pocket." The judge found Seybert's intuition, based on defendant initiating a hand-to-hand transaction by reaching into his pocket, to be "mere conjecture. . . . [I]f everything stopped at that point in time, it may be different, either under [State v. Hickman, 335 N.J. Super. 623 (App. Div. 2000)], or under a Terry stop, but it didn't." (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968)).
However, the judge considered the following additional circumstances relevant:
I find as a fact somebody did yell, five-oh, and that changes things. It changes things by raising the fact of what happened thereafter. What happened thereafter is certainly the fact that Mr. Vasquez left the area, there was a pursuit, there was I find as a fact an abandonment of a brown bag and he was ultimately arrested.
And I also find from the credible testimony that [because] of the distance and the short duration after the apprehension that he returned and the bag contained - the brown bag contained 14 bags of heroin, and upon . . . Mr. Vasquez's arrest, there was $60 in cash on him.
The judge found that under the totality of those circumstances, the police were justified in pursuing and arresting defendant. He also concluded that the seizure of the bag of drugs was justified, citing State v. Stott, 171 N.J. 343, 359 (2002), and State v. Farinich, 179 N.J. Super. 1, 5-7 (App. Div. 1981), aff'd o.b., 89 N.J. 378 (1982). The judge concluded that defendant abandoned the drugs, and that "there certainly was unequivocally probable cause to arrest him." At the trial, Seybert gave essentially the same testimony as he did at the suppression hearing. On cross-examination, defense counsel asked Seybert to confirm that "a lot of drug dealing [was] going on in this area" and that it would not be unusual for a drug dealer to store drugs in a trash-strewn alley like the one where Seybert recovered the brown bag. In his summation, defense counsel used this testimony to argue that someone other than defendant had placed the bag of drugs in the alley.
On this appeal, defendant raises the following points for our consideration:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE WARRANTLESS SEARCH AND SEIZURE CONDUCTED BY OFFICER SEYBERT SINCE A REASONABLE AND ARTICULABLE BASIS TO SUSPECT CRIMINAL WRONGDOING DID NOT EXIST.
POINT II: BECAUSE THE STATE FAILED TO PROVE THE OFFENSE OF POSSESSION WITH INTENT TO DISTRIBUTE BEYOND A REASONABLE DOUBT, THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL. (U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARS. 1, 9, 10.
POINT III: THE TESTIMONY OF OFFICER SEYBERT WHEREIN HE TESTIFIED THAT THE AREA WHERE HE OBSERVED DEFENDANT WAS A HIGH CRIME AREA WHERE THERE HAD JUST BEEN A HOMICIDE WAS IRRELEVANT AND SO PREJUDICIAL AS TO DENY DEFENDANT HIS RIGHT TO A FAIR TRIAL. (Not Raised Below).
POINT IV: DEFENDANT'S SENTENCE IS EXCESSIVE.
In a supplemental pro se brief, defendant presents the following point:
POINT I: BASED UPON THE TOTALITY OF THE CIRCUMSTANCES, OFFICERS PRICE AND SEYBERT HAD NO REASONABLE [SUSPICION] TO CONDUCT A TERRY STOP OR ARREST THE DEFENDANT.
His pro se brief also raises a rambling series of arguments without proper point headings; we have nonetheless considered those arguments.
The State concedes that the trial court erred in sentencing defendant to the consecutive four year term, because he was acquitted of third degree resisting arrest. Apparently the error resulted from a mistake in the judgment of conviction, which inaccurately reflected a conviction on the third degree charge. The State agrees that the longest sentence defendant could receive, after merger of the two resisting arrest convictions, would be eighteen months in prison.
Having reviewed the record, we conclude that all of defendant's remaining appellate arguments, including those he asserts in his pro se brief, are without merit. Except as addressed herein, they do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
We conclude that Seybert's initial observations provided him with a reasonable and articulable suspicion that defendant was selling drugs, and hence would have justified him in at least briefly stopping defendant and questioning him. See State v. Pineiro, 181 N.J. 13, 25 (2004). "[A] police officer on patrol, . . . having an articulable suspicion that citizens are engaged in illegal activity, has the right to question the suspects." State v. Tucker, 136 N.J. 158, 167 (1994). Defendant's flight gave Seybert justification to pursue and detain him.
In Tucker, the Court found that mere flight from the police did not justify defendant's detention. However, additional circumstances might have provided justification:
Hence, under circumstances demonstrating particularized suspicion . . . such as a high-crime location or late-evening to early-morning hours, police would have greater latitude to subject a citizen to an investigatory stop. The difficulty with this case is that the sole basis asserted for police action was the youth's flight. [Id. at 168-69.]
Unlike Tucker, where the only alleged ground for suspicion was that defendant ran when the police approached, here Seybert observed defendant riding aimlessly on a bicycle in an area known to the officer as an "open air drug market," approaching a vehicle, and reaching into his pocket as though about to engage in a transaction. Moreover, defendant interrupted the apparent transaction and fled when someone gave an alert ("five-oh") known on the street as a signal that the police were present. Under these circumstances, Seybert reasonably pursued and detained defendant.
Further, "once the totality of the circumstances observed by the police justifiably aroused an 'articulable suspicion' which warranted their stopping and interrogating defendant, he was legally obligated to halt in response to their shouted orders to stop." State v. Doss, 254 N.J. Super. 122, 129 (App. Div.), certif. denied, 130 N.J. 17 (1992). Even if the police had been mistaken about the basis for their investigation, defendant still had a legal obligation to stop in response to their direction. See State v. Williams, 192 N.J. 1, 10-11 (2007); State v. Crawley, 187 N.J. 440, 458-59, cert. denied, 549 U.S. 1078, 127 S.Ct. 740, 166 L.Ed. 2d 563 (2006). We also agree with the trial judge that defendant abandoned the bag of drugs when he threw it away, and the police were entitled to retrieve and open it. See State v. Farinich, supra, 179 N.J. Super. at 5-7.
We likewise find no merit in defendant's contention concerning the lack of expert testimony. On the facts of this case, lay jurors could readily conclude that defendant possessed the fourteen bags of heroin with intent to sell them. They could have reached this conclusion based not only on the quantity of drugs involved, but on circumstantial evidence suggesting that defendant was loitering in the area for the purpose of approaching customers in vehicles and selling to them. See State v. Reyes, 50 N.J. 454, 459 (1967).
We find no plain error arising from the officer's testimony, presented without objection, that the events occurred in a high crime area, rife with drug activity. See R. 2:10-2. This testimony explained why the officer was in the area in the first place and why he would notice defendant loitering on his bike and then approaching a car. Further, instead of objecting to the testimony, the defense made strategic use of it to suggest that someone other than defendant had thrown away the bag of drugs that the police found lying in the alley.
In light of defendant's significant criminal record, including multiple prior CDS convictions, an extended prison term was mandatory. We find no abuse of discretion or other error in the nine year sentence with a four year parole bar imposed for the CDS offenses. State v. Roth, 95 N.J. 334, 365-66 (1984). However, as noted earlier, we remand for the limited purpose of correcting the judgment of conviction to reflect convictions for fourth degree and disorderly persons resisting arrest, and for resentencing on those charges. Because the judge initially sentenced defendant under a misapprehension as to the degree of the resisting arrest convictions, the judge shall also determine whether the resisting arrest offenses of which defendant was actually convicted warrant the imposition of a consecutive sentence.
Affirmed in part, remanded in part.
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