April 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMAR T. TAYLOR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 07-07-1742 and 07-10-2250.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 22, 2010
Before Judges Reisner and Yannotti.
Defendant Lamar T. Taylor appeals from two judgments of conviction (JOC's) dated September 5, 2008, and from the sentence imposed. On this appeal, defendant contends that the trial court erred in denying his motion to suppress evidence, that there was an insufficient factual basis for his guilty plea to several of the charges, and that the aggregate sentence of four years with a two year parole bar was excessive.
Defendant raises these contentions in the following points:
POINT I: THE COURT BELOW FAILED TO ELICIT AN ADEQUATE FACTUAL BASIS. (Not Raised Below) POINT II: THE COURT BELOW ERRED WHEN IT RELIED ON THE EMERGENCY AID EXCEPTION TO THE WARRANT REQUIREMENT, THE PLAIN VIEW DOCTRINE, AND WAIVER BY CONSENT TO DENY DEFENDANT'S MOTION TO SUPPRESS [MARIJUANA] FOUND IN A BAG, WITHIN A BAG, IN A BABY SEAT AND A GUN FOUND UNDER A MATTRESS.
POINT III: THE COURT IMPOSED AN EXCESSIVE SENTENCE THAT THIS COURT SHOULD VACATE AND REMAND FOR RESENTENCING. (Not Raised Below)
Finding no merit in any of these arguments, we affirm.
A. The First Indictment
The JOC's resulted from a plea bargain that resolved two separate indictments stemming from different incidents. Indictment No. 07-07-1742 arose from a May 18, 2007 incident in which an Atlantic City police officer observed defendant riding a bicycle in street traffic. According to the police report, defendant "had a toddler riding on the handlebars" and failed to stop when the officer directed him to do so. Instead defendant rode the bicycle through a red light and violently resisted when the police attempted to arrest him. When they detained him, the police discovered that defendant had also been carrying a baby under his jacket while riding the bicycle.
Defendant was charged with two counts of endangering the welfare of a child, N.J.S.A. 2C:24-4; obstructing the administration of law, N.J.S.A. 2C:29-1; resisting arrest, N.J.S.A. 2C:29-2a(1); and two counts of aggravated assault, N.J.S.A. 2C:12-1b(5). As part of the plea agreement, he pled guilty to two counts of endangering the welfare of a child, resisting arrest, and aggravated assault. The trial judge sentenced defendant to four years in prison on each charge of child endangerment; four years for resisting arrest; and nine months for aggravated assault. All of the sentences were concurrent to each other and concurrent to a four year sentence imposed on the second indictment.
At the plea hearing, the prosecutor recited the facts set forth in the police report, but defendant denied riding with the children in traffic and denied knowing that he was endangering them. At that point the judge refused to accept the plea. After conferring with his attorney, defendant admitted riding a bicycle in Monument Park with a two-year old child and a baby who was "a few months old at the time." Defendant admitted that the baby was in a baby harness zipped inside his jacket and that the young child was "in my arms" while he was riding the bike. At that point, the judge accepted the plea.
On this appeal, defendant argues that there was an insufficient factual basis to support his plea of guilty to endangering the welfare of the children. We disagree.
Before accepting a plea of guilty, the court must ascertain that there is a factual basis for the plea:
The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such plea without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea.
[R. 3:9-2 (emphasis added).]
The court must consider defendant's statements at the plea hearing, but may consider additional material presented at the hearing.
The factual basis for a guilty plea must obviously include defendant's admission of guilt of the crime or the acknowledgement of facts constituting the essential elements of the crime. However, the defendant's admission or acknowledgment may be understood in light of all surrounding circumstances. See State v. Heitzman, 209 N.J. Super. 617, 620-21 (App. Div. 1986) (on defendant's motion to set aside his guilty plea, the court can look beyond defendant's admissions); State v. Stackhouse, 194 N.J. Super. 371, 375-76 (App. Div. 1984). [State v. Sainz, 107 N.J. 283, 293 (1987).]
The issue here is whether the information presented at the plea hearing, including defendant's statements, were sufficient to meet the following standard set forth in the endangerment statute: "causes the child harm that would make the child an abused or neglected child as defined in [N.J.S.A.] 9:6-1, [N.J.S.A.] 9:6-3 and... [N.J.S.A. 9:6-8.21]." N.J.S.A. 2C:24-4a. Relying on State v. Overton, 357 N.J. Super. 387 (App. Div.), certif. denied, 177 N.J. 219 (2003), defendant contends that there was insufficient evidence that he acted knowingly in the sense of being aware that his conduct was "practically certain" to endanger the children's welfare. Id. at 393.
In this case, it is not necessary to show that defendant caused actual physical harm to the children. State v. M.L., 253 N.J. Super. 13, 31 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992). Unlike the defendant in Overton, defendant was not unconscious or sleepwalking. He knew he had a small child and an infant on the bicycle with him. Although he contended he did not ride in "traffic" he did not deny, as recited in the police report, that he fled from the police with the children on the bicycle. Either or both children could have suffered serious injuries as a result of defendant's conduct. See N.J.S.A. 9:6-8.21c(2). We find no error in the child endangerment conviction.
Nor do we find any error in the concurrent four year sentences imposed for these third degree crimes. See State v. Roth, 95 N.J. 334, 365-66 (1984).
B. The Second Indictment
Indictment No. 07-10-2250 arose from an incident on August 13, 2007, in which the Atlantic City police responded to a 911 call reporting a "break in" in progress at a house on Ventnor Avenue. According to Officer Lisa Kaplan and Sergeant Rudy Lushina, when the police arrived they "could hear children inside crying." Receiving no response when they knocked on the door, the police parked a police vehicle next to the house, climbed on top of it and entered the house through a second floor window.*fn1 In the apartment, they saw defendant, who grabbed a small child and started running away. After apprehending defendant, the police found an injured woman who was crying hysterically.
When she calmed down, the woman told them that she had let defendant, who was her boyfriend, into her apartment, but they had gotten into an argument and he "beat her up." The victim also told the police that defendant was "known to carry a gun."
She showed them the location of the gun, hidden beneath a mattress. After finding the gun, the police requested and obtained the victim's written consent to search the entire apartment. During that search they found a bag of drugs hidden inside a child's car seat. According to Detective Petinga, when the police were bringing defendant into the police station after arresting him, they found a handcuff key in his pocket.
According to defendant, he was sleeping when the police burst into the house. He denied assaulting the victim. He claimed that he accidentally bumped into her earlier in the evening and she hit her eye on a corner of the dresser.
Based on this evidence the trial judge denied defendant's motion to suppress. He found defendant was not a credible witness, and he found the police witnesses credible. He concluded that they properly responded to the 911 call, and the crying and screaming woman and children, by entering the house through the window. "This was a potentially catastrophic situation where children or a woman were in harm's way." He concluded that the warrantless entry was justified under the emergency aid doctrine.
The judge also concluded that the marijuana was found during a consent search, and that defendant was lawfully arrested. Viewing a photograph of the victim that had been introduced in evidence, the judge found that she had suffered "significant injuries. Her face is bloodied... her right eye is half closed and bruised and is cut... in the eye lid as well as the bridge of her nose."
After the court denied the suppression motion, defendant pled guilty to third degree aggravated assault, N.J.S.A. 2C:12-1b(7); second degree committing a drug offense while possessing a firearm, N.J.S.A. 2C:39-4.1; and third degree possession of escape implements, N.J.S.A. 2C:29-6.
At the plea hearing, defendant first pled guilty to assault by causing significant bodily injury. He admitted that he "bump[ed] the victim from behind that cause[d] her to have damage to her eye." He stated that the eye was bleeding but he "didn't get a chance to really look at it." The judge then asked the prosecutor to describe the injury to the victim's eye. She responded that the eye ended up hitting a corner of the dresser and she had some damage to the eye itself. She had bruising and swelling and she was bleeding. I do believe she had to see a specialist at Penn. She did tell me all of her vision was restored. There was no permanent loss of vision from the injury so there wasn't a second degree charge.
The prosecutor additionally stated that she believed the victim sustained a "temporary vision impairment... or injury."
Defendant did not deny or contradict anything the prosecutor said.
Defendant then admitted to possession of the handgun. However, he initially stated that the thirty-eight bags of marijuana the police found were for his personal use. After the judge indicated that was a factually insufficient plea, defendant also admitted that he "would share it with a friend." Defendant further admitted being in possession of a handcuff key.
On this appeal, defendant claims that there were insufficient factual bases to support the convictions for aggravated assault, possession of a handgun while committing a drug offense, and possession of an escape implement. Defendant first contends that there is an insufficient factual basis to support a conviction for aggravated assault by causing or attempting to cause significant bodily injury, N.J.S.A. 2C:12-1b(7). This offense refers to "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1d.
We conclude that the facts before the judge sufficed to support the guilty plea. Defendant admitted that he caused injury to the victim's eye and that the eye was bleeding. He did not deny the prosecutor's statement that the victim had some damage to the eye, for which she needed to see a specialist to "restore" her vision. Finally, the same judge who accepted the plea had also presided over the suppression hearing, in which the State introduced in evidence a photograph depicting the victim's bloody, half-closed eye. We conclude that there was enough evidence on which to base a finding that the victim suffered a "temporary" loss of vision.
We likewise find no merit in defendant's challenge to his plea to a violation of N.J.S.A. 2C:39-4.1a, possession of a firearm while in the course of committing one of several listed narcotics offenses. His admission that he possessed the thirty-eight bags of marijuana in part to share with others is sufficient to establish possession with intent to distribute, N.J.S.A. 2C:35-5. See State v. Heitzman, 209 N.J. Super. 617, 620-21 (App. Div. 1986), aff'd o.b., 107 N.J. 603 (1987). The amount of drugs he possessed likewise supports that conclusion. Id. at 621. Keeping the firearm in the apartment where defendant had his drug stash was sufficient to support a conviction for possession of a handgun while committing the drug offense. See State v. Spivey, 179 N.J. 229, 237-40 (2004).
We also conclude that there was sufficient evidence to support the plea to possession of an escape implement.
Defendant had a handcuff key in his possession while the police were taking him into the municipal public safety building. The police found the key while searching defendant in the outer area of the building, known as the "man trap." That is sufficient to establish a violation of N.J.S.A. 2C:29-6a, prohibiting a person from "introduce[ing] within... a detention facility... any weapon, tool, instrument, document or other thing which may be useful for escape."
We likewise find no merit in defendant's argument concerning the suppression motion. The trial judge's factual findings are supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 474 (1999). We agree with the trial judge that the police acted properly in entering the house under the emergency aid doctrine. See State v. Frankel, 179 N.J. 586, 598-99, cert. denied, 543 U.S. 876, 125 S.Ct. 108, 160 L.Ed. 2d 128 (2004). Once the police were in the house, the victim alerted them to the presence of the gun and led them to it, and they then undertook a further search pursuant to her voluntary written consent. See State v. Maristany, 133 N.J. 299, 305 (1993). Unlike State v. Younger, 305 N.J. Super. 250 (App. Div. 1997), on which defendant relies, the victim's consent was not limited to a search for weapons. Id. at 257. Moreover, the victim was the tenant of the apartment, and defendant did not live there. Therefore, unlike Younger, there was no issue here as to the police searching defendant's portion of the premises. Id. at 257-58.
Finally, we find no error in the sentence. Defendant obtained an extremely favorable plea bargain, which enabled him to resolve a large number of serious charges. The aggregate sentence of four years in prison with two years of parole ineligibility was not an abuse of the trial court's discretion. Roth, supra, 95 N.J. at 365-66.