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State of New Jersey v. Herman Proctor


January 11, 2011


On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-06-00450.

Per curiam.


Argued October 26, 2010

Before Judges Wefing, Baxter and Koblitz.

Defendant Herman Proctor was indicted on one count of second-degree conspiracy to distribute a controlled substance, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(2), and N.J.S.A. 2C:5-2, and one count of second-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2). Defendant appeals his conviction after a jury trial of the third-degree lesser included charge of possession of CDS, N.J.S.A. 2C:35-10(a)(1). He was acquitted of the other charges in the indictment. Defendant argues his motion to suppress the drugs found should have been granted, his confession should have been suppressed, the trial judge improperly failed to hear his motion to dismiss at the end of the State's case, the jury verdict was inconsistent, the obligation to stay current on child support is an improper condition of probation and his two-year probationary sentence is excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant's cousin, Azikwa Rustin, was selling cocaine from the residence where he lived with defendant. The Somerset County Prosecutor's Office obtained an arrest warrant for Rustin and a search warrant to search the entire first floor of the residence for narcotics and paraphernalia. At 3:45 p.m. on May 18, 2008, three officers found four individuals in the living room and defendant in his bedroom, which did not have a door separating it from the rest of the living space. The five individuals were all handcuffed for the officers' safety and because a hostile crowd of seventy-five to one hundred people was gathering outside the house. Due to a health condition, defendant was allowed to remain in the bedroom where his breathing apparatus was located.

After back-up officers arrived, Officer Belgrave "made a statement that if anyone knew where there were any drugs, just to let us know." Defendant responded, "look inside the boot." The boot was at the foot of the bed on which defendant was sitting. Officer Belgrave peered inside defendant's work boot and saw what appeared to be drugs. He did not remove the drugs, but waited for the arrival of additional officers and the K-9 unit, who were already en route. The dog subsequently searched the entire floor, locating forty tinfoil folds containing cocaine in defendant's boot. Defendant's birth certificate and business cards were found in his bedroom as well. Crack cocaine was also found in a smoke detector in defendant's nephew's bedroom.

Defendant was arrested and transported to the prosecutor's office. Officer Gelardi, who was not present during the search, read defendant the standard Miranda warnings nearly three hours later at 6:44 p.m., and defendant waived his rights and gave a full statement. Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694, 726 (1966). Defendant admitted holding the drugs for his cousin, Rustin, who he knew was selling drugs.

At the close of the State's case, defendant moved for a judgment of acquittal. R. 3:18-1. The trial judge denied the motion, finding that a reasonable jury could convict defendant on both charges. After the conclusion of the trial, the trial judge gave defendant ten days to inform him whether he intended to renew his application for a judgment of acquittal. R. 3:18-2.

Three months after the verdict, at the April 3, 2009, sentencing hearing, defendant attempted to renew his motion for a judgment of acquittal, but the trial judge refused to entertain the late application. The trial judge sentenced defendant to two years' probation, with the conditions that he pay a $50 Victims of Crime Compensation Board penalty; a $75 Safe Neighborhoods fee; a $30 Law Enforcement Officers Training and Equipment Fund penalty; a $1000 Drug Enforcement and Demand Reduction penalty; and a $50 forensic lab fee. Defendant was also required to undergo alcohol and drug treatment if recommended after an evaluation and to make regular child support payments.

On appeal, defendant raises the following arguments,


A. The Police Did Not Have Probable Cause to Arrest Defendant.

B. The Evidence Must Be Suppressed As The Arrest Warrant Made No Mention of Herman Proctor And Therefore His Arrest Was an Illegal Warrantless Arrest.








Defendant contends that the trial judge erred in denying his motion to suppress evidence. Defendant asserts that the police lacked probable cause to arrest him, and because no arrest warrant named Herman Proctor, his arrest was illegal. Defendant argues that discovery of the evidence was a product of his illegal arrest and therefore the evidence must be suppressed as "fruit of the poisonous tree" pursuant to Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Defendant claims that his arrest occurred when he was initially placed in handcuffs. At that time only three officers were present with five suspects in the house. We need not decide whether handcuffing defendant constituted an arrest or a valid police-protection procedure, because even if we were to agree that it did constitute an illegal arrest as defendant argues, such a finding would not lead to suppression of the evidence. The drugs in the boot were seized independently of defendant's arrest and statement.

Although the officer looked in the top of the boot and saw the cocaine packets after defendant told him where they were, the subsequent K-9 search was conducted without knowledge of defendant's statement. The officers searched the apartment for CDS pursuant to a valid search warrant and discovered crack cocaine in the smoke detector of another bedroom and over one-half ounce of cocaine in the work boot at the foot of the bed where defendant was seated. The officers also found defendant's birth certificate, one of his business cards and a medical bill addressed to him at that address in that bedroom, while finding no evidence that anyone else stayed there. Defendant's statement that the CDS was in the boot, although not admissible by the State at trial,*fn1 Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 1293, 84 L. Ed. 2d 222, 232 (1985), was permissibly used to contribute to the probable cause to arrest him for possession of the cocaine found in the boot at the end of his bed. State v. Burnett, 42 N.J. 377, 387 (1964).

The Court has noted that "[p]robable cause has been defined in many different ways, defying scientific precision. It is a 'common-sense, practical standard' dealing with 'probabilities' and the 'practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" State v. Evers, 175 N.J. 355, 381 (2003) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). The Court has established a standard of probable cause that is "less than legal evidence necessary to convict though more than mere naked suspicion." State v. Mark, 46 N.J. 262, 271 (1966). The general test is whether there is "a 'well grounded' suspicion that a crime has been or is being committed" at a particular place. State v. Waltz, 61 N.J. 83, 87 (1972) (quoting Burnett, supra, 42 N.J. at 387).

The officers had probable cause to believe that defendant had constructive possession of the CDS found in his room and properly arrested him for possession of that CDS. "A person constructively possesses an object when, although he lacks physical or manual control, the circumstances permit a reasonable inference that he had knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Spivey, 179 N.J. 229, 236-37 (2004).


Defendant argues in Point II of his brief that the statement he gave when brought to the prosecutor's office after his arrest should have been suppressed by the trial judge because defendant made an admission at the scene after improper questioning. When the officers executed the search warrant, one of them asked all of the occupants of the residence where the drugs were located. Defendant responded that the drugs were in the boot at the end of his bed. The trial judge properly ruled that defendant's response to the officer's question was not admissible by the State since the proper Miranda warnings were not given prior to the question.

In State v. O'Neill, 193 N.J. 148, 180-81 (2007), the Court held that "when Miranda warnings are given after a custodial interrogation has already produced incriminating statements, the admissibility of post-warning statements will turn on whether the warnings functioned effectively in providing the defendant the ability to exercise his state law privilege against self-incrimination." The Court explained that

[i]n making that determination, courts should consider all relevant factors, including: (1) the extent of questioning and the nature of any admissions made by defendant before being informed of his Miranda rights; (2) the proximity in time and place between the pre- and post-warning questioning; (3) whether the same law enforcement officers conducted both the unwarned and warned interrogations; (4) whether the officers informed defendant that his pre-warning statements could not be used against him; and (5) the degree to which the post-warning questioning is a continuation of the pre-warning questioning. [Id. at 181.]

The Court specifically rejected a so-called "bright-line" approach, concluding instead that "[i]n a two-step interrogation case, courts must view the totality of the circumstances in light of the relevant factors and then determine whether the unwarned questioning and admissions rendered the Miranda warnings ineffective in providing a defendant the opportunity to exercise the privilege." Id. at 181-82.

Here, the administration of Miranda rights at the prosecutor's office and the subsequent waiver of those rights by defendant sufficiently severed any connection to the one constitutionally tainted pre-Miranda question asked at the home where the CDS was discovered.

Law enforcement at the scene asked only a single question of all the suspects in the home. The officers were concerned about their safety due to the number of people found in the home and the hostile crowd growing outside the home. Defendant's response, admitting knowledge of the location of the CDS, was incriminating. Defendant was administered Miranda warnings by a different officer three hours later at the prosecutor's office. Defendant was not informed that his comment at the scene would not be used against him in court. Although the Court in O'Neill, supra, 193 N.J. at 180-81, indicated this factor was the most important, it is unclear here whether the later questioner even knew about defendant's earlier incriminating comment. Certainly law enforcement did not intentionally use pre-warning questioning to convince defendant it was useless not to respond to post-warning questions. The post-warning questioning was not a continuation of the pre-warning questioning.

Unlike in State v. Yohnnson, ___ N.J. ___, ___ (slip op. at 37-38),*fn2 we find that the O'Neill analysis is appropriate here, although what occurred is not an example of the improper "question-first, warn-later" interrogation procedure exemplified by the facts in State v. O'Neill. Under the totality of the circumstances, sufficient credible evidence in the record supports the trial judge's conclusion beyond a reasonable doubt, State v. Presha, 163 N.J. 304, 313 (2000), that defendant knowingly, voluntarily, and intelligently waived his Miranda rights before he gave his confession introduced at trial.


Defendant argues in Point III of his brief that the trial judge erred in failing to consider his motion for an acquittal at the end of State's case or after the jury verdict. A court shall enter an order for a judgment of acquittal only "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The standard to be applied to determining a motion for a judgment of acquittal at the conclusion of the State's case is set forth in State v. Reyes, 50 N.J. 454, 458-59 (1967):

[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

Under Rule 3:18-1, the trial judge "'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004). The standard for deciding a Rule 3:18-2 motion for judgment of acquittal n.o.v. is the same as that used to decide a motion for acquittal made at the end of the State's case. State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004). On appeal, we apply the same standard. State v. Kittrel, 145 N.J. 112, 130 (1996).

Defendant moved at the close of the State's case for a judgment of acquittal. The trial judge reviewed the record, and in denying the motion, found sufficient evidence for a reasonable jury to convict defendant. After the jury rendered its verdict of guilty on the reduced charge of possession, on January 9, 2009, the trial judge asked defense counsel to advise the court within ten days if defendant intended to renew this motion. If so advised, the judge indicated that the time to renew the motion would be expanded. Defendant did not move to renew his motion until the April 3, 2009, sentencing hearing, nearly three months after the jury's verdict. The trial judge appropriately refused to consider the motion at that late point.

R. 3:18-2.

Defendant has thus not preserved his right to seek review of his motion for a judgment of acquittal at the conclusion of the State's case-in-chief because he failed to properly file a post-verdict motion for a new trial on that ground. See R. 2:10-1; State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).

The evidence here, in any event, was not "insufficient to warrant a conviction." R. 3:18-1. Defendant's admission that he was holding the cocaine for his cousin, knowing his cousin would sell the drugs, is sufficient to sustain a conviction for the more serious charge of possession with intent to distribute and certainly sufficient to warrant a conviction for simple possession of CDS.


Defendant argues in Point IV of his brief that an acquittal of possession of CDS with intent to distribute is inconsistent with a conviction of simple possession of CDS. We reject this argument because possession with intent to distribute requires proof of one more element than simple possession; the intent to distribute. Thus, it is consistent and logical that a defendant would be acquitted of the greater charge and convicted of the lesser charge.

Even if the verdict was inconsistent, "[i]nconsistent verdicts are normally permitted 'so long as the evidence was sufficient to establish guilt on the substantive offenses beyond a reasonable doubt.'" State v. Petties, 139 N.J. 310, 319 (1995) (quoting State v. Kamienski, 254 N.J. Super. 75, 95 (App. Div.), certif. denied, 130 N.J. 18 (1992)). Here, the State's case included proof that was more than sufficient to establish defendant's guilt on the charge of possession of CDS. He was sitting next to a boot that contained a considerable quantity of CDS. The boot was near a bureau on which defendant's birth certificate and business cards were found, thereby leading to a conclusion that the boot, and the CDS, were his. We thus reject defendant's argument that the verdict was inconsistent.


In Point V of his brief, defendant argues that the trial judge exceeded his authority by ordering him to pay child support as a condition of probation. The Criminal Code provides that where the court is sentencing a criminal defendant to be placed on probation, the court "shall attach such reasonable conditions, authorized by this section, as it deems necessary to insure that he will lead a law-abiding life or is likely to assist him to do so." N.J.S.A. 2C:45-1. Such conditions "may require the defendant: . . . . To support his dependents and meet his family responsibilities." N.J.S.A. 2C:45-1(b)(2).

The trial judge found defendant was $5200 in arrears on a $53 per week obligation and properly directed defendant to "make regular child support payments." The trial judge found that defendant was currently unemployed on public assistance and had applied for Social Security Disability benefits due to his medical problems, which include congestive heart failure, high blood pressure, sleep apnea and hypertension. Although defendant may not be able to fully meet his child support obligation given his current financial and medical circumstances, a condition of probation directing "regular child support payments" does not preclude the family court from reducing the child support obligation should the family court find a reduction appropriate.


Finally, defendant argues in Point VI of his brief that a sentence of two years' probation for the third-degree crime of possession of CDS was manifestly excessive. In determining the appropriate sentence to be imposed on a convicted individual, the sentencing judge must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 507 (2005); State v. Kruse, 105 N.J. 354, 378 (1987). If a sentencing judge properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Bieniek, 200 N.J. 601, 608-09 (2010). If a judge adheres to the sentencing guidelines, the sentence imposed should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

Defendant does not contest the propriety of any of the aggravating or mitigating factors found by the judge at sentencing. The judge properly balanced the aggravating and mitigating factors, found that the mitigating factors outweighed the aggravating factors and imposed a two-year probationary sentence. N.J.S.A. 2C:44-1(e). This sentence is not manifestly excessive.


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