March 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRENCE DARNELL SCOTT, A/K/A TERRANCE D. SCOTT,
TERRENCE D. SCOTT, TERRENECE SCOTT AND
TERRANCE SCOTT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-07-1072A (VOP), 07-01-00052 and 07-01-00056.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2011 Before Judges Payne and Koblitz.
After an unsuccessful motion to suppress evidence, defendant Terrence Scott pled guilty pursuant to a plea agreement on January 14, 2008, to counts three, seven and elevenof Indictment No. 07-01-00056 charging, respectively, two counts of possession of controlled dangerous substances (CDS), cocaine and heroin, with intent to distribute within 1000 feet of school property in the third degree, N.J.S.A. 2C:35-7, and one count of unlawful possession of a handgun in the third degree, N.J.S.A. 2C:39-5(b). The State agreed to recommend that defendant receive extended terms of nine years in prison with a four-andone-half-year period of parole ineligibility on counts three and seven, and five years in prison on count eleven.*fn1 These sentences were to run concurrently to each other and to any resulting violation of probation. That same day, defendant pled guilty to a single violation of certain persons not to have weapons in the second degree, count one of Indictment No. 07-01-00052, N.J.S.A. 2C:39-7(b)(1). In exchange, the State agreed to recommend that defendant be sentenced to five years in prison, the sentence to run consecutive to the sentence on Indictment No. 07-01-00056.
On May 2, 2008, the court sentenced defendant on Indictment No. 07-01-00052 to eight years in prison with a four-year period of parole ineligibility on counts three and seven and five years in prison on count eleven. The sentences ran concurrently with each other and with the violation of probation. Thus, he received a sentence less than the maximum under the plea agreement on these charges. On Indictment No. 07-01-00056, the trial court sentenced defendant to five years in prison with a five-year period of parole ineligibility to run consecutively to the other sentences for an aggregate term of thirteen years with nine years of parole ineligibility. Defendant argues that his motion to suppress the evidence should have been granted and that his sentence is excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.
At the suppression hearing, Detective Gunther Graham of the Elizabeth Police Department testified to the following facts. At around noon on October 21, 2006, he and Detective Darren Williamson were on foot patrol in uniform at Mravlag Manor, a public housing project in Elizabeth that is known as a high-crime and high-drug area.
As the officers entered the Manor, they received a verbal tip from a known confidential informant (informant). The police had previously received information from this informant more than 100 times, and on each occasion the tip had led to an arrest or recovery of narcotics. The informant was seated on a bench, and as the detectives passed, the informant whispered to Graham that a black man with dreadlocks, wearing a brown "hoodie," was holding a "package" in the nearby courtyard. Graham knew from experience that a "package" meant CDS.
The detectives entered the courtyard and, among several people there, saw defendant wearing a brown hooded sweatshirt, with his back turned towards the detectives as they approached.
Graham noticed a bulge about the size of a softball in defendant's sweatshirt and presumed it was the "package" mentioned by the informant. Graham asked defendant if he lived in the complex. Defendant said that he did not, but that he was visiting a friend. After Graham asked defendant for identification, defendant reached into his pocket as if to retrieve it, but fled instead.
Graham was able to grab defendant by his sweatshirt, although a woman standing near defendant pushed her baby carriage holding an infant into Graham to assist defendant in his flight. Graham tackled defendant, and Graham and Williamson then wrestled with defendant on the ground. The detectives repeatedly told defendant to stop resisting, and Graham emptied two containers of pepper spray on defendant in an effort to control him. During the melee, Williamson saw a gun in defendant's hand and shouted, "he's got a gun, gun, partner, gun." Following this cry, Graham used his baton to hit defendant's elbow so that defendant dropped the loaded handgun.
The detectives recovered a bundle wrapped with a handkerchief and stocking material from defendant's pocket. The bundle contained heroin and crack cocaine.
Defendant testified at the suppression hearing that, contrary to Graham's testimony, when asked for identification, defendant gave Graham the only ID he had, his county jail identification bracelet. Defendant testified that it was only after Graham pulled the package containing CDS from defendant's pocket that defendant attempted to flee. The trial court accepted the detective's version of the facts in rendering its decision.
On appeal, defendant argues, POINT I
AS THE DETECIVE LACKED PROBABLE CAUSE FOR WHAT WAS AN ARREST, NOT AN INVESTIGATIVE STOP, THE SEIZURE OF BOTH THE GUN AND THE DRUGS WAS IN VIOLATION OF DEFENDANT'S FOURTH AMENDMENT RIGHTS AND MUST BE SUPPRESSED.
DEFENDANT'S SENTENCE IS EXCESSIVE.
I Defendant argues in Point I of his brief that the police arrested and searched defendant based only on the informant's tip, which was insufficient to establish probable cause.
In reviewing a motion to suppress evidence, we must defer to the trial court's fact findings and "feel" of the case and may not substitute our own conclusions regarding the evidence. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)); State v. Robinson, 200 N.J. 1, 15 (2009). In particular, we must defer to the credibility determinations of the trial court when presented with competing factual testimony. Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966).
However, the standard of review is plenary where defendant's arguments address legal conclusions. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," the reviewing court need not defer to the trial court's ruling. Ibid.; see also State v. Mann, 203 N.J. 328, 337 (2010) ("When a question of law is at stake, the appellate court must apply the law as it understands it.").
"Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004). A person is "seized" in a Fourth Amendment context when, "by means of physical force or a show of authority, his freedom of movement is restrained" and "if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 466 U.S. 544, 553-54, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980).
If a search or seizure is conducted without a warrant, the State must demonstrate that the search or seizure falls within an exception to the warrant requirement. Pineiro, supra, 181 N.J. at 19. The burden is on the State to prove the absence of a constitutional violation by a preponderance of the evidence. State v. Wilson, 178 N.J. 7, 13 (2003).
One such exception is the investigatory stop. "[A]n investigatory stop is valid 'if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" State v. Williams, 192 N.J. 1, 9 (2007) (quoting Pineiro, supra, 181 N.J. at 20). A suspicion of criminal activity will be found to be reasonable only if it is based on "some objective manifestation that the person [detained] is, or is about to be engaged in criminal activity." Pineiro, supra, 181 N.J. at 22 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)). In making this determination, a court must consider "[t]he totality of the circumstances." Ibid.
The detectives based their suspicion of defendant's criminal activity on a tip received from a known and reliable informant. The United States Supreme Court in Illinois v. Gates held that the reliability of a confidential informant's tip is to be analyzed under "the totality of the circumstances." 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). New Jersey has also adopted the "totality of the circumstances test." State v. Zutic, 155 N.J. 103, 110-11 (1998); see State v. Smith, 155 N.J. 83, 92-93, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998). In evaluating the reliability of a confidential informant's tip, the Court has stated that "[a]n informant's 'veracity' and 'basis of knowledge' are two highly relevant factors under the totality of the circumstances." Zutic, supra, 155 N.J. 103, 110-11 (1998) (quoting Smith, supra, 155 N.J. at 93).
However, the Court has also noted that "[a] deficiency in one of those factors 'may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.'" Ibid. (internal quotation marks and citations omitted). For example, "if police corroborate 'information from which it can be inferred that the informant's tip was grounded on inside information, this corroboration is sufficient to satisfy the basis of knowledge prong' as well as the veracity prong." State v. Keyes, 184 N.J. 541, 558 (2005) (quoting Smith, supra, 155 N.J. at 95-96).
The Court has advised that "[t]he veracity factor may be satisfied by demonstrating that the informant has proven reliable in the past, such as providing dependable information in previous police investigations." Keyes, supra, 184 N.J. at 555 (citing State v. Sullivan, 169 N.J. 204, 213 (2001)). The Court has cautioned that "a few past instances of reliability do not conclusively establish an informant's reliability." Smith, supra, 155 N.J. at 94.
The state satisfied the veracity factor in light of the fact that the informant had previously provided police with tips on more than 100 occasions, and on each occasion the police made arrests or found narcotics. The Court has stated that the knowledge factor may be satisfied if the informant provides sufficient details in the tip. Ibid. The Court has also stated that "whether the informant had a basis of knowledge for the information provided to the police 'is relevant to a determination that the information was obtained in a reliable way.'" Sullivan, supra, 169 N.J. at 213 (quoting Smith, supra, 155 N.J. at 94). Where the informant does not explicitly tell the investigating officer the source of the information, "the nature and details revealed in the tip may imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source." Smith, supra, 155 N.J. at 94. The Court has found that "[b]y providing sufficient detail in the tip or recounting information that could not otherwise be attributed to circulating rumors or be easily gleaned by a casual observer, an informant can implicitly disclose a reliable basis of knowledge as the foundation of the information." Id. at 95.
Defendant contends that the informant's tip lacked the required "basis of knowledge" to be found reliable. Defendant analogizes the facts in this case to those in State v. Caldwell, 158 N.J. 452, 460 (1999), where police relied on a tip from an informant who had been giving them information for more than four years. The tip identified the suspect as "a black male in front of 86 Butler Street." Ibid. The Court found that "[t]he building identified as 86 Butler Street is a multi-unit dwelling in a predominantly black community." Ibid. The Court further noted that "[t]he informant did not describe the individual's height, weight, or the clothing he was wearing." He offered no distinguishing characteristics that would have assisted [police] in making a positive identification of the suspect." Ibid. In finding the tip too vague to justify an investigatory stop, the Court stated that "[p]olice must have a sufficiently detailed description of the person to be able to identify that person as the suspect named by the informant. Without such a requirement, police could theoretically conduct wide-ranging seizures on the basis of vague general descriptions." Ibid.
Unlike the facts in Caldwell, where the suspect was merely described as black man in front of an apartment building, the informant's information here was far more detailed. The informant told the detectives that defendant was nearby, wearing a brown "hoodie" with his hair in dreadlocks and that he was carrying a "package."
Moreover, the detectives were able to corroborate some of the information in the informant's tip. Graham initially saw that defendant was the only person in the busy courtyard wearing a brown "hoodie" and, upon approaching defendant, the detective saw a bulge consistent with the sort of "package" that the informant had mentioned. Because defendant wore his sweatshirt hood over his head, the detectives could not immediately verify whether defendant's hair was in dreadlocks.
Given this verification of the informant's basis of knowledge, the detectives had a sufficient reasonable suspicion that defendant was engaged in criminal activity to allow an investigatory stop.
The trial court found that "upon Mr. Scott producing the weapon, the Detectives were justified in placing him under arrest under the plain view doctrine."
The "plain view" exception to the warrant requirement applies if three conditions are satisfied. State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). First, the officer "must be lawfully in the viewing area." Ibid. (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971)). Second, the officer must find the evidence "inadvertently," which means that the officer "did not know in advance where [the] evidence was located nor intend beforehand to seize it." Ibid. (citing Coolidge, supra, 403 U.S. at 470, 91 S. Ct. at 2040, 29 L. Ed. 2d at 585). Third, it must have been "immediately apparent" to the officer that the items found in plain view were evidence of a crime. Ibid.
(citing Coolidge, supra, 403 U.S. at 466, 91 S. Ct. at 2038, 29 L. Ed. 2d at 583).
The trial court held that the three Bruzzese factors were met because:
1) The detectives were lawfully there, as it was a public area, 2) The discovery was inadvertent as they were only following up a tip when Mr. Scott ran and produced the gun, and 3) A gun is obviously a sign of unlawful activity. Lastly, since the arrest was lawful under the plain view doctrine, the gun and "package" of CDS would be admissible as part of a search incident to arrest.
We agree with this analysis.
II Defendant argues in Point II of his brief that his sentence was excessive in that the custodial sentences on the two indictments should have run concurrently rather than consecutively, even though the sentence is consistent with the plea agreement.
"While the sentence imposed must be a lawful one, the court's decision to impose a sentence in accordance with the plea agreement should be given great respect, since a 'presumption of reasonableness . . . attaches to criminal sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61 (App. Div.), certif. denied, 145 N.J. 373 (1996) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)).
Sentences imposed pursuant to a plea agreement must be within the statutory guidelines, and the aggravating and mitigating factors to support the sentence must find support in the record. Sainz, supra, 107 N.J. at 292. Where a defendant receives the exact sentence bargained for, a presumption of reasonableness attaches to the sentence and we will not upset it absent a finding of a clear abuse of discretion. S.C., supra, 289 N.J. Super. at 71. Defendant received a sentence one year shorter and a parole disqualifier six months shorter than the maximum under the plea agreement. Where the facts and circumstances leave little doubt as to the propriety of the sentence, and where there is no showing that the sentences are clearly mistaken, we will affirm. State v. Jang, 359 N.J. Super. 85, 98 (App. Div.), certif. denied, 177 N.J. 492 (2003).
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. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996).
The court found aggravating factors three, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and nine, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). Defendant has an extensive criminal history, including five prior indictable convictions for drug offenses. He committed the crimes in this case while serving a probationary sentence for possession of CDS. He had previously violated probation four times. He served three state prison sentences and seven probationary sentences. The court found no mitigating factors. Defendant argues that the court should have considered in mitigation that he has three children and suffers from diabetes. The presentence report indicates that defendant's three children reside with their biological mothers. Medical care and treatment are available in New Jersey prisons. The court reasonably exercised its discretion in finding that under the circumstances these facts did not support the applicability of a mitigating factor. State v. Dalziel, 182 N.J. 494, 504 (2005).
In determining whether or not a consecutive sentence is appropriate, a reviewing court must consider the reasons provided by the trial court pursuant to State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). State v. Gallagher, 286 N.J. Super. 1, 22 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996). Generally, if the trial court does not provide a reviewing court with express reasons for imposing consecutive sentences, as occurred here, a remand is necessary. Gallagher, supra, 286 N.J. Super. at 22. In State v. Soto, 385 N.J. Super. 247, 257 (App. Div.), certif. denied, 188 N.J. 491 (2006), however, a case involving a previous conviction for possession of CDS with intent to distribute and a more recent assault conviction, we held that where the "[trial] judge imposed an eighteen-month base sentence consecutive to the eight-year sentence defendant was already serving" we need not remand for lack of a statement assessing Yarbough factors because "they were separate crimes committed on separate occasions and the plea agreement itself called for consecutive sentences." Ibid.
In the context of a case that went to trial, the Court recently reiterated that a trial court should ordinarily give reasons for imposing consecutive sentences. State v. Miller, ___ N.J. ___, (2011) (slip op. at 24). Sentences may be upheld, however, when the court's reasoning for imposing a consecutive sentence, while not explicitly stated, can be "readily deduce[d]" from the transcript. Id. at 25. Here, the plea agreement anticipated a consecutive sentence for the certain persons with weapons offense, and the overall sentence was shorter than the maximum permitted under the plea agreement. The trial court properly gave defendant a consecutive sentence for the crime of possession of a weapon by a convicted person. This crime requires a prior conviction and is intended to deter people with criminal convictions, in particular, from illegal weapon possession. Additionally, possession of a weapon by a convicted person should ordinarily call for a consecutive sentence given the legislature's clear intent to specifically deter those with a criminal history from possessing guns. See State v. Jackson, 404 N.J. Super. 483, 488 (App. Div) (where we upheld the trial court's sentence of a fifty-year term of imprisonment for murder, subject to the eighty-five-percent period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, and a consecutive five-year term, without eligibility for parole, for certain persons not to have weapons), certif. denied, 199 N.J. 129 (2009).
If a judge adheres to the sentencing guidelines, the sentence imposed should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984). In State v. Bieniek, 200 N.J. 601 (2010), our Supreme Court fortified the authority of sentencing judges, reminding our court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division:
Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence. [Id. at 612.]
The sentence is reasonable and does not "shock the judicial conscience" under all of the circumstances. Roth, supra, 95 N.J. at 365.