February 22, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TROY E. HILL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-05-1104.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011 - Decided Before Judges Sabatino and Alvarez.
After defendant Troy Hill's motion to suppress was denied, he entered conditional guilty pleas to second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2), and third-degree possession of cocaine in a school zone with intent to distribute, N.J.S.A. 2C:35-7. He appeals and we affirm, except the matter is remanded so that the two offenses can be appropriately merged.
The following are the facts developed by the State at the October 5, 2007, suppression hearing resulting in the order from which the appeal is taken. On January 4, 2007, at approximately 10:30 p.m., Asbury Park Patrolman Pierre Louis observed defendant drive through a stop sign. Louis promptly followed defendant and pulled him over in the lighted parking lot of a nearby restaurant. Louis requested defendant produce his credentials and explained that he would be issued a summons for running the stop sign. As Louis walked back to his vehicle, Patrolman Gabe Carrasquillo, the backup officer, arrived at the scene. Carrasquillo walked towards the driver's side of defendant's vehicle and stood about ten feet towards the rear away from the door. When defendant opened the door slightly, Carrasquillo told him to remain in his vehicle. At that point, defendant swung the door open and fled on foot. Carrasquillo yelled for defendant to stop, but he continued running. Louis looked up and saw defendant, with Carrasquillo in pursuit. He left his vehicle and chased after defendant, yelling for him to stop.
Carrasquillo testified the officers caught up with defendant some 100 feet away from the cars. In contrast, Louis stated that he and Carrasquillo were approximately twelve feet away from the vehicle when they caught up with him.
Carrasquillo grabbed defendant, who was swinging his arms. The officers took defendant down to the ground, scraping his head in the process. After defendant was handcuffed, a search revealed three sandwich bags containing both rock and powder cocaine inside a coat pocket, and $1474 in a pants pocket.
Lavell Thompson testified on behalf of defendant, and his version of the events of that night differed from that of the officers. He had been on duty as a security guard at the restaurant when defendant was stopped. Thompson said he saw defendant's car, followed by a patrol car, enter the parking lot. Because he was at some distance, he could not hear any conversation. Thompson "thought" he saw the first officer, Louis, in the presence of Carrasquillo, ask defendant to get out of his car. He recalled the officers directing defendant to place his hands on the car and face the vehicle. Thompson claimed he saw Louis checking defendant's clothes, while Carrasquillo was simultaneously looking in the trunk of defendant's car. Suddenly, he saw defendant running, the officers following behind. When Louis reached defendant, approximately thirty to forty-eight feet from the car, defendant "knocked" Louis "off him" onto the ground but was captured by Carrasquillo. Thompson acknowledged he was not sure about the sequence of events with regard to the search of the trunk, that it had been "a long time ago."
Defendant was the final witness. He grudgingly admitted that he might have run the stop sign by a few feet, but otherwise agreed he was stopped by Louis in the restaurant parking lot. Thereafter, his narrative of the incident varied from the officers and from Thompson.
Defendant testified that shortly after the stop Louis and Carrasquillo conferred while standing behind his vehicle and that Louis told him to turn off his engine as he had a warrant for his arrest. When defendant asked about the warrant, Louis told him to just "come on, get out of the car." He complied with the order, and Louis searched him while Carrasquillo searched the trunk of his car. Carrasquillo was able to gain access without using a key because the trunk lock mechanism was broken and the trunk was ajar. When Louis put his hands in his pockets, defendant ran. He also claimed that he was no more than approximately two feet from the car before the officers grabbed him, and that Louis punched him in the face while Carrasquillo kicked him in the head. He asserted he was so dazed that he may have even briefly lost consciousness while in the patrol car.
The motion judge found the officers' version of the sequence of events straightforward and more credible than defendant's. He acknowledged Thompson's story varied from the officers' but, as he put it, Thompson's testimony was "uncertain." The judge said defendant's own testimony simply made "no sense." He therefore concluded defendant was searched after the arrest, and furthermore, that the arrest occurred only after his attempted flight. Probable cause to arrest defendant arose when he fled while Louis was issuing the motor vehicle ticket; and the search was proper incidental to the arrest. See State v. O'Neal, 190 N.J. 601, 614-15 (2007). The court consequently denied defendant's motion to suppress the evidence.
On January 7, 2008, defendant entered a guilty plea to the charges. The plea agreement called for defendant to be sentenced to a six-year term, subject to three years of parole ineligibility. The State agreed not to request that defendant be sentenced as an extended-term offender.
Defendant's criminal history included a conditional discharge in 1985, a petty disorderly persons offense in 1987, a disorderly persons offense in 1989, third-degree drug distribution in 1988 and 1989, third-degree drug possession and assault on a law enforcement official in 1991, and third-degree drug possession in 1998. At sentencing, the court noted defendant's four indictable convictions and found the record supported aggravating factors three, N.J.S.A. 2C:44-1(a)(3), the risk defendant would reoffend, and nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from violating the law. Because of defendant's work history, he found mitigating factor ten, N.J.S.A. 2C:44-1(b)(10), the likelihood he would succeed on probation, and because of his "family situation," also found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), that his imprisonment would impose a hardship on defendant and his family. This appeal followed.
Defendant's contentions of error are:
IN DENYING THE SUPPRESSION MOTION, THE JUDGE IMPROPERLY EVALUATED THE WITNESSES' CREDIBILITY AND FAILED TO DETERMINE WHETHER THE OFFICERS WERE ACTING IN GOOD FAITH WHEN THEY APPARENTLY SEARCHED DEFENDANT FOLLOWING A MOTOR-VEHICLE VIOLATION.
THE SCHOOL-ZONE DRUG CONVICTION SHOULD HAVE MERGED INTO THE SECOND-DEGREE DRUG CONVICTION BECAUSE BOTH CRIMES INVOLVED THE IDENTICAL DRUGS, POSSESSED AT A SINGLE TIME AND LOCATION.
BECAUSE THE JUDGE FOUND IN MITIGATION THAT THE DEFENDANT WAS LIKELY TO RESPOND TO PROBATIONARY TREATMENT, HE SHOULD NOT HAVE IMPOSED AN AGGREGATE SENTENCE LONGER THAN FIVE YEARS.
THE SENTENCE FOR THE SCHOOL-ZONE OFFENSE SHOULD BE REMANDED FOR RECONSIDERATION OF THE PAROLE DISQUALIFIER IN LIGHT OF THE RECENT AMENDMENT OF N.J.S.A. 2C:35-7.
We review a judge's credibility findings, in this case the basis for the denial of the motion to suppress, deferentially. See State v. Locurto, 157 N.J. 463, 472 (1999); State v. Dispoto, 383 N.J. Super. 205, 217 (App. Div. 2006), aff'd as modified, 189 N.J. 108 (2007). And nothing in the judge's analysis of the testimony causes us to depart from this standard. The police officers' testimony was consistent and internally logical. While the independent eyewitness to some extent contradicted the officers, he also expressed uncertainty about the accuracy of his recollection due to the passage of time. Furthermore, he remembered details no other witness recounted, such as defendant "knocking" Louis onto the ground. Defendant's testimony was not credible, and was inconsistent with that of every other witness.
Moreover, in reviewing a motion to suppress, we uphold the factual findings underlying the motion court's decision so long as they are supported by "sufficient credible evidence in the record." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Given our narrow scope of review, and our concurrence with the judge's credibility findings, we are satisfied that the search indeed followed defendant's lawful arrest for obstructing justice. See State v. Williams, 192 N.J. 1, 13 (2007); O'Neal, supra, 190 N.J. at 614-15; State v. Doss, 254 N.J. Super. 122, 131 (App. Div.), certif. denied, 130 N.J. 17 (1992).
Defendant's first point as to the purported errors in his sentence is that the school zone conviction should have merged with the second-degree possession with intent to distribute. The State concedes. We agree. State v. Dillihay, 127 N.J. 42, 45 (1992). The matter will be remanded for the appropriate merger.
Second, defendant argues that because the court found mitigating factor ten, an aggregate sentence no longer than five years should have been imposed. This argument is not convincing since the weighing of aggravating and mitigating factors is qualitative, not quantitative. See State v. Denmon, 347 N.J. Super. 457, 467-68 (App. Div.), certif. denied, 174 N.J. 41 (2002).
The State also notes the sentence imposed on defendant was the lowest offer they could extend pursuant to the Brimage*fn1 guidelines, because of defendant's exposure to a mandatory extended term as a second offender. See N.J.S.A. 2C:43-6(f). The judge's consideration and the weight he accorded to mitigating factor ten enabled him to sentence defendant as called for by the agreement, but could not have taken him further. Defendant could have been sentenced as a mandatory extended-term offender in the first-degree range to ten to twenty years incarceration with a term of parole ineligibility of up to one-half, but of at least three years' duration. Hence the mitigating and aggravating factors found by the judge, and the manner in which he weighed them, justify the sentence imposed, but would not have supported anything less.
In his final point, defendant contends that, since the school zone statute was amended effective January 12, 2010, a remand is appropriate. The amendment vests discretion in sentencing judges to waive minimum terms of imprisonment and parole ineligibility in certain school zone distribution offenses. See N.J.S.A. 2C:35-7(b). In light of defendant's drug conviction history, however, a remand for reconsideration of sentence is simply unwarranted.
We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the sentencing overall complies with the Code, and the individual sentence does not shock our conscience, the sentencing decision will be affirmed. Ibid.
The court's findings are supported by the record, the imposition of the negotiated sentence complies with the Code, and the sentence does not shock our conscience.
Affirmed, but remanded as to merger.