July 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGEL ARROYO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 09-04-0464.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 21, 2011
Before Judges Carchman and Parrillo.
Following an unsuccessful motion to suppress, defendant Angel Arroyo entered a plea of guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b).
At sentencing, fifteen additional charges were dismissed, and defendant was sentenced to concurrent terms of eight years imprisonment with a five-year period of parole ineligibility together with mandated fines and penalties.
Defendant appeals and challenges the denial of his motion to suppress as well as his sentence.*fn1 We affirm.
These are the facts adduced at the motion to suppress. On September 21, 2008, a confidential informant (CI) notified the Wharton Police Department that defendant was using his residence at 188 Princeton Avenue in Wharton as a base for the sale of narcotics and that he possessed semi-automatic firearms there as well. On October 17, 2008, pursuant to a search warrant, the police searched Ruben's Auto Repair in Denville. The search revealed a box containing an assault rifle, handgun, and large capacity magazines; the box bore defendant's shipping address and alias, Ramfis Ramirez Lugo. After determining that no one by that name held valid permits for the firearms and that possession of the guns in question was per se illegal, a search warrant was issued for Mr. Ramirez Lugo's residence.
Relying on information provided by the CI, the warrant specified that 188 Princeton Avenue had "blue vinyl siding, and dark blue shutters. The residence has a grey roof and an attached one car garage. When facing the residence the numbers 188 appear above the mailbox to the right side of the front door." According to the CI, to reach defendant's personal residence, one "enters the front door, turns right (toward the garage side of the house) and enters the last door on the left." The police followed the CI's directions, and upon executing the warrant, police seized rifles, handguns and other items related to firearms including magazines, ammunition, silencers and carry cases as well as drug paraphernalia and assorted identifications. A concurrent motor vehicle stop of defendant for a cracked windshield revealed a handgun in plain view of the officer as well as several rounds of ammunition, and two driver's licenses - one valid and one falsified. The valid license revealed that defendant's real name is Angel Arroyo.
At the conclusion of the hearing, the motion judge denied the motion to suppress, concluding that the warrant was not defective and provided sufficient particularity to identify defendant's place of residence.
We will uphold the findings of the trial court as long as the record contains "sufficient credible evidence" to support such findings. State v. Elders, 192 N.J. 224, 243 (2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)). We will not overturn the motion judge's decision merely because we would have reached a different conclusion. We will do so when the conclusions are so clearly improper that justice demands they be corrected. State v. Johnson, 42 N.J. 146, 162 (1964).
Defendant contends that the warrant to search his residence was invalid because it did not identify the room to be searched by number. The State responds that the warrant is valid because it specifically described the house to be searched and included detailed directions for finding defendant's residence within that house.
A valid search warrant must be issued "upon probable cause and particularly describing the place to be searched and the papers and things to be seized." N.J. Const., art. I, ¶ 7. A warrant must be clear enough that the executing officer can reasonably determine the place intended to be searched. State v. Marshall, 199 N.J. 602, 611 (2009) (quoting Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757, 760 (1925)) (holding that a warrant for only one apartment in a two-apartment house was invalid when it did not specify and police could not determine which apartment belonged to the suspect); see also State v. Wright, 61 N.J. 146, 149 (1972). However, the warrant must be specific enough that it excludes areas that are not subject to the investigation at hand.
Marshall, supra, 199 N.J. at 615. When a multiple-unit dwelling is the subject of the warrant, the warrant will only be valid if investigators know or can determine the particular unit to be searched. Id. at 613.
Unlike in Marshall, the officers here experienced no confusion in determining which apartment unit to search. The turn-by-turn directions listed in the warrant led police directly to defendant's residence without the necessity of searching other areas of the house not covered by the warrant. The instructions were sufficient to isolate and identify one room -- defendant's apartment -- from the rest of the house, satisfying the particularity mandate of the Constitution.
Defendant's argument that the warrant is invalid because it failed to identify the apartment by number is not supported by case law. Considering that defendant does not even claim to have a number by which to identify his apartment, the description of the apartment contained within the warrant could not have been clearer or more particular. Because the directions allowed investigating officers to isolate and identify the specific location to be searched, the warrant is valid, and the motion judge's denial of defendant's motion to suppress the evidence was proper.
We now address defendant's contention as to his sentence. We will uphold the sentencing decision of the lower court unless it is a "patent and gross abuse of discretion" that "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). We will not overturn a sentence unless the ruling is arbitrary and capricious.
To determine whether a sentence shocks the judicial conscience, we apply the three-factor test set forth in Roth. Id. at 364. The first factor is whether the statutory sentencing guidelines were followed. Ibid. Second, we "review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record . . . ." Ibid. Finally, even if the proper guidelines were technically followed, the sentence may still be modified if the facts of the case render the sentence unduly harsh and patently unreasonable. Id. at 364-65.
Sentencing guidelines are followed if the sentence falls within the range of minimum and maximum penalties enumerated by the state sentencing statute. See State v. Ghertler, 114 N.J. 383, 388 (1989). For a crime of the second degree, this range is between five and ten years. N.J.S.A. 2C:43-6(a)(2). To determine whether a sentence skews toward the minimum or maximum penalty, the court may use its discretion to balance mitigating and aggravating factors. Ghertler, 114 N.J. at 388; N.J.S.A. 2C:44-1. If there is manifest error in the determination of aggravating factors, the original sentence may be overturned. State v. Jarbath, 114 N.J. 394, 404 (1989) (finding that the trial court erred by imposing aggravating factors that were directly contradicted by facts and evidence accepted in the record). In the absence of such error, a sentence will be considered so unreasonable as to shock the judicial conscience only if "no reasonable sentencing court could have imposed the sentence under review." Ghertler, supra, 114 N.J. at 388.
Here, defendant's sentence of eight years in prison was within the prescribed range of five to ten years for crimes of the second degree. N.J.S.A. 2C:43-6(a)(2). Five years of parole ineligibility is the mandatory minimum sentence for a conviction under N.J.S.A. 2C:39-7(b). Furthermore, the sentencing judge's finding of aggravating factors three, six and nine and mitigating factors one and nine was reasonable given the facts of the case. Defendant has several prior felony convictions including attempting to elude police, distribution of controlled dangerous substances, and receiving stolen property. His continued possession of firearms despite knowing he was "not supposed to have them" and claiming that he carried a handgun because he felt unsafe around co-workers supported the finding of a reasonable risk that he will commit another offense. Finally, the need to deter others from illegally possessing firearms demonstrates a valid, record-based rationale for the aggravating factors imposed by the sentencing judge.*fn2
Defendant claims that aggravating factor three and mitigating factor nine are mutually exclusive, but even if correct, such an error would be harmless. Even if aggravating factor three was excluded, the judge still could have reasonably determined the remaining aggravating factors outweighed the mitigating factors. Finally, because second-degree crimes carry a presumptive sentence of seven years, an eight year sentence should hardly shock the judicial conscience.
While not briefed, defendant raised an additional argument in his pro se notice of appeal. He claims that he was offered and accepted a plea agreement for six years in prison with three years parole ineligibility.
A plea offer may be valid if it is offered, "accepted, and entered on the record." State v. Madan, 366 N.J. Super. 98, 115 (App. Div. 2004). Offers are also subject to judicial review to ensure that they comport with the law and are subject to proper discretion. Ibid.
The State denies ever making such an offer and claims that this was a misunderstanding, and represents defendant's requested plea agreement. Although defendant claims that although there was such an offer and he did accept it, his counsel never informed the prosecutor or judge of such acceptance. Furthermore, there is no written record of such an agreement. Finally, even if such an agreement did exist, its validity was problematic, as the plea to the charge of a felon in possession of a firearm carries a mandatory minimum sentence of five years in prison without parole eligibility. N.J.S.A. 2C:39-7(b). Defendant's argument is without merit.