July 29, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRANCE L. INGRAHAM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-04-00381.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 29, 2010
Before Judges C.L. Miniman and LeWinn.
Defendant Terrance Ingraham appeals from his convictions for seven
counts of first-degree armed robbery, contrary to N.J.S.A. 2C:15-1;
one count of second-degree possession of a
firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and
five counts of third-degree unlawful possession of a handgun, contrary
to N.J.S.A. 2C:39-5b. He also appeals the extended-term sentence of
forty-five years imposed on one of the robbery counts with a
requirement pursuant to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2, that he serve eighty-five percent of that term.*fn1
We now affirm defendant's convictions and sentence.
Prior to trial, the judge granted defendant's motion to sever the trials relating to victims Marsellis Chandler and Lateff Holmes, who were robbed on January 15, 2006 (Counts One to Three and Seven to Nine); Linc Thompson, Al Joseph, and Damien Ware, who were robbed on January 16, 2006 (Counts Ten to Fourteen); and Damano Scarletta, who was robbed on January 19, 2006 (Counts Fifteen to Seventeen), from the trial relating to victim Shaheed Muhammed, who was robbed on January 15, 2006 (Counts Four to Six), and the matter proceeded to trial with respect to the robbery of Muhammed only.
Defendant moved on October 20, 2006, to suppress the evidence seized from his girlfriend's automobile. The facts relevant to the seizure were developed at a hearing the following April and began with the robbery of Scarletta on January 19, 2006, four days after Muhammed had been robbed. Linden Patrolman Joseph Kaulfers and his partner were on patrol at 1:30 a.m. on January 19 when they responded to a call about a possible suspect who had been involved in the Chandler robbery four days earlier. Chandler had the possible suspect, later identified as defendant, in sight at Uncle Charlie's, which was located at the intersection of East Linden Avenue and Park Avenue South in Linden, and pointed him out to the police. While at Uncle Char-lie's, Kaulfers was flagged down and told that the suspect had just robbed someone at gunpoint, presumably Scarletta, in Uncle Charlie's parking lot.
Kaulfers and his partner, William Mack, encountered defendant driving a blue Chevrolet TrailBlazer belonging to his girlfriend. They followed him onto Routes 1 and 9 and effectuated a motor vehicle stop. Kaulfers ordered defendant to get out of the TrailBlazer, patted him down, and arrested him. Defendant's girlfriend was also ordered out of the vehicle. As she stepped out of the vehicle, she reached back into it and placed her open purse on the front passenger seat. Both front doors of the TrailBlazer were now open. In plain view in her open purse were controlled dangerous substances. By this time, a third police officer had arrived at the scene. While another officer was watching defendant and his girlfriend, Kaulfers searched the driver's compartment for weapons and confiscated the purse without searching the passenger compartment. Once his supervisor arrived, the vehicle was secured and towed to the Linden garage. Kaulfers denied searching the vehicle.
Mack testified that he and Kaulfers were flagged down by an individual who saw the robbery at Uncle Charlie's and pointed out defendant, who was running to his vehicle. They observed defendant get into the vehicle and pull away. As they were following him, another call came in that a robbery had just occurred at Uncle Charlie's. He and Kaulfers performed a high-risk motor vehicle stop because a gun had reportedly been used in the robbery. Defendant and his girlfriend were handcuffed and placed on the side of the road while Kaulfers searched the driver's compartment. They could see the entire interior of the car. Nothing was removed from the car that night other than the girlfriend's purse.
Defendant testified, claiming that there were eight or nine officers at the scene of his arrest, that he had been placed in the patrol car immediately behind his vehicle after his arrest, and that he observed the police search his entire vehicle. All four doors of the vehicle, which had tinted windows, and its rear lift gate were open. One officer took a black fur coat out of the back seat of defendant's vehicle and placed it on the hood of the patrol car. When Chandler arrived at the scene with another person and parked his vehicle in front of the TrailBlazer, the officer held up the coat, Chandler looked at it, and shook his head, "no." Defendant testified that his vehicle contained a lot of items----jumper cables, a case of CDs, some tickets, two or three tubs of clothes, and some boots. He could see the officers looking through these items, although nothing but the black coat was removed from his vehicle.
Chandler testified that he was driving past Uncle Charlie's on January 19 when he saw a robbery occur. He pulled into the parking lot, because the victim of this robbery was a friend of his, and saw the police begin to chase defendant. Later, the police brought Chandler to Routes 1 and 9 to see if he could identify any of his property in the vehicle that they had pulled over to the side of the road. By this time, there were several patrol cars at the scene. All of the TrailBlazer's doors were open, and the lift gate was as well. The police asked him to look into the back of the vehicle to see if he could identify anything as his. Nothing had been removed from the vehicle. He saw a coat but could not identify anything as his property. Later that day, he identified defendant at the police station.
Detective David Dehler testified that the police obtained a search warrant for the TrailBlazer on January 23, 2006. He searched the vehicle the following day and seized fifteen items from the vehicle. As he seized each item, he marked it on an evidence inventory form and tagged it. He signed and dated the handwritten tags with the collection date of January 24.*fn2 None of the items had been previously seized. Most, but not all, of the items were photographed. The evidence was then brought back to police headquarters and eventually delivered to the police evidence clerk who entered it into the "Best Evidence Collection System."
The evidence clerk, Officer Gerald J. Sawczyn, also testified. He was shown a Department Case Report, which he testified was generated by his computer. The first page related to the Muhammed robbery and indicated that Dehler was the case officer. Case item number one was a photo lineup collected on January 19.
The next five pages all indicated that Kaulfers was the case officer for the robbery of Scarletta at Uncle Charlie's on January 19. Fifteen items were listed as having been seized on January 19 from various locations in the TrailBlazer. The last two pages of the report indicated that the case officer was William Mack and itemized the items seized on January 19 from the purse of defendant's girlfriend.
Sawczyn copied three reports from the Record Bureau and used them to create his "Best report." Then he associated the evidence seized with the three Record Bureau reports. He would have the evidence in front of him as he did this and would work off the evidence tags. If the evidence was collected on January 24, he would use that date. He could not explain why pages two through six of his "Best report" indicated that the evidence was collected on the nineteenth when the inventory log indicated it was collected on the twenty-fourth. He believed that the nineteenth was generated by the top of the page relating to the offense date and he did not correct it based on the evidence tags, although he generally would have done so. He did not know why the computer would have done this. The evidence tags also indicated that he did not receive the fifteen pieces of evidence until February 21, 2006. He assumed the evidence had been retained in the Detective Bureau locker until that time. The tag on the photo array indicated that it was collected on January 19 and received by him on January 23, 2006.
The judge found that the evidence was in fact collected on January 24, not January 19, and that nothing was seized from the vehicle on January 19 except for the purse. The judge framed the issue as whether anything that happened on January 19 amounted to an illegal search and seizure. The State argued that opening all of the doors and the lift gate was no more an illegal search than using a flashlight to look through the windows, but the judge found that the issue was a factual one. He found the police officers credible and found that they only searched the driver's compartment.
In denying the motion, the judge stated:
In essence the defense alleges a somewhat complicated scheme to cover up a bad search involving perjury, falsification of evidence labels, replacing evidence labels that have one date with another date, falsifying documents and police records, using a search warrant and bringing it to a judge as part of a cover[ ]up of an illegal search. As I said before, I believe these officers were credible, and I don't believe that these career police officers would engage in what amounts to this . . . fairly complicated, illegal conduct with a paper record to cover up the seizure of what appears to be not-so-important evidence in this case, not the type of evidence that would cause the case to go away or even cause any significant hurt in the case. I would further note that there was no seizure of the items in question until after the search warrant, no real evidence of any seizure of any items until after the search warrant. I don't find the defendant's testimony credible that there were multiple officers searching the car and that there were things taken out of the car and placed in different places. This is contradicted by the officers. It's also contradicted by [Chandler].
While the computer printout does show that things were taken on the 19th[,] . . . I don't find that to be a true reflection of the collection dat[e]. I would note that Item No. 1 of this matter was . . . a photo spread that was used on the 19th with one of the witnesses and formed the basis for some of the arrest warrants, and that was logged in on the 19th, and I suspect that that carried over to all of the other entries as showing 1-19. But there . . . is no clear explanation . . . of that, and in order for me to believe . . . that that 1-19 was originally on all of the labels that were put on the numerous pieces of evidence seized, I would have to conclude that there was originally a whole set . . . of labels, multiple labels on multiple pieces of evidence, that those labels were then all taken off and discarded, or destroyed, and new labels put on that showed 1-24, which is what the labels show on there now.
Once again, I found the officers' testimony to be credible, based on what they said, based on their demeanor, and . . . I do not find that they engaged in . . . the type of cover[ ]up, falsification and illegal conduct that basically is alleged by the defense here.
Accordingly, he denied the application, and the trial of the counts related to Muhammed came on for trial the following year.
At trial the evidence established that on January 15, 2006, Muhammed was outside his four-family residence in Linden between 8:30 and 9:00 p.m. switching family members' cars between the driveway and street. He noticed a man, later identified as defendant, walking up the street, who asked Muhammed "[W]hat's up?" as he approached. Defendant then walked up onto the porch of Muhammed's residence and acted as if he was ringing the doorbell. When Muhammed went to unlock his door, defendant pulled out a black handgun, pointed it at Muhammed, and demanded his money, North Face jacket, belt, pants, boots, and baseball cap. Muhammed gave $40 to defendant who then reached into Muhammed's pocket, feeling for more money. Defendant said that, if he found more, he would shoot him. This threat was repeated several times while defendant was holding the gun to Muhammed with defendant instructing Muhammed not to look at him. Muhammed, however, had already gotten a glimpse of defendant before he confronted him on the ill-lit porch. Defendant then took Muhammed's keys, threw them into the bushes, and threatened Muhammed not to turn around. Defendant then fled the scene.
Muhammed immediately went into his house and called 9-1-1, although he was not able at that time to give any detailed information concerning defendant's appearance. The police responded within two minutes and took a report of the robbery, including a description of defendant and the gun.*fn3 Several days later, Muhammed went to the police department and viewed a photo array, which included defendant's photograph. Muhammed identified defendant as the perpetrator.
Defendant was convicted on all three counts. Pursuant to a plea agreement, he pled guilty on June 9, 2008, to ten additional counts in the seventeen-count indictment, and the State dismissed four of the five charges for possessing a weapon for an unlawful purpose.
Prior to sentencing, the State moved for a mandatory extended-term sentence on Count Four, the armed robbery of Muhammed, under N.J.S.A. 2C:44-3d. It argued that the proof of a prior conviction from the Commonwealth of Massachusetts was sufficient to make defendant eligible for extended-term sentencing. Defendant argued that the State had not met its burden of proof with respect to the prior conviction because the Massachusetts indictments, docket sheets, letters from the Massachusetts prosecutor, police report, and the Commonwealth's statement of the case were insufficient because there was no document analogous to a judgment of conviction. Although defendant was indicted for a weapons offense there, there was nothing to indi- cate that he was convicted of it. Absent such proof, defendant argued that the State could not rely on the Massachusetts charges to impose an extended term for these offenses. He pointed out that the State had had many months to compile the required information because the issue had been raised previously before another judge.
In deciding the motion, the judge found that the only issue under N.J.S.A. 2C:44-3d was whether defendant had "'previously been convicted under any statute of . . . any other state, which is substantially equivalent to the offenses enumerated in this subsection.'" He concluded that the State's burden of proof was by a preponderance of the evidence, citing State v. Oliver, 162 N.J. 580, 590-92 (2000); State v. Stewart, 96 N.J. 596, 606 (1984); and State v. Lagares, 247 N.J. Super. 392, 400 (App. Div. 1991), aff'd in part and rev'd in part on other grounds, 127 N.J. 20 (1992). He noted that the records were certified. He also noted that defendant was charged with July 3, 2000, offenses during which he (1) was armed with a silver handgun and assaulted one Clifford Elston with the intent to rob him and (2) did rob and steal two gold chains from Elston. The certified docket entries for September 14, 2001, indicated that defendant pled guilty to the two offenses charged. Nothing indicated that the charges were amended in any respect. As a result, the judge found that the State had proved by a preponderance of the evidence that defendant previously pled guilty to an armed robbery. He further found that the sentence imposed in Massachusetts, which was less than that which could be imposed for the crimes to which he pled, did not bear upon the nature of the offense to which he actually pled guilty. As a result, the judge concluded that defendant was subject to extended-term sentencing.
Defendant raises the following issues for our consideration:
POINT I -- THE MOTION COURT'S DENIAL OF THE SUPPRESSION MOTION CONSTITUTES REVERSIBLE ERROR.
POINT II -- THE SENTENCING COURT WAS BARRED FROM IMPOSING AN EXTENDED TERM SENTENCE BY THE DOCTRINE OF LAW OF THE CASE.
After carefully reviewing the record in light of the written and oral arguments advanced by the parties, we conclude that defendant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). The first argument is that the judge erred in denying the suppression motion because (a) the police searched and seized defendant's vehicle without a warrant and (b) the warrantless search and seizure of the vehicle and its contents did not fall within either the exception to the warrant requirement for searches incident to an arrest or the automobile exception. The second argument is that the judge was barred from imposing an extended term by the law-of-the-case doctrine because the judge at the suppression hearing found the Massachusetts records unclear and confusing and did not establish that defendant had been convicted of any offenses in Massachusetts.
We affirm the denial of the suppression motion substantially for the reasons expressed by the motion judge in his oral opinion delivered on April 20, 2007. As the judge correctly determined, the suppression issue was a factual one, not a legal one, and he resolved the factual dispute in favor of the State, concluding that no search had occurred beyond the driver's compartment, and nothing was seized except the purse in plain view on the front seat. Defendant has cited no case for the proposition that police officers may not open the doors of a vehicle after a defendant has been arrested for armed robbery following a hot pursuit, nor have we found any. We are satisfied that the findings and conclusions of the judge are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999).
With respect to the extended-term sentencing, although we recognize that the judge on the suppression motion excluded the Massachusetts records from use as impeachment evidence without further proofs, he did not preclude consideration of them at the time of sentencing, where the standard of proof was by a preponderance of the evidence. We also note that defendant did not testify at trial, making the pretrial ruling moot. He did not testify at the time of sentencing to rebut the Massachusetts records and raise a fact dispute as to whether he had been convicted of a weapons offense. Thus, we find no error in the judge's ruling.