February 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHARIF ALI BASS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-07-1613.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically: January 11, 2011 -- Decided February 15, 2011
Before Judges Axelrad and J. N. Harris.
Pursuant to a plea arrangement, defendant Sharif Ali Bass pled guilty to first-degree aggravated manslaughter, N.J.S.A.
2C:11-4(a)(1) (Monmouth County indictment 06-07-1613),*fn1
and to second-degree conspiracy to commit robbery, N.J.S.A.
2C:5-2 and N.J.S.A. 2C:15-1 (Monmouth County indictment 08-09-2136).
The State recommended an aggregate sentence of twenty-eight years
incarceration, subject to an eighty-five percent period of parole
ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2. The sentencing court imposed what the State
On appeal, Bass presents the following arguments relating to indictment 06-07-1613 only:
POINT I: THE WARRANTLESS SEARCH RESULTING IN THE RECOVERY OF DRUGS AND A WEAPON FROM 320 ASBURY AVENUE CONSTITUTED A VIOLATION OF THE DEFENDANT'S RIGHT TO BE FREE OF UNREASONABLE SEARCHES AND SEIZURES, NECESSITATING SUPPRESSION AND REVERSAL. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.
POINT II: THE DEFENDANT'S PLEA OF GUILTY TO THE CHARGE OF AGGRAVATED MANSLAUGHTER FAILED TO CONTAIN A SUFFICIENT FACTUAL BASIS AND MUST BE VACATED. (Not Raised Below).
We find these arguments unpersuasive and affirm.
In the indictment that is the subject of this appeal, Bass -- along with three other individuals -- was accused of planning and committing several crimes in Asbury Park, the most serious of which resulted in the homicide of Phonarith Chhieng, who was a victim of the co-defendants' premeditated robbery. Chhieng had been lured from a local bar to the vicinity of 316 Asbury Avenue where he was violently set upon, robbed, and ultimately killed by Bass's cohorts.
Detective Barry DuBrosky of the Monmouth County Prosecutor's Office testified at Bass's motion to suppress evidence seized at 320 Asbury Avenue. DuBrosky indicated that he was investigating Chhieng's homicide, and had determined to search two mostly vacant multi-unit buildings in the vicinity of where Chhieng's body was discovered. To that end, the owner of 316 and 320 Asbury Avenue was ascertained to be a business entity known as Asbury Partners, LLC (Asbury Partners).*fn3 A consent to search the vacant areas of both premises was obtained from William Covino, a person working at the business offices of Asbury Partners. Covino testified that his employer was MD Sass Municipal Finance Partners III, LLC, which was a "managing member of Asbury Partners, LLC." DuBrosky testified that he had initially expected Larry Fishman, described by Covino as the Chief Operating Officer of Asbury Partners, to authorize and sign the consent to search. Instead, because Fishman was unavailable, Covino executed the consent to search form.
Armed with this consent to search, a canvass of 320 Asbury Avenue was made, resulting in the determination that of the separate spaces in the building, only one was legally occupied by a tenant of Asbury Partners. A search of the vacant and unoccupied areas of the building was conducted, resulting in the recovery of evidence that Bass sought to suppress.
The motion judge determined that a valid consent to search was obtained, holding that Covino had apparent authority to voluntarily execute the consent to search form. Additionally, the judge held that Bass had no expectation of privacy in any area of 320 Asbury Avenue, and had no cause to complain about how the evidence was obtained:
The fact that the defendant loitered around the outside of 320 Asbury Avenue or had been in that particular premise for some purpose. The fact of the matter is, there's been nothing before this Court to indicate that he had any legal interest in the vacant areas of the property; and more, on any contraband that was within the property.
And in this particular case, what we're talking about is a place that was vacant,part of a redevelopment project, only one portion of the building was occupied, and certainly not by this defendant. And apparently, there was some drugs found there and a gun. And a defendant who hides drugs in someone else's vacant property has no constitutionally reasonable expectation of privacy.
[A]nd, in essence, . . . this defendant really had no constitutionally protected interest that would have required him to have given consent for the search of the property. So therefore, the Court will deny [the] motion to suppress in this particular matter.
More than a year after the suppression motion was denied, Bass entered a plea of guilty to aggravated manslaughter. At the time Bass entered his plea of guilty, his co-defendants all had either entered pleas of guilty or been found guilty of the charges in the indictment. The judge who oversaw Bass's plea allocution and accepted the guilty plea was familiar with the circumstances of the crimes and what had happened to the three co-defendants.*fn4
The plea allocution reveals the following exchanges between the court and Bass:
[Court]: All right. Now do you understand that when you agree to commit a robbery, all right, what you did in this case? [Bass]: Yes. [Court]: All right. And do you understand further that you were aware that Mr. Braxton had got hurt three days before? [Bass]: Yes. [Court]: All right. So to be liable for murder in this case for a lesser included offense of aggravated manslaughter, all right, there's a -- what's called a conspiracy theory of liability. Do you understand that?
[Bass]: Yeah, I know. [Court]: And basically the State's position would have been, in this case, that knowing of the prior robbery and what happened [to Braxton], that when you entered that conspiracy to rob in this particular case, and were in fact an accomplice to the robbery, because you had a purpose to rob that particular individual. [Bass]: That's correct.
[Court]: All right. That it could be reasonably foreseeable, and it would be a jury question, it would have been reasonably foreseeable that someone could have been seriously injured or in fact killed. [Bass]: That's correct.
[Court]: Do you understand? [Bass]: Yes. [Court]: And that could have been the -- the murder conviction in this particular case. And, again, you've agreed that, certainly, as a result of you agreeing to be involved in the robbery and being an accomplice to the robbery, someone did die, there's no question about that. [Bass]: That's correct. [Court]: All right. Because your co-defendant killed him. So aggravated manslaughter is a manslaughter involved, you know, reckless indifference to human life. So even though individually you did not kill this particular person, you're pleading to that on the theory either that as a conspiracy, it's a lesser included offense; or, you know, you would have been guilty of felony murder and it's a lesser included offense for that, the State's giving you the benefit of the doubt. Is that true? [Bass]: That's true. [Court]: All right. Do you understand that? [Bass]: I understand.
[Court]: All right. And the murder theory that we also talked about. You had an agreement to rob somebody. It is reasonably foreseeable that someone would get killed or seriously hurt as a result of that type of activity. Do you understand that? [Bass]: Yes.
Based upon the totality of the circumstances, the court accepted the plea as providing a sufficient factual basis to support the crime of aggravated manslaughter.
Bass argues on appeal that the State did not demonstrate that it was objectively reasonable for DuBrosky to have accepted Covino's authority to acquiesce in permitting the search of the vacant and occupied spaces at 320 Asbury Avenue. Furthermore, Bass argues that the Law Division erred in concluding that he lacked a reasonable expectation of privacy because 320 Asbury Avenue was not abandoned property, it was only mostly unoccupied and vacant.
First, we note that our scope of review is controlled by well-settled law. We are counseled to "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted) (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record") (citing State v. Johnson, 42 N.J. 146, 164 (1964)). We will reverse only if convinced that the motion judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting Johnson, supra, 42 N.J. at 162). After applying these standards, we conclude that the warrantless search of 320 Asbury Avenue was valid and the Law Division correctly denied the motion to suppress.
"A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search." State v. Domicz, 188 N.J. 285, 305 (2006). Furthermore, "consent searches are considered a 'legitimate aspect of effective police activity.'" Ibid. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854, 863 (1973)).
To determine whether a consenting party has the required nexus with the property to be searched, the court must determine whether the police officer had a reasonable belief at the time of the search "that the consenting party ha[d] sufficient control over the property to consent to its being searched." State v. Crumb, 307 N.J. Super. 204, 243 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). It is "'appearances of control' at the time of the search, 'not any subsequent resolution of questions of title or property rights,'" that must be used to assess the validity of the search. State v. Farmer, 366 N.J. Super. 307, 313 (App. Div.) (quoting State v. Santana, 215 N.J. Super. 63, 71 (App. Div. 1987)), certif. denied, 180 N.J. 456 (2004).
On the basis of the testimony presented at the suppression hearing, Covino's consent to search was valid. When DuBrosky went to the offices of Asbury Partners to obtain consent, he encountered Covino as the person in charge. He was able to confirm ownership and other information concerning the property. Even though he expected to meet Fishman, and obtain his consent, there was nothing unreasonable about DuBrosky's reliance upon Covino in Fishman's absence. The fact that it later was revealed that Covino served in an important management position with Asbury Partners's managing member fortifies the reasonableness of obtaining the consent to search in the manner done here.
An additional question is whether Bass maintained a reasonable expectation of privacy in the contraband collected from the vacant and unoccupied space of a building that was planned to be razed. The requirement of a warrant applies when an accused "'has a legitimate expectation of privacy in the invaded place.'" State v. Stott, 171 N.J. 343, 354 (2002) (quoting Minnesota v. Olson, 495 U.S. 91, 95, 110 S. Ct. 1684, 1687, 109 L. Ed. 2d 85, 92 (1990)). The United States Supreme Court has stated that "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576, 582 (1967) (citation omitted).
We have held that "a defendant who hides drugs in someone else's vacant property has no constitutionally-reasonable expectation of privacy." State v. Linton, 356 N.J. Super. 255, 259 (App. Div. 2002). We see no material distinction between the case before us and Linton. Bass had no legal or other interest in the building and had no constitutionally reasonable expectation of privacy. The seizure without a warrant was constitutionally permissible under these circumstances.
Bass argues that the factual basis provided as part of his plea allocution was insufficient for the crime of aggravated manslaughter for two reasons. First, Bass contends that the evidence did not demonstrate that he acted under circumstances manifesting extreme indifference to human life. Second, he argues that the most that could be adduced from the record was that he was aware of a possibility, not a probability, of a risk of death to the robbery victim. We find Bass's arguments legally unpersuasive.
Aggravated manslaughter is a lesser-included offense of murder, and is defined as a homicide that occurs when "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life[.]" N.J.S.A. 2C:11-4(a)(1). "Recklessness under circumstances 'manifesting extreme indifference to the value of human life . . . is significantly more serious than ordinary reckless conduct.'" State v. Pearson, 318 N.J. Super. 123, 135 (App. Div. 1999) (quoting State v. Farrell, 250 N.J. Super. 386, 390 (App. Div. 1991)). "The higher degree of recklessness involves not just a possibility that death will occur, but a probability of its occurrence." Pearson, supra, 318 N.J. Super. at 136. Thus, "[a]ggravated manslaughter requires proof that the defendant caused death and 'was aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result, and . . . manifested extreme indifference to human life.'" State v. Gaines, 377 N.J. Super. 612, 621 (App. Div.) (quoting State v. Cruz, 163 N.J. 403, 417 (2000), subsequent appeal at, motion denied by, 171 N.J. 419 (2002)), certif. denied, 185 N.J. 264 (2005); see also State v . Ramsey, 415 N.J. Super. 257, 267 (App. Div. 2010), certif. denied, __ N.J. __ (2011).
Bass pled guilty to the crime acknowledging principles of vicarious liability. In State v. Bridges, 133 N.J. 447 (1993), the Supreme Court held:
[A] conspirator can be held liable for the acts of others that constitute a reasonably foreseeable risk arising out of the criminal conduct undertaken to effectuate the conspiracy, and occurring as the necessary or natural consequences of the conspiracy. The substantive crime must be reasonably and closely connected to the conspiracy even though those crimes may not have been within the actual contemplation of the conspirators or within the scope of the conspiracy as originally planned. [Id. at 468.]
Thus, "'[c]onspirators are treated as accomplices under N.J.S.A. 2C:2-6, and hence are guilty of the same substantive offense as the principal.'" State v. Taccetta, 301 N.J. Super. 227, 243 (App. Div.) (quoting State v. Curry, 109 N.J. 1, 9 (1987)), certif. denied, 152 N.J. 188 (1997); see also State v. Stein, 70 N.J. 369, 387-88 (1976); State v. Cagno, 409 N.J. Super. 552, 577 (App. Div.), certif. granted, 200 N.J. 550 (2009).
A fair reading of Bass's factual basis contains admission of every essential element necessary for imposition of vicarious liability for aggravated manslaughter. In obtaining a factual basis for a plea, the court need not "follow a prescribed or artificial ritual." In re T.M., 166 N.J. 319, 327 (2001). The factual basis "should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy" to determine its adequacy. Ibid.; see also State v. Sainz, 107 N.J.283, 293 (1987). "Every alleged deficiency in the taking of a factual basis does not constitute reversible error." State v. Pena, 301 N.J. Super. 158, 163 (App. Div.), certif. denied, 151 N.J. 465 (1997). Here, we perceive nothing that suggests reversible error.
The Law Division was well-acquainted with the circumstances of Bass's involvement with his co-conspirators, as well as the nature of the events that resulted in Chhieng's death. From the perspective of that court, it was plainly obvious after hearing Bass's plea allocution that Bass had provided a constitutionally-adequate foundation to support the conviction of aggravated manslaughter. Being unable to detect error in the substance of Bass's plea, much less in the process of obtaining it, we are satisfied that his conviction is valid.