August 27, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DUANE BOND, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-04-1426.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 17, 2010
Before Judges Lihotz and Baxter.
Defendant Duane Bond appeals from his May 20, 2008 conviction on charges of second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count one); and two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts three and four). After merging count one into count three, the judge sentenced defendant on counts three and four to concurrent twelve-year terms of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following claims:
I. THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION TO SUPPRESS THE EVIDENCE SEIZED UPON ARREST. THE ARREST WAS NOT SUPPORTED BY PROBABLE CAUSE AND THEREFORE THE SEARCH INCIDENT TO ARREST EXCEPTION TO THE WARRANT REQUIREMENT DID NOT APPLY.
A. The Criteria of the Search Incident to Arrest Exception to the Warrant Requirement Were Not Met.
B. The Court Relied upon Facts Not in Evidence in Reaching [its] Decision in the Suppression Motion.
II. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant filed a pro se letter brief arguing that the judge's finding of the aggravating and mitigating factors was incorrect and the sentence imposed was excessive.
We reject these contentions and affirm defendant's conviction and sentence.
On February 8, 2007, Officers Anthony Farmer and Lester Wilson of the Irvington Police Department received a radio dispatch informing them of an armed robbery in progress at the nearby Victory Pharmacy, located on Springfield Avenue in Irvington, a high-crime area. The dispatch tape, which was received in evidence, includes a warning from the dispatcher that the suspects were believed to have a gun. Because the officers were only three blocks away from the pharmacy at the time they heard the radio transmission, they were able to respond to the scene in time to see two suspects, both wearing ski masks, emerge from the pharmacy moments apart.
The first suspect to emerge from the pharmacy, later identified as defendant, looked back over his shoulder repeatedly as he left. His clothing, particularly the ski mask, partially matched the description provided by the dispatcher. Officer Farmer testified that although it was February and therefore not uncommon for a person to be wearing a ski mask, defendant had been wearing the mask while inside the pharmacy, rather than putting it on as he left. Farmer viewed the wearing of the mask while inside the pharmacy as consistent with criminal behavior.
Officer Farmer exited his police vehicle, identified himself, and ordered defendant to lie face down on the pavement. While Officer Farmer maintained control of defendant, Officer Wilson went toward the pharmacy to stop another masked man who was exiting, whose clothing entirely matched the description provided by the dispatcher.
Defendant, who was still lying on the sidewalk, repeatedly attempted to stand up and became argumentative. As a precaution, Officer Farmer handcuffed him and, after applying the handcuffs, performed an open-hand pat-down as a protective measure and also to search for any contraband.
During this pat-down, Officer Farmer was able to feel a set of handcuffs in defendant's left front pants pocket, which he seized. The officer testified that he seized the handcuffs in defendant's pocket because he feared defendant could reach the handcuffs and use the keys to uncuff himself, thereby becoming a threat to the officers' safety. Officer Farmer was also concerned, in light of the considerable pedestrian traffic on the street at the time, that if defendant were able to reach the handcuffs in his pocket, he might be able to discard them by handing them off to a passerby.
In a comprehensive and well-reasoned written opinion issued after the conclusion of the evidentiary hearing, Judge Casale denied defendant's motion to dismiss, concluding that the warrantless search of defendant's person was valid as a search incident to a lawful arrest. In reaching that conclusion, the judge rejected defendant's claim that the search could not be incident to the arrest because the actual arrest warrant was not issued until the day after the arrest was effectuated, which, according to defendant, violated Rule 3:4-1.
After the denial of his motion to suppress, defendant entered a negotiated plea of guilty to the counts of the indictment we have already described, in return for the dismissal of the remaining counts, which charged him with criminal restraint, pointing a firearm, unlawful possession of a weapon, possession of a firearm for an unlawful purpose, conspiracy to distribute a controlled dangerous substance (CDS), possession of CDS and possession of CDS within 1,000 feet of a school. In return for defendant's pleas of guilty, the State agreed to recommend concurrent twelve-year terms of imprisonment, subject to N.J.S.A. 2C:43-7.2, on counts three and four.
At the time of sentencing, defendant urged the court to find the existence of the following mitigating factors: his conduct neither caused nor threatened serious harm, N.J.S.A. 2C:44-1(b)(1); he did not contemplate his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2); his imprisonment would entail excessive hardship to himself or his dependents, N.J.S.A. 2C:44-1(b)(11); and his cooperation with law enforcement, N.J.S.A. 2C:44-1(b)(12). Defendant also asked the judge to consider that it was his co-defendant, not he, who was in possession of the handgun.
In imposing sentence, Judge Casale observed that although defendant may not have had actual possession of the handgun that was used in the robbery, he had constructive possession of the handgun and knew that his co-defendant intended to use the handgun to accomplish the robbery. The judge found the existence of aggravating factor three, the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), which was based upon defendant's criminal record, including convictions for aggravated manslaughter and distribution of CDS within a school zone; aggravating factor six, the extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and aggravating factor nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9).
The judge also found the existence of the mitigating factors defendant had urged, observing that defendant might not have "fully contemplated all of his conduct" and "[h]is role vis-à-vis his co-defendant was slightly less." The judge commented, however, that he was giving slight weight to the four mitigating factors. The judge also observed that defendant had a substantial prior record that would have supported the imposition of a discretionary extended term as a persistent offender, had the State so moved. After concluding that the aggravating factors outweighed the mitigating factors, the judge imposed the sentence recommended by the State, declining to undercut the plea agreement as defendant had urged.
In Point I, defendant argues that the judge committed reversible error by denying his motion to suppress the handcuffs that were seized from him at the time of his arrest, as the court relied upon facts not in evidence in reaching its decision and the arrest was not supported by probable cause.
In the first of those two claims, defendant maintains that none of the testimony presented at the suppression hearing established that co-defendant, Terrance Turner, was ever found in possession of a gun. Defendant also maintains that the judge stated in his written decision that the handcuffs found in defendant's pocket matched those that were used to restrain one of the two victims, even though no testimony in the record or none of the exhibits supported such a finding.
As the State correctly argues, at the time the judge rendered his written decision, he had before him a transcript of the 9-1-1 dispatch tapes, which had been moved into evidence. The dispatch tapes contained clear references to one of the participants in the robbery having a gun. Although the material on the dispatch tapes was hearsay, hearsay is admissible at a suppression hearing so long as it is relevant and trustworthy. N.J.R.E. 101(a)(2)(E). Nothing has been presented that would cause us to question the reliability of the 9-1-1 tapes.
We turn to defendant's argument that nothing in the record supported the judge's finding that the handcuffs seized from defendant matched those used to restrain one of the victims. We conclude that even if this factual conclusion was incorrect, the judge did not rely upon it as a basis for denying defendant's motion to suppress. Instead, the judge concluded:
The handcuffs found on defendant were not harmless everyday items as [the] defense contends. In fact, they could have been used as a weapon against Officer Farmer or the handcuffs could have been and actually are evidence that may have been easily disposed of down a sewer system or passed off to an accomplice. Therefore, the search and subsequent seizure of the handcuffs and keys is lawful and the evidence will not be suppressed.
Thus, although the judge did make a finding that the handcuffs matched those used in the robbery, he did not rely on that fact in denying defendant's motion to suppress. We therefore do not agree with defendant's contention that the judge's written decision improperly relied upon facts not in evidence.
As to defendant's next claim, that the search was not supported by probable cause, after a careful review of the record we are satisfied that defendant's argument lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Casale in his well-reasoned written opinion of March 26, 2008.
We therefore reject in its entirety the claim defendant advances in Point I.
In Point II, defendant maintains that his sentence was excessive, arguing that the aggravating factors were not supported by the record and the mitigating factors were given insufficient weight. Defendant's pro se supplemental brief essentially reiterates his attorney's arguments concerning the inadequate weight given to the mitigating factors.
These sentencing arguments are entirely devoid of merit. The aggravating factors were amply supported by the record, especially in light of defendant's prior conviction for aggravated manslaughter. As to the mitigating factors, the judge was entitled to give them slight weight, as defendant's participation in an armed robbery certainly had the capacity to cause substantial harm to the two victims who were threatened at gunpoint. Moreover, the sentence imposed was below the midpoint of the first-degree sentencing range, even though, as the judge correctly found, the aggravating factors outweighed the mitigating factors.
Furthermore, the sentence imposed was ordered to be served concurrently to a sentence defendant was presently serving, and the plea agreement resulted in the dismissal of three indictments also pending against defendant, Indictment nos. 07-04-1428, 07-04-1431 and 07-04-1432.
Taking all of these factors into consideration, we are satisfied that the sentence imposed is in accordance with all applicable sentencing guidelines, is based upon a proper finding of the aggravating and mitigating factors and represents a well-considered and proper exercise of the judge's sentencing discretion. Under those circumstances, we have no occasion to disturb the sentence imposed. State v. Roth, 95 N.J. 334, 364-65 (1984).
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