March 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
I BE ORIGINAL ALLAH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-04-0537.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 22, 2010
Before Judges Lisa and Baxter.
Defendant I Be Original Allah appeals from his January 24, 2006 conviction. Pursuant to a non-negotiated plea of guilty, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two); third-degree possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count three); and second-degree possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count four).*fn1 On counts two, three and four, the judge sentenced defendant to concurrent six-year terms of imprisonment, with a three-year period of parole ineligibility on each count. Count one was merged with counts two and four. Appropriate fines and penalties were imposed.
We reject defendant's arguments that: 1) he is entitled to withdraw his guilty plea because the judge did not inform him that the entry of such plea would result in the waiver of his right to challenge on appeal the denial of his pretrial motions to suppress evidence and to reveal the identity of the confidential informant (CI); 2) the trial court erred when it refused to conduct a hearing on whether the search warrant was valid; and 3) the sentence imposed was excessive. We do, however, agree with his claim that the convictions on counts two and three should have been merged with his conviction on count four, and remand for the entry of an amended judgment of conviction (JOC). In all other respects, the conviction and sentence are affirmed.
Lieutenant Paul Schuster has been employed by the New Brunswick Police Department since January 11, 1974 and has participated in more than 5,000 narcotics investigations and arrests. On February 17, 2005, Schuster submitted an affidavit to a judge in support of his request for a warrant authorizing a search of defendant's person, apartment and vehicle. Schuster certified that in the early part of November 2004, he was contacted by a known CI who had, in the past, provided information leading to arrests and convictions for narcotics violations. The CI advised Schuster that defendant, who was currently living in a halfway house operated by the New Jersey Department of Corrections in anticipation of his imminent parole, was "wholesaling" bundles and bricks of heroin packets.*fn2
Schuster was familiar with defendant, having arrested him on drug distribution charges over the past twenty years, with such arrests leading to numerous convictions.
In November 2004, after receiving the CI's information about defendant's illegal activities, Schuster provided the CI with cash to purchase heroin from defendant. Police then immediately established surveillance at both defendant's residence and at the pre-arranged meet location. During that surveillance, defendant was observed by police leaving his apartment and entering a 1993 silver Honda Accord, in which he drove to the pre-arranged meet location. There, police observed him engaging in a hand-to-hand transaction with the CI. Moments later, the informant returned to the location Schuster had specified and turned over a quantity of heroin that police had observed him purchasing from defendant. The substance was field tested and reacted positively for the presence of heroin.
Four other controlled buys involving the same CI were arranged between the first week of December 2004 and early February 2005 with the same results. All five narcotic sales by defendant to the CI were identical, with the exception of one instance in which defendant arrived on foot.
After reviewing the information contained in Schuster's affidavit, a judge issued a warrant authorizing the search of defendant's person, vehicle and apartment. On February 18, 2005, police executed the warrant, finding thirty packets of heroin in the car and on defendant's person. Using the keys that they seized from defendant, police entered his apartment, where they found a small quantity of marijuana, $640 in cash, some bullets and two scales commonly used to weigh narcotics.
In September 2005, defendant filed motions to reveal the identity of the CI, to suppress the evidence that had been seized with the warrant, and to dismiss the indictment. Judge Venezia denied the motion to reveal the informant's identity, reasoning that because the informant's information played only a peripheral role in the issuance of the warrant, disclosure of the informant's identity was not required. In particular, the judge observed that the issuance of the warrant was based upon the probable cause derived from Schuster's observation of defendant engaging in a hand-to-hand transaction with the CI, and not upon the CI's statements to police.
Turning to defendant's motion to suppress, the judge denied the motion, concluding that the warrant was supported by probable cause. In particular, the judge concluded that Schuster's thirty years of experience as a police officer and his participation in more than 5,000 narcotics investigations gave him the ability to determine that the activity he observed between defendant and the CI on those five occasions did indeed constitute the sale of narcotics by defendant.
Next, the judge denied defendant's motion to dismiss counts three and four of the indictment. She reasoned that police were not required to arrest defendant at the first opportunity, which would have been before he entered the school zone and the area near a public park and public housing. On December 1, 2005, the judge entered a confirming order.
On January 23, 2006, which was the day his trial was to have begun, defendant entered an open plea of guilty to the three charges we have described. The prosecutor reserved the right to seek the maximum allowable sentence; however, Judge DeVesa expressed his intention*fn3 to instead sentence defendant to a six-year term of imprisonment on each count, with a three-year period of parole ineligibility. During the plea colloquy, neither the judge nor defense counsel advised defendant that by entering a plea of guilty, he was waiving his right to challenge on appeal the denial of his motions to reveal the identity of the CI and to dismiss counts three and four of the indictment. The judge accepted defendant's pleas of guilty and established a sentencing date approximately two months later.
In the interim, defendant filed a motion to withdraw his guilty plea; however, on the day of sentencing, his attorney advised the judge that defendant did not wish to proceed with the motion. The prosecutor then asked the judge to proceed with the sentencing. The judge granted the State's motion to sentence defendant to a mandatory extended term of imprisonment because of his prior drug distribution convictions. See N.J.S.A. 2C:43-6(f).
After finding that defendant's prior record satisfied the requirement for the imposition of an extended term sentence, the judge found the existence of four aggravating factors: the risk that defendant would commit another offense; the extent of his prior record; the need for deterrence; and the imposition of a fine or penalty, without imposing a term of imprisonment, would be perceived by defendant or others merely as part of the cost of resorting to unlawful activities. The judge found no mitigating factors. She imposed the sentence promised to defendant at the time he entered his guilty plea, which is the same sentence that we have already described.*fn4
On appeal, defendant raises the following claims:
I. BECAUSE THE COURT FAILED TO INFORM [DEFENDANT] WHEN HE ENTERED HIS GUILTY PLEA THAT HE WAS WAIVING HIS RIGHT TO PURSUE ALL OF HIS PRETRIAL MOTIONS ON APPEAL, HE DID NOT ENTER THE PLEA KNOWINGLY AND VOLUNTARILY, AND HE MUST BE ALLOWED TO WITHDRAW THE PLEA.
II. THE COURT ERRED IN FAILING TO CONDUCT A HEARING ON THE SUBJECT OF WHETHER LIEUTENANT SCHUSTER LIED IN HIS AFFIDAVIT IN HIS SEARCH WARRANT APPLICATION. IN ANY EVENT, THE AFFIDAVIT FAILED TO PROVIDE PROBABLE CAUSE TO SEARCH DEFENDANT'S AUTOMOBILE.
III. THE CONVICTIONS FOR POSSESSION OF HEROIN WITH THE INTENT TO DISTRIBUTE AND SUCH POSSESSION IN A SCHOOL ZONE MUST MERGE INTO THE CONVICTION FOR POSSESSION WITH THE INTENT TO DISTRIBUTE WITHIN 500 FEET OF A PUBLIC PARK.
IV. [DEFENDANT'S] SENTENCE SHOULD BE REDUCED FROM SIX TO FIVE YEARS BECAUSE THE POLICE ELEVATED THE POTENTIAL SENTENCE BY CHOOSING NOT TO STOP ALLAH'S VEHICLE UNTIL HE DROVE INTO A SCHOOL ZONE NEAR A PUBLIC PARK.
In Point I, relying on State v. Slater, 198 N.J. 145 (2009), defendant argues that because the court failed to inform him when he entered his guilty plea that we was waiving his right to pursue on appeal the denial of all his pretrial motions, his plea was not entered knowingly and voluntarily and he must be allowed to withdraw it. As we have already noted, on March 24, 2006, defendant unequivocally stated he did not intend to proceed with his motion to withdraw his guilty plea. Having withdrawn that motion in the Law Division, he is not now entitled to seek review of a motion he expressly withdrew from the court's consideration. A motion or issue abandoned in the trial court will be not considered on appeal. See Infante v. Gottesman, 233 N.J. Super. 310, 318 (App. Div. 1989) (holding that a party who consents to the entry of a partial summary judgment against him has forfeited the right to challenge the entry of such order on appeal).
We add only the following comment. Contrary to defendant's assertion in his point heading and in his brief, the entry of a guilty plea does not foreclose a defendant from challenging on appeal the denial of a motion to suppress evidence. Indeed, Rule 3:5-7(d) provides that denial of a motion to suppress evidence "may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty." Defendant has availed himself of the right to challenge the denial of his motion to suppress, as he has raised that issue in Point II.
In any event, we are satisfied that defendant, having withdrawn his Slater motion and having expressly asked the judge not to consider it, is foreclosed from now reversing course and arguing that he should be permitted to withdraw his guilty plea. We thus find no occasion to address the factors the court articulated in Slater, supra, 198 N.J. at 158-62, when a court is faced with a defendant's motion to withdraw a guilty plea. We thus reject the claim defendant advances in Point I.
We turn to Point II, in which defendant maintains that the trial court erred by failing to conduct a hearing to determine the validity of the search warrant. In particular, he maintained that: 1) Lieutenant Schuster "lied" in the affidavit he submitted in support of his request for a search warrant when he asserted that the CI had made five controlled buys from defendant, because nothing in the police reports provided in pretrial discovery referred to the five hand-to-hand transactions; 2) because the affidavit "was based primarily on information provided by a confidential informant," the affidavit should have, but did not, review how that information "had proven to be reliable in the past," thus failing to establish probable cause; 3) Schuster's veracity "was further called into question because of the discrepancy in the State's proofs regarding the execution of the warrant - while the State maintains that the police did not search [defendant's vehicle] until he had driven six blocks from his girlfriend's apartment because Schuster did not immediately recognize [defendant], Schuster's police report contradicted that position"; and 4) whether Schuster "lied" or not, his affidavit is fatally defective because it failed to provide probable cause to search defendant's automobile. Therefore, defendant contends, the judge erred when she refused to grant him an evidentiary hearing to explore these issues.
Where a search is conducted with a warrant, the burden is placed upon the defendant to demonstrate the unlawfulness of the search. State v. Sullivan, 169 N.J. 204, 211 (2001). Searches with a warrant are "cloaked with an aura of prima facie legality" because when the State seeks a search warrant, such effort demonstrates that "the officer making the search was conscious of the citizen's Fourth Amendment security, and that out of concern for it he sought and obtained judicial approval of the propriety of his proposed search." State v. Kasabucki, 52 N.J. 110, 122-23 (1968).
When reviewing a search conducted pursuant to a warrant, a court "should not apply a proof-of-guilt test to affidavits or testimony designed only to reveal probable cause. The quantum of evidence required to show probable cause for a search warrant is less than that necessary for . . . conviction for the crime allegedly involved." Id. at 123. So strong is the prima facie legality of searches conducted with a warrant that in State v. Jones, 308 N.J. Super. 15, 26-32 (App. Div. 1998), we criticized the motion judge for not extending "great deference" to the issuing magistrate's determination of probable cause in issuing the warrant.
Indeed, not until the United States Supreme Court decided Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed. 2d 667, 682 (1978), did the courts of this State permit a defendant to challenge searches conducted with a warrant. See State v. Petillo, 61 N.J. 165, 174-78 (1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1393, 35 L.Ed. 2d 611 (1973). After Franks was decided, the Court held that to even be entitled to a hearing, a defendant must make a "substantial preliminary showing" that the officer seeking the warrant made misleading or false statements in the supporting affidavit. State v. Marshall, 123 N.J. 1, 72 (1991).
In particular, a "'defendant must make a substantial preliminary showing that the affiant, either deliberately or with reckless disregard of the truth, failed to apprise the issuing judge of material information which, had it been included in the affidavit, would have militated against issuance of the search warrant.'" State v. Dispoto, 383 N.J. Super. 205, 216 (App. Div. 2006) (quoting State v. Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987)), aff'd in part and modified in part, 189 N.J. 108 (2007); see also Franks, supra, 438 U.S. at 155-56, 98 S.Ct. at 2676, 57 L.Ed. 2d at 672 (holding that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, . . . a hearing [should] be held at the defendant's request.").
However, if probable cause exists independent of the errant information, the warrant remains valid and no hearing need be conducted. State v. Howery, 80 N.J. 563, 568, cert. denied, 444 U.S. 994, 100 S.Ct. 527, 62 L.Ed. 2d 424 (1979). Additionally, statements alleged to be false "must be material to the extent that when they are excised from the affidavit, that document no longer contains facts sufficient to establish probable cause." Ibid.
Viewed in this light, defendant's argument that he was entitled to an evidentiary hearing is unpersuasive. First, as Judge Venezia properly concluded, the probable cause supporting the issuance of the warrant was not based on the CI's averments, but was instead based upon the five hand-to-hand drug transactions that Schuster observed. Neither the claimed veracity of the informant, nor his purported past reliability, played any role in evaluating whether the five transactions that Schuster observed demonstrated the existence of probable cause. It is beyond dispute that when an officer, based upon his experience and training, observes the furtive exchange of one small item for another among two people who briefly come together and then quickly part, such observation supports the officer's belief that he has witnessed a drug transaction. State v. Moore, 181 N.J. 40, 47 (2004). Thus Schuster's own observations provided the probable cause, without the need to consider the CI's statements.
The probable cause was ample here in light of Schuster's thirty years as a police officer and his participation in 5,000 drug investigations. Moreover, defendant's extensive record of drug distribution convictions unquestionably warrants the conclusion that behavior seeming otherwise innocuous was here quite different and involved the illegal sale of drugs. Ibid. None of Schuster's observations, or the inferences being drawn from them, depend, even in small measure, upon the CI's veracity. For that reason, the judge correctly determined that the lack of information about the CI's past reliability did not require the granting of an evidentiary hearing.
Moreover, defendant's reliance on cases that require a judge to evaluate the informant's veracity, reliability and basis of knowledge, such as Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed. 2d 527, 543 (1983), are inapposite because Illinois v. Gates and its progeny arose in the context of warrantless searches and seizures, which are, unlike searches conducted pursuant to a warrant, deemed "presumptively unreasonable." State v. Elders, 192 N.J. 224, 246 (2007).
Second, Schuster's failure to describe the five controlled buys in a police report is not of sufficient consequence to warrant a hearing. As the Court observed in Howery, only if the statement deemed to be false, when removed from the affidavit, destroys the probable cause that otherwise exists, is a defendant entitled to an evidentiary hearing. Howery, supra, 80 N.J. at 568. Here, as we have already discussed, the affidavit established probable cause based upon Schuster's own observations. Therefore, Schuster's apparent failure to describe the CI's purchases in his police report did not entitle defendant to a hearing. Ibid.
Third, any discrepancy between the actual location where Schuster stopped defendant's car and Schuster's description of that location in his police report is of no significance in the evaluation of the validity of the warrant. Nothing in Schuster's affidavit described the location of the stop, because, as is evident, the stop of defendant's vehicle, and the ensuing search, had not even happened at the time the search warrant was issued. We thus reject the claim defendant advances in Point II.
In Point III, defendant asserts that his convictions in count two for possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b), and in count three for possession of CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7, should have been merged with his conviction in count four for possession of CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1. The State agrees with defendant's contention, as do we. See State v. Parker, 335 N.J. Super. 415, 426 (App. Div. 2000). We remand for amendment of the judgment of conviction to so provide.
Last, in Point IV, defendant maintains that his sentence was excessive and should be reduced. First, he maintains that because police waited to stop his vehicle until he had entered a school zone and an area near a public park, the State impermissibly engaged in conduct that elevated his sentencing exposure. This argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). Suffice it to say, nothing in our jurisprudence supports the proposition that police are obligated to arrest a defendant at the very first moment that his conduct justifies an arrest.
Next, defendant maintains that his sentence on each count, six years imprisonment with a three-year parole ineligibility term, was excessive, and that he should instead have received the minimum sentence of five years imprisonment.
Defendant's prior record includes nine adult indictable convictions, of which four were for drug distribution. The sentence imposed was below the mid-point of the applicable second-degree sentencing range.
We are satisfied that with the exception of aggravating factor eleven,*fn5 the judge's findings regarding aggravating and mitigating factors were well supported by the record, that the judge correctly applied the sentencing principles enunciated in the Code of Criminal Justice, and that the sentence imposed was not excessive or unduly punitive and did not constitute a mistaken exercise of discretion. 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). Defendant's contention that his sentence was excessive is entirely devoid of merit. We thus reject the claim defendant advances in Point IV.
The conviction is affirmed. The matter is remanded to the Law Division for merger of counts two and three with count four.*fn6
In all other respects the sentence is affirmed.
Affirmed as modified, and remanded.