June 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM B. JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-12-1547.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 15, 2011
Before Judges A.A. Rodriguez and LeWinn.
Two indictments charged defendant with numerous drug-related offenses. Following the denial of his motion to suppress evidence of heroin seized in connection with one of the indictments, defendant entered guilty pleas to second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2), in one indictment, and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), in the second indictment. He was sentenced to an aggregate term of eight years imprisonment with a four-year parole ineligibility period. Defendant now appeals the denial of his motion to suppress the heroin; he also contends his sentence on that second-degree charge is excessive. We affirm.
The judge decided the motion to suppress without holding an evidentiary hearing, finding that there was no material dispute of fact. Detective Orlando Robinson of the Paterson Police Department obtained a search warrant for defendant's person and a "no knock" search warrant for his apartment based upon an affidavit that attested to the following: (1) during the week of August 19, 2007, a confidential informant (CI) known to Robinson for approximately ten years and "who has provided . . . accurate, reliable information in the past, which has led to arrests, convictions and confiscations of drugs and drug proceeds," informed the officer that defendant was selling "wholesale bricks of heroin" from his residence at apartment 2F, on Oliver Street; (2) the CI described defendant as a black male who "had a bracelet monitor on his leg"; (3) during that same week, the CI made a controlled purchase of heroin from defendant at his residence; (4) during the week of August 26, 2007, Parole Officer Thawra Naser informed Robinson that one of her parolees, named William Johnson, lived at the Oliver Street address and that he had a bracelet monitor on his leg; (5) during the week of September 1, 2007, Robinson showed the CI a picture of defendant supplied by Naser and the CI identified defendant as the person who sold him heroin; and (6) defendant's criminal history showed "ten felony convictions consisting of possession [of] C.D.S., aggravated assault, aggravated assault on [a] police officer, possession [of] C.D.S. within 1000 [feet of a] school and 500 [feet] of housing projects[,] and possession [of a] weapon for [an] unlawful purpose."
Based upon his "experience[,] the controlled buy and the information gained thr[ough] . . . investigation and the felony convictions consisting of . . . prior weapon and assault on a police officer conviction[s]," Robinson requested a "no knock" search warrant of defendant's apartment and a warrant for defendant's person.
A municipal judge signed the two warrants on September 5, 2007. Robinson and officers from the narcotics squad executed the warrants at approximately 6:00 p.m. on that date. They seized thirteen bricks of heroin, paraphernalia and $3704 in cash from defendant's apartment.
Defendant argued that the warrant was invalid because: (1) it was "issued on stale information"; (2) the CI's information was unreliable because Robinson "lost view of the [CI] while he was inside the building"; (3) the CI "did not give a physical description or know the true name of . . . defendant"; and (4) a "no knock" warrant was not justified under the circumstances.
The judge rejected the first argument, finding that after the CI's controlled buy during the week of August 19, Robinson "continued investigation, including contacting . . . defendant's [parole] officer and having the [CI] make a positive identification." The judge noted further that the "purpose of the continuing investigation was to establish enough probable cause to satisfy the warrant requirement." The judge concluded that defendant's argument "also fail[ed] because . . . the nature of the criminal activities alleged in the affidavit were of a continuing and ongoing type."
The judge dismissed defendant's second argument, citing State v. Keyes, 184 N.J. 541 (2005), in which the Court rejected the identical claim, namely that "the controlled buy . . . [did] not corroborate the informant's veracity and basis of knowledge because the police could not directly observe the informant enter the target residence during the controlled buy." Id. at 559-60. The judge concluded that "[g]iven all of the corroboration . . . in the . . . affidavit, [Robinson's] inability to watch the [CI] enter 161 Oliver Street, does not prohibit a finding of probable cause."
In rejecting defendant's third argument, the judge noted that defendant "fail[ed] to account for the continued investigation conducted by . . . Robinson following the controlled buy[.]" That investigation included the parole officer's confirmation of the CI's statement that defendant wore a bracelet monitor on his left leg, as well as the CI's identification of defendant's photograph.
Finally, the judge concluded that: (1) the "no knock" warrant was justified because "defendant's prior conviction[s] for weapons [and] assault on a police officer gave [Robinson] reasonable particularized suspicion that a no-knock warrant entry was required to protect the safety of the officers involved"; (2) "based on the totality of the circumstances, [Robinson's] reasoning was articulated"; and (3) Robinson "was not acting on a mere hunch. Rather he verified the convictions by checking . . . defendant's criminal history."
At the plea hearing, the prosecutor stated that the sentence recommendation in the plea agreement was nine years.
During colloquy with defendant, the judge noted that "based on the information [he had] in this case, [he agreed] to sentence [defendant] to eight years in New Jersey State Prison with four years before parole eligibility." Defendant responded that he understood.
At sentencing, the judge concluded that aggravating factors three, six and nine applied, N.J.S.A. 2C:44-1(a)(3), (6), (9), based on the following findings: defendant was "found with [thirteen] bricks of heroin, a large quantity"; he has "six adult arrests, three for distribution within a school zone, one for assault, and also possession of [CDS] with intent to distribute with[in] a school zone"; he had been "sentenced six times to six state prison terms"; he has "been a repetitive offender involved in drug trade for quite a period of time"; and defendant needed "to get the message . . . [and s]omehow . . . ha[d] to be stopped." The judge found no mitigating factors applicable.
On appeal, defendant raises the following contentions for our consideration:
POINT I THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE AS THE INFORMATION GIVEN TO THE JUDGE WAS STALE AND THERE WAS NO JUSTIFICATION FOR A "NO KNOCK" WARRANT.
POINT II THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Having reviewed these contentions in light of the record, we conclude they "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm the denial of defendant's motion to suppress for the reasons stated in Judge Philip H. Mizzone's thorough and analytical decision rendered from the bench on October 8, 2008.
With respect to sentence, we note the following. Defendant has a long history of involvement in drug trafficking, including within school zones, evincing his persistent recidivism in drug-related activities. Moreover, a large quantity of heroin was seized from his apartment. On this record, we cannot say that the judge's sentencing decision constituted an abuse of discretion requiring us to "substitute [our] judgment" and "upset" the sentence imposed. State v. Gardner, 113 N.J. 510, 516 (1989).
"[A]n appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). When a trial judge has "exercise[d] discretion in accordance with the principles set forth in the Code and defined by [the Supreme Court]," we may not disturb a sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations omitted).
We are well satisfied that the judge did not misapprehend or misapply the statutory factors; the factual findings underlying the judge's conclusions on the relevant aggravating and mitigating factors are supported by the record; and the term imposed is within the permissible range for the offense involved. State v. Roth, 95 N.J. 334, 363-64 (1984).
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