August 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ADAM MASKELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-08-1150.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 9, 2011
Before Judges Fuentes, Ashrafi and Nugent.
Appellant filed a pro se supplemental brief.
Defendant, Adam Maskell, appeals from his conviction and sentence for various drug offenses and terroristic threats. He also challenges the order denying his motion to suppress evidence seized from his home by the police officers who executed a "no-knock" search warrant. We affirm.
On August 2, 2006, an Ocean County grand jury charged defendant with second degree possession with intent to distribute a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count one); third degree possession of a CDS, cocaine, N.J.S.A. 2C:35-10a(1) (counts two, five and eight); third degree possession with intent to distribute a CDS, cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (counts three, six and nine); third degree distribution of a CDS, cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (counts four, seven and ten); and third degree terroristic threats, N.J.S.A. 2C:12-3(a) (count eleven).
After the trial court denied defendant's motions to suppress evidence seized from his home and evidence resulting from electronic intercepts, defendant pleaded guilty to all counts of the indictment. On April 24, 2009, after appropriate mergers, the court sentenced defendant to a six-year term of imprisonment on count one, three concurrent four-year terms of imprisonment on counts four, seven and ten, and a consecutive three-year term of imprisonment on count eleven, resulting in an aggregate sentence of nine years. The court also imposed appropriate fines and penalties.
On August 7, 2009, the trial court denied defendant's motion to reconsider his sentence, and issued a conforming order on August 12, 2009. On appeal defendant argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE RECOVERED FROM DEFENDANT'S RESIDENCE . . . PURSUANT TO A NO-KNOCK WARRANT AS THE NO-KNOCK WARRANT WAS UNJUSTIFIED AND UNCONSTITUTIONAL.
THE EVIDENCE RECOVERED FROM THE SEARCH OF DEFENDANT'S RESIDENCE MUST BE SUPPRESSED AS THE NO-KNOCK WARRANT WAS INVALID IN THAT THE AFFIDAVIT PREPARED IN SUPPORT OF THE WARRANT CONTAINED MATERIAL OMISSIONS INCLUDING THE FACT THAT INVESTIGATOR VANDEZILVER HAD CONDUCTED AN UNDERCOVER PURCHASE OF CDS FROM DEFENDANT AND THAT THE POLICE HAD CONDUCTED A CONTROLLED BUY USING A CONFIDENTIAL INFORMANT.
THE SENTENCE IMPOSED [ON] DEFENDANT'S CONVICTION WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.
THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO A SENTENCE ON THE TERRORISTIC THREAT CHARGE CONSECUTIVE TO THE SENTENCE IMPOSED ON THE OTHER CHARGES IN THE INDICTMENT.
Defendant filed a supplemental pro se brief in which he argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE NO-KNOCK SEARCH WARRANT, THE NO-KNOCK PROVISION WAS UNREASONABLE AND IN VIOLATION OF THE DEFENDANT'S FOURTH AMENDMENT CONSTITUTIONAL RIGHTS. THE AFFIANT FAILED TO ESTABLISH C.I. 06-22'S RELIABILITY, BASIS OF KNOWLEDGE AND VERACITY. THE AFFIANT'S STATEMENT THAT INDIVIDUALS WITH CRIMINAL RECORDS ARE MOTIVATED TO DESTROY EVIDENCE IS BOILERPLATE LANGUAGE AND DID NOT SATISFY THE DESTRUCTIBILITY OF EVIDENCE FACTOR. THE CORROBORATION OF C.I. 06-22'S TIPS DID NOT REVEAL THAT THE DEFENDANT WOULD POSE A RISK TO OFFICERS' SAFETY AND THE DEFENDANT DOES NOT HAVE A VIOLENT CRIMINAL RECORD AS THE STATE FALSELY ASSERTED.
Defendant was arrested on June 7, 2006, after police executed a no-knock warrant, searched his home, and seized drugs, drug paraphernalia, and money. In the affidavit submitted in support of the warrant application, Ocean County Narcotics Strike Force Investigator Harry Vandezilver detailed his extensive experience in drug enforcement, including his involvement in over 1,000 arrests of persons for narcotics violations. Vandezilver averred that during the week of May 21, 2006, he and Investigators Cecchini and LaRocca met with a confidential informant (C.I.) who told them defendant was distributing cocaine and marijuana from his apartment. The C.I. provided defendant's street address and apartment number, and told the investigators that defendant had recently moved into the apartment. According to the C.I., defendant said "he [was] aware the police [were] watching him" and "he was prepared for the police if they come into his apartment and would take whatever steps necessary to prevent the police from taking him into custody." The C.I. provided a physical description of defendant that the police subsequently verified. During the week of May 28, 2006, Vandezilver surveilled defendant's apartment and on one occasion during a forty-five minute interval, he saw six individuals arrive at defendant's home, at separate times, stay briefly, then leave. Based on his experience, he believed the activity was indicative of drug trafficking.
Vandezilver further attested that on May 31, 2006, LaRocca, wearing concealed monitoring equipment, called defendant's cell phone, went to defendant's apartment, and purchased cocaine with previously recorded money. The transaction was monitored by another investigator.
On June 5, 2006, LaRocca returned to defendant's apartment and purchased crack cocaine. The transaction was electronically monitored and LaRocca again used pre-recorded money to make the purchase.
The affidavit also included defendant's prior criminal history and a request for a no-knock search warrant:
This affiant further requests the Court to issue a "No-Knock" search warrant for the aforementioned residence because Controlled Dangerous Substances, due to the size and manner in which they are packaged, can be easily destroyed if the accused have prior knowledge law enforcement officers are present in the residence and due to the fact that persons dealing in controlled dangerous substances are often in possession of dangerous weapons. In my training and experience, this affiant knows that dealers of CDS are often prepared to destroy any available CDS once law enforcement is observed at their residence. This preparedness includes but is not limited to flushing cocaine or marijuana down the toilet or rinsing it down a sink and destroying it once a police presence is noted and entry is not made immediately. This affiant is aware that such action takes only a few seconds and could be easily accomplished without the element of surprise afforded by a "No-Knock" warrant. Further, since Adam Maskell has prior convictions it has been this affiant's experience that if those individuals are aware that they face an extended term of imprisonment they are therefore motivated to destroy evidence or use violence to thwart law enforcement, which could be accomplished without the element of surprise afforded by a "No-Knock" warrant. In addition, Adam Maskell's prior record and convictions indicate to this affiant, based on my training and experience, that he may be more willing to use force and resist law enforcement. Based on this affiant's training and experience, those individuals with prior convictions are aware that subsequent arrests and convictions are more likely to result in a long sentence to state prison should they be convicted. Therefore, based on this affiant's training and experience, and the criminal record of Adam Maskell lead this affiant to believe that there would exist a risk of harm to those officers executing the warrant without the element of surprise afforded by a "No-Knock" warrant. Based on the foregoing, specifically the statement by Adam Maskell to C.I. 06-22 in paragraph 4 of this Affidavit, it is the affiant's belief that Adam Maskell has a propensity for violence and a willingness to oppose compliance with Law Enforcement Authority, by taking whatever actions he feels necessary to prevent himself from being arrested, which poses a risk of harm to those Officers executing the search warrant without the element of surprise afforded by a "No-Knock" search warrant.
Based on the information in the affidavit, the court issued a no-knock search warrant for defendant's apartment. On June 7, 2006, LaRocca made a third controlled buy from defendant, after which the police executed the warrant and seized money, drugs, a scale, and a pipe with what appeared to be marijuana residue.
On January 26, 2007, the court heard defendant's motion to suppress evidence seized from his home when investigators executed the no-knock warrant. The judge concluded that the no-knock provision in the warrant was needed to prevent defendant from destroying evidence and ensure the safety of the investigators. The judge stated:
There is no question that the request for the no-knock is outlined in page nine and the basis for it is that they're looking for controlled dangerous substances in this residence, that they can be easily destroyed if the accused had prior knowledge [of] law enforcement officers being present they can destroy it. And they talk about how quickly it can be destroyed.
So what we have in this situation is the no-knock request that spoke in terms of the defendant's background, the prior convictions, the understanding that extended terms of imprisonment could be faced by someone who has a prior history, and more importantly, the prior record and convictions indicate that they may be more than willing to use force and to resist law enforcement. [T]here's also an arrest at the time of this warrant - - or was an arrest at the time of the warrant and a charge for contempt of Court. So there is an indication that there is an unwillingness on the part of this defendant to recognize law and order as something that [he has] to abide by.
Critical to this entire warrant is the information that is contained on pages three and four that he had recently moved into the apartment. That was corroborated with the police. That he further stated in conversation he was prepared for police if they come into [his] apartment and would take whatever steps necessary to prevent the police from taking him into custody. Further, he was aware that police . . . [were] watching him and he is ready for them if they come into his apartment.
I can in no way, shape, or form give that or those statements the interpretation that this means that he was just simply contacting friends to provide him with bail money. I find this is a direct threat to law enforcement that he is prepared, he is poised, and he is ready to take care of and take out anyone who attempts to enter his home and take him into custody. In that particular circumstance the no-knock is not only justified, it is absolutely imperative to the protection of law enforcement for doing their job in ferreting out drug dealers and placing them under arrest and in custody.
The scope of review on appeal is very narrow. "'[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). However, an appellate court "owes no deference to the trial court in deciding matters of law." Id. at 337 (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).
"The requirement that [police] knock and announce their presence before entering a dwelling predates our federal and State Constitutions." State v. Johnson, 168 N.J. 608, 615 (2001). Exceptions to the longstanding knock-and-announce rule exist when "'(1) immediate action is required to preserve evidence; (2) the officer's peril would be increased; or (3) the arrest would be frustrated.'" Id. at 617 (quoting State v. Fair, 45 N.J. 77, 86 (1965)). Although the showing necessary to justify a no-knock warrant "is not high," Id. at 624 (internal quotations omitted), the exceptions to the knock-and-announce requirement are carefully circumscribed:
First, to justify a no-knock warrant provision, a police officer must have a reasonable, particularized suspicion that a no-knock entry is required to prevent the destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence. Second, the police officer must articulate the reasons for that suspicion and may base those reasons on the totality of the circumstances with which he or she is faced. Third, although the officer's assessment of the circumstances may be based on his or her experience and knowledge, the officer must articulate a minimal level of objective justification to support the no-knock entry, meaning it may not be based on a mere hunch. [Id. at 619.]
"To satisfy the destructibility-of-evidence exception to the . . . rule, the police must articulate some reasons specific to the crime, to the person under investigation, or to some other permissible factor that leads them reasonably to believe that destruction of evidence is more than a hypothetical possibility." Id. at 620. Concerning the officers' safety, we have recognized that suspects with multiple drug convictions facing a likely extended prison sentence have "a strong incentive to resist capture by the police." State v. Jones, 179 N.J. 377, 408 (2004). "Past evidence of violent criminal behavior, particularly behavior directed towards law enforcement officers, is plainly probative of the heightened risk posed to officers' safety." Id. at 402.
Here, Vandezilver articulated specific reasons why the police needed the no-knock warrant. Those reasons were based not only on Vandezilver's experience and knowledge, but also on objective evidence the police developed by verifying the C.I.'s information and making two controlled cocaine buys. According to Vandezilver's affidavit, a computerized criminal record check revealed defendant had eight prior arrests and four convictions for possessing marijuana, a conviction for knowingly leaving the scene of an accident, and a conviction for eluding police.
More importantly, defendant had made it known that he was prepared for the police and would take whatever steps were necessary to prevent them from taking him into custody. He was aware the police were watching him and he was ready for them if they came into his apartment. The trial court determined that those statements indicated a defendant with a mindset and attitude that posed a distinct threat to the police. Considering the totality of circumstances, we find no reason to disturb the trial court's ruling that the investigator's affidavit justified the no-knock warrant.
Defendant contends that Vandezilver omitted material facts from his affidavit. Specifically, defendant argues that the affidavit failed to include reference to an undercover purchase made by Vandezilver on May 31, 2006, and other undercover purchases made by LaRocca on June 5 and June 7, 2006. Additionally, defendant argues that the affidavit omitted that a C.I. had been involved in the transactions.
To support his factual allegations, defendant cites to his motion to suppress electronic intercepts.*fn1 The reference to that motion is to statements made by defendant while arguing the case on his own behalf. There is no reference to any sworn testimony. Moreover, defendant did not argue that Vandezilver made the purchases, but instead argued that LaRocca and the C.I. made the purchases.
Where, as here, defendant seeks relief on the ground that a material misrepresentation led to the issuance of the warrant, defendant was required to make "a substantial preliminary showing that [the affiant], either deliberately or with reckless disregard for the truth, failed to apprise the issuing judge of material information which, had it been included in the affidavit, would have militated against issuance of the search warrant."
[State v. Marolda, 394 N.J. Super. 430, 441 (App. Div.) (quoting State v. Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987)), certif. denied, 192 N.J. 482 (2007).]
Defendant has failed to make such a showing. He has failed to cite to any competent evidence in the record to demonstrate the alleged material omissions. More importantly, he has not demonstrated how LaRocca's controlled buy on the day the warrant was executed, or the fact that the C.I. participated in the buys, would have militated against issuance of the search warrant.
Defendant also argues for the first time on appeal that Vandezilver's affidavit did not establish the C.I.'s reliability. Although defendant has not properly preserved this issue, we nevertheless address it and find it to be without merit. Police may corroborate veracity and validate the truthfulness of an informant's tip through independent corroboration of the information provided by the informant. See Jones, supra, 179 N.J. at 390. Here, the narcotics strike force investigators corroborated virtually all of the information provided by the C.I. They corroborated defendant's description, where he lived, that he had recently moved into the apartment, and that he was selling cocaine and marijuana. The police made two controlled drug purchases that corroborated the C.I.'s information. The police corroboration of the C.I. information adequately established the C.I.'s reliability.
Defendant next argues that his sentence was excessive. A court has wide discretion when imposing a sentence, but the sentence must not be manifestly excessive nor unduly punitive. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984). In determining the appropriate sentence to be imposed, the sentencing court must consider statutorily enumerated aggravating and mitigating circumstances, N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record on appeal. State v. Kruse, 105 N.J. 354, 360 (1987). "[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." O'Donnell, supra, 117 N.J. at 216. When trial courts "exercise discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court]," we may not second-guess the trial court. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations omitted).
When reviewing the sentence imposed by a trial court, we must determine first, whether the correct sentencing guidelines . . . [or] presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of the guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. [State v. Tindell, 417 N.J. Super. 530, 567 (App. Div. 2011) (quoting State v. Roth, 95 N.J. 334, 365-66 (1984)).]
Defendant argues the trial court abused its discretion by failing to articulate, on the record, adequate reasons for imposing a six-year prison term on count one, second degree possession with intent to distribute a CDS, and the four-year terms of imprisonment on counts four, seven and ten, third degree distribution of a CDS. He argues he should have been sentenced to a minimum five-year term on count one, and minimum terms of three years each on counts four, seven and ten.
The trial court found three aggravating factors: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offense of which he has been convicted, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors.
The sentencing court explained that defendant had six minor drug convictions, a conviction for eluding police, and a serious alcohol and drug abuse problem with periods of time when he used marijuana daily. The court noted defendant had also used other drugs such as cocaine, heroin and ecstasy. Those considerations provided ample evidence to support the court's finding of aggravating factors three, six, and nine. See State v. Dalziel, 182 N.J. 494, 502 (2005).
The court acknowledged receiving a letter from defendant that he helped his grandmother who would suffer a hardship if he were incarcerated. The court also acknowledged receiving a letter from defendant's grandmother "indicating the help which Mr. Maskell provides for her[.]" Mitigating factors include that "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-1(b)(11). There is nothing in the record to suggest that defendant's grandmother was his dependent. Moreover, defendant's self-serving letter did not establish that his grandmother would suffer an excessive hardship if he were incarcerated. The court did not abuse its discretion either in failing to find mitigating factors, or by giving the weight it did to the aggravating factors. Those considerations adequately supported the sentence.
Finally, defendant contends that he should not have been sentenced consecutively on the charge of terroristic threats. When a defendant receives multiple sentences for imprisonment for more than one offense, they may run concurrently or consecutively, "as the court determines at the time of sentence." N.J.S.A. 2C:44-5(a). State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), provides guidelines for evaluating when consecutive or concurrent sentences are appropriate.
The court considered the factors enumerated in Yarbough. The court determined the terroristic threat to be independent of the drug related offenses. The court noted that the terroristic threat made by defendant to a prosecutor's investigator involved an act of violence. Finally, the court considered that there can be no free crimes in a system for which punishment shall fit the crime, and its findings were amply supported by the evidence in the record.