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State v. McCleod

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 22, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL D. MCCLEOD, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-05-0408.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 5, 2010

Before Judges Skillman and Yannotti.

Defendant Michael McCleod was tried before a jury and found guilty of third-degree distribution of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and third-degree conspiracy to distribute a CDS, contrary to N.J.S.A. 2C:5-2. The trial court also found defendant guilty of possession of marijuana in an amount less that fifty grams, a disorderly persons offense, contrary to N.J.S.A. 2C:35-10(a)(4). Defendant appeals from his conviction and the sentences imposed. For the reasons that follow, we affirm.

At the trial, the State presented evidence establishing that in March 2006, detectives and officers in the Somerset County Prosecutor's Office (SCPO) were engaged in a narcotics investigation of co-defendant Kristina Gwiazdowski. On March 24, 2006, an undercover officer arranged to purchase eleven bags of cocaine from Gwiazdowski for $600. The officer had purchased drugs from Gwiazdowski on two prior occasions. Gwiazdowski and her friend, Erin Santora (Santora), met the officer at a convenience store in Somerville.

Gwiazdowski and Santora then drove to another location in Somerville, where the officer provided Gwiazdowski with $600 in marked currency he had obtained from the SCPO. Gwiazdowski and Santora went to the house on Southside Avenue in Somerville where defendant resided. They entered through the side door and went down into the basement, where Santora introduced Gwiazdowski to defendant. Gwiazdowski gave defendant money, and he gave her the cocaine. Gwiazdowski and Santora left the house, and the police apprehended them as they were driving away.

The officers thereafter applied to the Law Division for a search warrant. The court issued a warrant allowing the officers to search the house on Southside Avenue, with the exception of the bedroom of the woman who owned the house. The officers then executed the warrant. They found defendant in the basement, where his bedroom was located. He was in possession of some of the marked currency that the undercover officer had provided to Gwiazdowski. The officers also found marijuana on defendant's person and in a dresser in his bedroom.

At sentencing, the trial court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f). The court merged the indictable offenses and sentenced defendant to eight years of incarceration with a three-year period of parole ineligibility. The court imposed appropriate fines and penalties. The court also imposed a $250 fine for the disorderly persons offense. This appeal followed.

Defendant raises the following issues for our consideration:

I. THE SEARCH WARRANT WAS CONSTITUTIONALLY DEFECTIVE

a. BECAUSE THE STATE FAILED TO ESTABLISH A SUBSTANTIAL BASIS FOR A FINDING OF PROBABLE CAUSE IN ITS APPLICATION FOR THE SEARCH WARRANT, IT WAS HARMFUL ERROR TO DENY DEFENDANT'S MOTION TO SUPPRESS (Raised Below)

b. BECAUSE THE SEARCH WARRANT FAILED TO TREAT A SINGLE UNIT IN A MULTIPLE UNIT STRUCTURE AS A SEPARATE RESIDENCE, THE WARRANT WAS CONSTITUTIONALLY DEFECTIVE AND IT WAS PLAIN ERROR TO DENY DEFENDANT'S MOTION TO SUPPRESS (Not Raised Below)

II. THE TRIAL COURT ERRED IN APPLYING THE PROTECTIONS OF [STATE v. BRUNSON, 132 N.J. 377 (1993)] TO [THE] STATE'S WITNESS [K]RISTINA GWIAZDOWSKI (Raised Below)

III. THE SENTENCE IS MANIFESTLY EXCESSIVE

IV. BECAUSE THE PROSECUTOR MADE UNFAIR REMARKS DURING SUMMATION AND THE TRIAL COURT FAILED TO ISSUE ANY CURATIVE INSTRUCTIONS, DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL[] (Not Raised Below)

a. THE PROSECUTOR IMPROPERLY BOLSTERED THE TESTIMONY OF CO-DEFENDANT [GWIAZDOWSKI]

b. THE PROSECUTOR INTRODUCED FACTS THAT WERE NOT ENTERED INTO EVIDENCE

Defendant also filed a pro se supplemental brief in which he argues: 1) if the police had conducted a "controlled buy" of the CDS, they would have known that he did not sell anyone drugs; 2) because Gwiazdowski was the daughter of an ex-mayor of a town in Somerset County, the case should not have been tried in Somerset County; 3) he was denied his constitutional right to confront Santora; and 4) his conviction should not stand because the police did not find CDS on his person or in his home.

Having thoroughly reviewed the record, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). However, we add the following brief comments.

Defendant argues that the State failed to establish probable cause to support the issuance of the search warrant. He contends that, in seeking the warrant, the State improperly relied upon statements made by Gwiazdowski after her arrest. Defendant says that because Gwiazdowski was an accomplice in the alleged drug transaction, her statements were inherently suspect. We disagree with these arguments.

"A search based on a properly obtained warrant is presumed valid." State v. Sullivan, 169 N.J. 204, 21l (2001) (citing State v. Valencia, 93 N.J. 126, 133 (1983)). "When a search is conducted pursuant to a warrant, the defendant has the burden of proving the invalidity of that search, namely, 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" Id. at 211 (quoting Valencia, supra, 93 N.J. at 133). When considering a challenge to the validity of a search warrant, the court accords "'substantial deference to the discretionary determination resulting in the issuance of the [search] warrant.'" Id. at 211-12 (quoting State v. Marshall, 123 N.J. 1, 72 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993)).

In this case, the motion judge issued a written statement in which he set forth his reasons for denying defendant's motion to suppress. The judge found that the State had established probable cause for the issuance of the warrant based not only on Gwiazdowski's statements, but also on information gathered by the officers in their investigation.

The judge noted that when it sought the search warrant, the State had presented the court with information showing that: Gwiazdowski distributed cocaine to an undercover officer on two occasions prior to March 24, 2006; Gwiazdowski met with the officer on March 24, 2006 to arrange for another purchase of cocaine; the officer provided Gwiazdowski with $600 in marked currency; surveillance officers observed Gwiazdowski and Santora as they drove to the house on Southside Avenue where defendant resided, entered the house and remained inside a brief time; Gwiazdowski turned over suspected cocaine to the officer; the substance was tested and determined to be cocaine; Gwiazdowski was arrested and found with only $60 of the $600 that the officer gave to her; and Gwiazdowski told the police she purchased the cocaine from a person in the basement of the premises on Southside Avenue. We are satisfied that there was sufficient credible evidence to support the motion judge's finding that the State established probable cause for issuance of the search warrant.

Defendant next argues that the search warrant was constitutionally defective because it failed to treat a single unit in a multiple-unit structure as a separate residence. Again, we disagree. The residence in question was not a multiple-unit dwelling. It was a multiple-occupancy dwelling. Furthermore, defendant did not establish that the basement bedroom was "an independent living unit, separately locked, or otherwise identifiable as a private space" over which defendant "had sole and exclusive control." State v. Sheehan, 217 N.J. Super. 20, 31 (App. Div. 1987).

Defendant additionally argues that the trial court erred by limiting his cross examination of Gwiazdowski regarding her prior criminal convictions. However, a trial judge may impose "'reasonable limitations'" on the questioning of a State's witness regarding his or her criminal convictions. State v. Leonard, 410 N.J. Super. 182, 188 (App. Div. 2009), certif. denied, 201 N.J. 157 (2010) (quoting Vasquez v. Jones, 496 F.3d 564, 571 (6th Cir. 2007)).

Here, the State established on direct examination that Gwiazdowski had been convicted of theft, forgery and false swearing. The State also established that Gwiazdowski had been sentenced to five years in jail as a result of these convictions.

On cross examination, defense counsel was permitted to ask Gwiazdowski some questions about her prior convictions, as well as the plea agreement under which she agreed to testify against defendant. We are satisfied that the limitations imposed by the trial court were reasonable and defendant was afforded a fair opportunity to impeach Gwiazdowski.

Defendant additionally argues that his sentence is excessive. Defendant contends that the court erred by failing to state the facts that supported the judge's findings on the aggravating factors or the weight that he ascribed to each factor. Defendant also contends that the court erred by failing to find mitigating factor eleven. N.J.S.A. 2C:44-1(b)(11) ("The imprisonment of the defendant would entail excessive hardship to himself or his dependents.")

We are convinced, however, that the record fully supports the court's findings on the aggravating factors and the evidence before the court did not warrant a finding of mitigating factor eleven. We therefore conclude that defendant's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

20101022

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