May 12, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID THOMAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-02-0407.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 2, 2010
Before Judges Wefing, Grall and Messano.
Following the denial of his motion to suppress evidence, defendant David Thomas was tried by a jury and convicted of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). Before sentencing, pursuant to a plea bargain reached with the State, defendant pled guilty to a single count of a second indictment, charging him with burglary, N.J.S.A. 2C:18-2. Under the terms of the agreement, the State would recommend an extended term of seven years imprisonment, with a three and one-half year period of parole ineligibility on the drug charge, and a concurrent sentence of three years on the burglary conviction.
On the day of sentence, defendant sought to withdraw his guilty plea to the burglary charge; the judge denied his motion. Subsequently, the judge denied defendant's motion for a new trial, and sentenced defendant in accordance with the terms of the plea agreement.
On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BEFORE TRIAL, AS THE ARRESTING OFFICER LACKED PROBABLE CAUSE OR REASONABLE SUSPICION TO STOP DEFENDANT AND THE EVIDENCE HE RECOVERED AT THE TIME OF THE ARREST WAS THE FRUIT OF AN ILLEGAL SEARCH AND SEIZURE.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA TO THIRD DEGREE BURGLARY, AS THE MOTION WAS MADE BEFORE SENTENCING AT A TIME WHEN THE MOTION SHOULD HAVE BEEN LIBERALLY GRANTED.
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF CDS AT TRIAL AS THE STATE DID NOT PRESENT SUFFICIENT PROOF TO ESTABLISH THE CHAIN OF CUSTODY, VIOLATING DEFENDANT'S CONFRONTATION RIGHTS UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARA. 10 OF THE NEW JERSEY CONSTITUTION.
THE TRIAL COURT ERRED IN REFUSING TO ADMIT PHOTOGRAPHS TAKEN BY A DEFENSE INVESTIGATOR OF THE AREA WHERE DEFENDANT WAS ARRESTED.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL AS THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
THE TRIAL COURT ERRED IN IMPOSING A DISCRETIONARY EXTENDED TERM SENTENCE[,] AS THE NOTICE OF MOTION TO SEEK AN EXTENDED TERM SENTENCE WAS NOT FILED WITHIN FOURTEEN DAYS OF CONVICTION AS REQUIRED BY R. 3:21-4(e).
We have considered the arguments raised in light of the record and applicable legal standards. We affirm.
We consider the arguments raised in Points I, III, IV and V together since they involve the jury trial on the single count of possession of heroin.
Detective Michael Tracy of the Atlantic City Police Department testified at the pre-trial motion to suppress. Tracy detailed his training and experience in the field of narcotics investigations that included more than 200 narcotic arrests. On January 9, 2007, he and two other plainclothes detectives were conducting an investigation at Kentucky Avenue regarding "hand-to-hand drug transactions." Tracy described the location as a "high crime area where [he] had made numerous arrests for CDS related offense[s]."
He observed defendant engage in conversation with two other males on the opposite side of the street. Defendant crossed the street, approached the two men, subsequently identified as Richard J. Caesar and Barry E. Mansfield, engaged in further conversation, and took currency out of his pocket and gave it to Mansfield.*fn1 Caesar removed something from his pocket, took a portion of it, and handed that to defendant. Defendant walked away from the two men and proceeded into "a little alley."
Believing he had witnessed "a hand-to-hand drug transaction," Tracey followed defendant while the other officers followed the other men. Defendant walked toward a "'trash house[,]' . . . a cinder block type house that contained a dumpster . . . [and] looked around to see if anyone was coming . . . ." Tracy approached defendant within "three to five feet at the max," and identified himself. When he told defendant "to show . . . his hands," Tracy observed defendant drop "three wax folds" to the ground, which the detective seized.
Defendant's investigator, Vincent DeMatteo, testified that he subsequently went to the location of the "trash house," took measurements, and photographed the area. The structure had a roof, was "13 feet three inches in length, by five foot [sic] eleven inches deep," and housed two trash canisters, with a space of approximately two feet between the canisters and the cinder block walls.
Judge Albert J. Garofolo found Tracy's testimony to be credible. He further determined that Tracy reasonably concluded that a drug transaction took place between the defendant and the other two men, and that this "justif[ied] further investigation" by the detective. Lastly, Judge Garofolo concluded that "Tracy did have the articulable basis to approach [defendant] and conduct further investigation, . . . [but that] was . . . unnecessary as a result of the conduct of the defendant himself in discarding the contraband . . . ." The judge denied defendant's motion to suppress.
Defendant argues that the seizure violated his Fourth Amendment rights because Tracy lacked probable cause to arrest him, lacked "reasonable suspicion" to justify an investigatory stop, and that Tracy's conduct "exceeded the bounds of a lawful field inquiry." The argument is insufficient to warrant extensive discussion, Rule 2:11-3(e)(2), and we affirm the denial of the motion to suppress essentially for the reasons expressed by Judge Garofolo. We add these brief comments.
As the Supreme Court has noted,
An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. [State v. Rodriguez, 172 N.J. 117, 127 (2002) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]
See also State v. Nishina, 175 N.J. 502, 511 (2003); State v. Stovall, 170 N.J. 346, 356 (2002). In evaluating the "totality of the circumstances," we "are to give weight to 'the officer's knowledge and experience' as well as 'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise.'" State v. Citarella, 154 N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)).
Applying these principles to the facts at hand, it is clear that Tracy, through his training and experience, and given the nature of the area, possessed sufficient information to form a reasonable and articulable suspicion that criminal activity was afoot. This justified his approach to defendant, and, for reasons of personal safety, his request that defendant show his hands. See State v. Esteves, 93 N.J. 498, 506 (1983) ("Legitimate precaution justifies routine police procedures not designed as pretexts to discover evidence . . . ."). Once defendant discarded the objects, Tracy legally seized them. Defendant's motion to suppress was properly denied.
Defendant next argues that Judge Garofolo committed reversible error by admitting the heroin and State Police lab report as evidence at trial. We disagree.
In addition to the three bags of heroin Tracy recovered, the State sought to introduce thirty other bags that were seized from Caesar and Mansfield. At trial, Tracy identified the three bags of heroin, which he removed from a sealed bag before the jury. He recited the case number assigned to the investigation that was on the bag, as well as other identifying details, and noted a distinctive logo, "Dunkin Donuts," that was stamped on each bag of heroin.
Detective Michael Meyer testified before the jury that he recovered thirty bags of heroin from Caesar. Meyer "field tested" one of those bags and one of the bags recovered by Tracy, and both reacted positively for heroin. Meyer initialed the remaining bags of heroin and placed them in an evidence bag. He then placed that bag, and the one containing the heroin Tracy had seized, in the "CDS bin in the detective bureau." Only one detective had a key to this "bin," and he was charged with taking the evidence to the State Police lab. Meyer opened the bag containing the thirty other bags of heroin at trial, identified them by case number and his initials, and noted the same logo appeared on those bags.
Suzanne Watson, "a forensic scientist assigned to the drug unit" of the State Police, identified the two bags containing the smaller heroin packages as those she tested. She further detailed the police file number, and her laboratory number, which she noted were on the samples and her report. Watson acknowledged on cross-examination that she did not personally receive the evidence at the lab, and had no knowledge of "how [it] w[as] received . . . ."
Defendant moved to exclude the evidence at trial. He argued that there was "a break in the chain of custody" because Watson could not testify "where the material that ended up in the lab came from." He also argued that the State had failed to prove that the evidence allegedly seized from him, and that seized from Caesar, had not been commingled.
After extensive oral argument, Judge Garofolo denied defendant's request, and admitted the evidence, including Watson's lab report. He reasoned that it was "not necessary for the party introducing such evidence to negate every possibility of [substitution] or change [of] condition between the event and the time of trial especially whereas here the custodian ha[d] been an arm of the State." He found no "reasonable probability that . . . tampering ha[d] occurred." Judge Garofolo also found "there [wa]s no evidence in the record which would suggest commingling."
Before us, defendant renews his argument that the State failed "to establish an intact chain of custody" for the evidence. We find the argument to be of insufficient merit to warrant extensive discussion. See R. 2:11-3(e)(2).
"Whether the requisite chain of possession has been sufficiently established to justify admission of the exhibit is a matter committed to the discretion of the trial judge, and his determination will not be overturned in the absence of a clearly mistaken exercise thereof." State v. Brown, 99 N.J. Super. 22, 27 (App. Div.) (citations omitted), certif. denied, 51 N.J. 468 (1968). Any "defect in the chain of custody goes to the weight, not the admissibility, of the evidence introduced." State v. Morton, 155 N.J. 383, 446 (1998) (quotation and citations omitted). Judge Garofolo did not mistakenly exercise his discretion by admitting the evidence at trial.
Defendant called DeMatteo as a witness at trial. He again described the "trash house," its dimensions, and identified a series of photographs he had taken of the area. The import of his testimony was that given the conditions of the two canisters overflowing with trash, and the limited space inside the structure, someone standing "in the rear corner of the trash house" would not be visible to someone standing in front, which was where Tracy testified he was standing when he saw defendant discard the drugs. On cross-examination, however, DeMatteo acknowledged that he took the photos eight months after defendant's arrest, and that he had no idea of the conditions inside the trash house on the date of arrest. Defendant did not proffer the photos as evidence.
After summations and charge, the jury sent out a note that asked, "Can we have the pictures of the trash house?" Defense counsel acknowledged that they were not in evidence, and the State objected to their admission, noting they did not depict the condition of the area on the date of defendant's arrest. Judge Garofolo concluded that the "foundational requirement ha[d] not been established . . . that is, that these photographs . . . accurately depict[ed] the scene at the time of the alleged offense . . . . " He advised the jury that the photos were not in evidence. It returned its verdict thereafter.
Our standard of review requires us to give substantial deference to the trial judge's evidentiary rulings. Morton, supra, 155 N.J. at 453. The decision to reopen a case for the introduction of additional evidence is within the discretion of the trial judge and will not be disturbed unless it amounts to a clear abuse of that discretion. See State v. Wolf, 44 N.J. 176, 191 (1965); State v. Cooper, 10 N.J. 532, 564 (1952).
In this case, we cannot conclude that Judge Garofolo mistakenly exercised his discretion by refusing to admit the photos into evidence. Essential to DeMatteo's lay opinion that someone standing in the rear of the trash house would not be visible to a person outside was the fact that an overflowing amount of trash, as shown in the photos, would obscure vision. There were no facts in evidence to support the conclusion that on the day of defendant's arrest, the trash house was in a similar condition. For example, Tracy was never asked to view the photos and indicate whether they accurately depicted the condition as it existed when he saw defendant discard the drugs. Moreover, DeMatteo described in detail the dimensions of the structure, and defense counsel extensively argued to the jury that Tracy's version of events was not credible given the limited amount of space in the trash house. We find no reason to reverse based upon the judge's refusal to admit the photos into evidence after deliberations had commenced.
Before sentencing, defendant moved for a new trial. Although defendant's brief characterizes the argument as having been that the verdict "was against the weight of the evidence," that point was not raised below, nor, for that matter, is it raised in defendant's appellate brief. Instead, as he did before Judge Garofolo, defendant contends that he was entitled to a new trial because of an "accumulation of errors" that led to "a manifest denial of justice." Those errors are alleged to be the failure of the State to prove chain of custody, the commingling of the evidence, the admission of Meyer's testimony that was based upon a report of another detective, and the failure to admit the photographs into evidence.
For the reasons stated above, we find the arguments to be of insufficient merit to warrant any discussion, and the motion for a new trial was properly denied. See R. 2:11-3(e)(2).*fn2
We consider the issues defendant raises in Points II and VI together. On October 15, 2007, after the jury verdict but before sentencing, defendant pled guilty to a single count of a second indictment charging him with burglary. In return, the State agreed to dismiss the balance of the charges in that indictment, and to recommend a flat three-year sentence, concurrent to the sentence imposed on the drug conviction. In setting forth the agreement, defense counsel noted that the recommended sentence on "the trial matter" was seven years, with a three and one-half year period of parole ineligibility. Defendant acknowledged his understanding of the agreement.
Thereafter, Judge Garofolo reviewed the plea form with defendant, advised him of his rights, and obtained a factual basis for the plea. Defendant admitted that he broke the front glass window of a business with the purpose to "steal something." Defendant further acknowledged that he was pleading guilty "freely and voluntarily."
On February 1, 2008, defendant, represented by different defense counsel, moved to withdraw his guilty plea. Through counsel, he claimed his prior attorney "coached [him] into what he was to say," and that he was not told that he was facing an extended term on the drug charge until the day he pled guilty.
The jury returned its verdict on the drug charge on September 12, 2007. The prosecutor conceded that a formal motion to seek an extended term of imprisonment on that charge was filed sixteen days after the verdict, not within fourteen days as required by Rule 3:21-4(e).*fn3 However, he argued that defendant had failed to establish any basis to withdraw his plea, and that the State would be prejudiced if he was permitted to do so now.
After reviewing the plea transcript, Judge Garofolo concluded that defendant fully understood his rights, provided a factual basis, and entered his plea knowingly and voluntarily. The judge noted, defendant "[wa]s just having second thoughts about the deal . . . ." He denied defendant's motion to withdraw his guilty plea and adjourned sentencing.
On February 6, the parties appeared before Judge Garofolo again. After his motion for a new trial was denied, which we discussed above, defendant argued that the State's failure to move within the time provided by Rule 3:21-4(e) prohibited the imposition of an extended term. The prosecutor noted that defendant was put on notice before trial that he was eligible for an extended term through the "pre-trial memo." He further argued that defendant was on notice because his plea bargain on the burglary charge specifically referenced that an extended term would be recommended on the drug conviction. The prosecutor also explained that prior to the trial commencing, defendant was an active participant in plea negotiations, which, though unsuccessful, clearly made him aware that the State would seek an extended term.
Judge Garofolo rejected any notion that defendant was not on notice of the State's intention to seek an extended term on the drug conviction. He observed that "[a]t all times when this case was conferenced it was heavily negotiated. There was always the threat of [an] extended term held out to . . . defendant." In short, the judge found "no notice problem . . . ." He sentenced defendant in accordance with the plea bargain.
Defendant has reiterated his arguments before us. He contends his motion to withdraw his guilty plea to burglary should have been granted, and that the judge abused his discretion in imposing an extended term on the drug conviction because the State failed to comply with Rule 3:21-4(e). We reject both arguments.
In denying defendant's motion to withdraw his guilty plea, Judge Garofolo did not have the benefit of the Supreme Court's most recent statement on the issue, State v. Slater, 198 N.J. 145 (2009). Nevertheless, applying Slater's holding to the facts of this case, we are firmly convinced that defendant's motion to withdraw his guilty plea was properly denied.
"Consideration of a plea withdrawal request can and should begin with proof that before accepting the plea, the trial court followed the dictates of Rule 3:9-2." Slater, supra, 198 N.J. at 155. The motion is addressed to the trial court's sound discretion, which should be liberally exercised if the motion was made before sentencing, as it was in this case. See id. at 156. However, "[i]n all cases . . . 'the burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits.'" Ibid. (quoting State v. Smullen, 118 N.J. 408, 416 (1990) (in turn quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div. 1974)). The Slater court held
[T]hat trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.
[Slater, supra, 198 N.J. at 157-58.]
Considering those factors in this case, it is clear that defendant failed to carry his burden to justify the withdrawal of his guilty plea. Defendant never asserted a "colorable claim of innocence," pled guilty pursuant to a plea bargain, and his stated reason for withdrawal was that he was "coached" to give a factual basis. That assertion, however, is entirely belied by the plea transcript itself. Defendant's other stated reason for withdrawal, the claim that he did not know he faced an extended term, is also refuted by the plea transcript and his acknowledgement of the proposed sentence.
This last point segues into defendant's final argument regarding the State's failure to strictly comply with Rule 3:21-4(e). That Rule provides,
A motion pursuant to N.J.S.A. 2C:44-3 . . . for the imposition of an extended term of imprisonment, . . . shall be filed with the court by the prosecutor within 14 days of the entry of the defendant's guilty plea or the return of the verdict. Where the defendant is pleading guilty pursuant to a negotiated disposition, the prosecutor shall make the motion at or prior to the plea. If the negotiated disposition includes the recommendation of an extended term, the prosecutor's oral notice and the recordation of the extended term exposure in the plea form completed by defendant and reviewed on the record shall serve as the State's motion. For good cause shown the court may extend the time for filing the motion.
Defendant does not contend that he was ineligible for an extended term; he had amassed nineteen prior indictable convictions. See N.J.S.A. 2C:44-3(a) (defining "[a] persistent offender" who is eligible for an extended term of imprisonment). Rather, he argues that because the Rule mandates that the State's motion be filed within fourteen days of the verdict, and admittedly it was not in this case, Judge Garofolo lacked the authority to impose an extended term.
However, a finding of good cause was implicit in Judge Garofolo's decision to reject defendant's argument. He noted defendant was on notice before trial that he faced an extended term, and, more importantly, that the State had advised him of its intention to seek one, even if defendant pled guilty to the drug charge. Moreover, when defendant pled guilty to the burglary charge, he had already been served with the State's formal motion for an extended term, and the plea bargain he struck with the State at that time fully contemplated the recommendation and imposition of an extended term of seven years. Under the specific circumstances presented, the purpose of the Rule's notice provisions were adequately met, and we find no reason to conclude otherwise.
To the extent defendant argues his seven-year sentence was excessive, we find the argument to be of insufficient merit to warrant any further discussion in this opinion. See R. 2:11-3(e)(2).