March 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CURTIS JONES, A/K/A CURTIS LEE JONES, RONNIE R. JONES, CURTIS JONES, AND CURTIS L. JONES, SR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 07-03-00180, 08-05-00371, 08-08-00652, and Accusation No. 08-10-01557.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2011 -
Before Judges Cuff and Waugh.
Following denial of a motion to suppress evidence seized in a search, defendant Curtis Jones pled guilty to five counts from three indictments and one accusation, specifically: third degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1); second degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2); third degree possession of heroin and/or cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3); second degree distribution of heroin on or within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1; and third degree possession of CDS, N.J.S.A. 2C:35-10a(1). Judge Heimlich sentenced defendant in accordance with the plea agreement to an aggregate term of nine years in prison subject to a four-and-one-half-year period of parole ineligibility.
On appeal, defendant raises the following arguments: Point 1 The trial court should have granted defendant's motion to suppress and excluded the evidence seized from defendant, warranting vacation of the subsequent plea based on the evidence. Point 2 The trial court erred in denying defendant's motion to withdraw his guilty plea before sentencing.
Point 3 Defendant's sentence is improper and excessive.
In pro se supplement briefs, defendant argues:
POINT I THE ARREST WARRANT COMPLAINT SHOULD BE DISMISSED ON THE GROUNDS IT VIOLATES U.S.C.A. 4, 14.
POINT II THE COURTS DEVIATED FROM THE WRITTEN PLEA AGREEMENT. PLEA AGREEMENT IS AMBIGUOUS IN STATEMENT OF SENTENCE AND DEFENDANT WAS SENTENCED OUTSIDE OF STATUTORY MAXIMUM STATED ON PLEA AGREEMENT. and
Point I COURT DEVIATED FROM DEFENDANT'S UNDERSTANDING OF THE WRITTEN PLEA AGREEMENT, SENTENCING DEFENDANT BEYOND DEFENDANT'S EXPECTATION.
Point II THE ARREST WARRANT COMPLAINT SHOULD BE DISMISSED ON THE GROUNDS IT VIOLATES U.S.C.A. 4, 14.
In support of the application for a search warrant to search a car and two residences in Plainfield, Detective Joseph Mulligan reported information received from a confidential informant (CI). The CI described defendant as a forty to forty-five-year-old black male with a medium complexion, a heavy build (approximately 220 pounds) and about 5'10" tall. He related that the CI had observed defendant distribute CDS to several persons at two addresses in Plainfield: one on West Fourth Street and the other on Prescott Place. The detective also stated that the CI informed him that defendant received orders for CDS from a cell phone, which number the CI provided, and delivered the CDS in a black 2005 Nissan Pathfinder or black Ford pickup truck.
Detective Mulligan also related in his affidavit that the CI participated in three "controlled buys" of CDS from defendant in October 2006. During one transaction, the police observed defendant leave the West Fourth Street residence, get into the Nissan Pathfinder, and meet the CI at the pre-arranged location. In the second transaction, defendant left the Prescott Place residence, entered the black Ford pickup truck, and met the CI at the pre-arranged location. In the third transaction, the CI met defendant at the West Fourth Street residence.
Detective Mulligan also reported that he conducted independent surveillances of both residences and observed defendant leave one of the residences, drive one of the described vehicles, and meet persons seven or ten times. At the meeting place, the unknown person entered defendant's vehicle for one or two minutes. In some instances, when the person who met defendant left defendant's car, he looked into his hands as if to inspect an article. Detective Mulligan also observed persons entering the front door of both residences and leave moments later. In some instances, the detective observed these persons look into their hands as if inspecting its contents.
Finally, the detective reported that defendant's mother-in law was the subscriber of electric service at the West Fourth Street residence, defendant was the registered owner of the Nissan Pathfinder, and defendant's wife was the registered owner of the Ford pickup truck.
Defendant argues that the application for the search warrant contained insufficient information for the judge to find probable cause to support issuance of the warrant. Defendant contends the State did not establish the reliability of the CI, the police did not conduct a proper surveillance, the police lacked sufficient information about defendant's connection to the residences, and the police did not reveal the results of laboratory tests of the seized CDS. Following an evidentiary hearing, Judge Fasciale characterized the information contained in the affidavit in support of the search warrant about the reliability of the information reported by the CI as "weak." Nevertheless, the judge also found the information provided by the CI contained detail, such as the cell phone number and the manner of distribution, that went "beyond what a casual observer could witness." The judge also found that the three controlled buys and the extensive surveillance of defendant and both residences corroborated the information provided by the CI.
"Consistent with the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, police officers must obtain a warrant from a neutral judicial officer before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. Deluca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)). "[A] search executed pursuant to a warrant is presumed to be valid," State v. Jones, 179 N.J. 377, 388 (2004), and a reviewing court must "accord substantial deference to the discretionary determination resulting in the issuance of the warrant," State v. Marshall, 123 N.J. 1, 72 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).
The defendant bears the burden of proving the invalidity of a search executed pursuant to a warrant, i.e., the warrant lacked probable cause based on the facts provided or the search was otherwise unreasonable. State v. Valencia, 93 N.J. 126, 133 (1983). Hence, "when the adequacy of the facts . . . appears to be marginal, the doubt should ordinarily be resolved by sustaining the search." State v. Kasabucki, 52 N.J. 110, 116 (1968) (citing United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684, 689 (1965)).
Prior to "issuing the warrant, the judge must be satisfied that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched" based on the totality of the circumstances. State v. Sullivan, 169 N.J. 204 (2001); see State v. Keyes, 184 N.J. 541, 553 (2005) ("[S]earch warrants must be based on sufficient specific information to enable a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe that a search would yield evidence of past or present criminal activity.") (citing State v. Novembrino, 105 N.J. 95 120 (1982)). Although probable cause cannot be precisely defined, Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000), courts have interpreted it to require "less than legal evidence necessary to convict though more than mere naked suspicion," State v. Mark, 46 N.J. 262, 271 (1966). "Probable cause is a flexible, non-technical concept. . . . It is a suspicion of guilt that is well-grounded; a reasonable basis for a belief that a crime has been or is being committed. A finding of probable cause may rest upon evidence not competent at a criminal trial." Kasabucki, supra, 52 N.J. at 116 (citations omitted). Hence, [t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. [Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983).]
A court may issue a search warrant based on information received from a CI, "provided that a substantial basis for crediting that information is presented." Jones, supra, 179 N.J. at 389 (citations omitted). Under the totality of circumstances test, "courts consider an informant's veracity and his or her basis of knowledge to be the two most important factors in evaluating the informant's tip." Sullivan, supra, 169 N.J. at 212 (citing State v. Smith, 155 N.J. 83, 93, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998)). Additionally, "[b]ecause the information contained in an informant's tip is hearsay . . . [i]ndependent [police] corroboration is necessary to ratify the informant's veracity and validate the truthfulness of the tip." Smith, supra, 155 N.J. at 95.
A CI's "veracity may be shown by demonstrating that the informant proved to be reliable in previous police investigations"; however, such proof is not conclusive. Sullivan, supra, 169 N.J. at 213 (citing Novembrino, supra, 105 N.J. at 123). Moreover, [t]he current evidence must give the court an opportunity to make an independent evaluation of the informant's present veracity. In addition, a conclusory statement that the affidavit is "based on information [the police] received from a confidential reliable informer" is not sufficient to establish the informant's veracity. Similarly, a statement that the police believe the informant is reliable because he "did a job for [an officer] in the past," without additional information, will not firmly establish veracity. [Keyes, supra, 184 N.J. at 555 (internal citations omitted, alternations in original).]
Under the basis of knowledge prong, if the CI fails to "expressly or clearly" identify the source of his knowledge, Smith, supra, 155 N.J. at 194, it "may nonetheless be inferred from the level of detail and amount of hard-to-know information disclosed in the tip," State v. Zutic, 155 N.J. 103, 111 (1998) (citing Smith, supra, 155 N.J. at 95). Hence, "[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 related to the police." Smith, supra, 155 N.J. at 95.
Notably, "a deficiency in one [factor] 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." Gates, supra, 462 U.S. at 233, 103 S. Ct. at 2329, 76 L. Ed. 2d at 545; Zutic, supra, 155 N.J. at 110-11. Likewise, if the CI "fails to demonstrate sufficient veracity or basis of knowledge, a search warrant issued on the basis of the tip may still pass muster if other facts included in a supporting affidavit justify a finding of probable cause[,]" Jones, supra, 179 N.J. at 390, such as: a controlled drug buy performed on the basis of the tip, positive test results of the drugs obtained, records confirming the informant's description of the target location, the suspect's criminal history, and the experience of the officer who submitted the supporting affidavit.
Although no corroborating fact, by itself, conclusively establishes probable cause, a successful controlled buy typically will be persuasive evidence in establishing probable cause. [Keyes, supra, 184 N.J. at 556-57 (quotations and internal citations omitted).]
In fact, "when the police have performed a successful controlled drug buy [the Court has] found that 'even one additional circumstance might suffice, in the totality of the circumstances, to demonstrate probable cause.'" Id. at 556 (quoting Jones, 179 N.J. at 392). A court may also consider a suspect's criminal history when determining probable cause to issue a search warrant. Jones, supra, 179 N.J. at 390-91.
In Sullivan, the police officers received a tip from a CI who described the defendant and provided the defendant's telephone number and apartment address. 169 N.J. at 207. The CI performed two controlled drug purchases under the surveillance of the officers. Id. at 208. Prior to the CI entering the defendant's apartment, the officers searched the CI and his vehicle to determine he held no other drugs or money. Ibid. The officers observed the CI enter the identified apartment building and exit several minutes later. Ibid. The officers followed the CI, who drove to a predetermined meeting location and delivered to the officers the vials containing cocaine. Ibid. The CI described the defendant's apartment and the cocaine transaction. Ibid. The officers again searched the CI and his vehicle to determine the CI had no other contraband or money. Ibid. The officers additionally confirmed the number the CI provided was the number assigned to the defendant's apartment. Ibid. A magistrate issued a search warrant based on these facts. Ibid. On appeal, the defendant asserted the CI lacked veracity, but "acknowledge[d]" the CI's basis of information was "not in issue in th[e] case." Id. at 214.
The Court first determined that "'[a] controlled purchase of narcotics, supervised by the police, provides probable cause to issue a search warrant.'" Id. at 215 (citing Commonwealth v. Desper, 419 Mass. 163, 168 (1994)). The Court laid out four procedures the officers should follow: (1) a police officer meets the informant at a location other than the location where it is suspected that criminal activity is occurring; (2) the officer searches the informant to ensure the informant has no drugs on his person and (usually) furnishes the informant with money to purchase drugs; (3) the officer escorts or follows the informant to the premises where it is alleged illegal activity is occurring and watches the informant enter and leave those premises; and (4) the informant turns over to the officer the substance the informant has purchased from the residents of the premises under surveillance. [Id. at 215 (citing Desper, supra, 419 Mass. at 168 (quotations and internal citations omitted)).]
In Sullivan, even though "the informant had no apparent history of providing reliable or trustworthy information to the police," the Court found the warrant was properly issued. Id. at 214. Additionally, the Court found the officer's corroboration, including evidence that the telephone number matched the apartment address and the laboratory results confirmed the drugs were cocaine, "served as sufficient indicia of the informant's reliability." Id. at 216. Although the Court noted the officers only observed the CI enter the building, not the defendant's apartment, that fact did not prohibit the magistrate judge from finding probable cause; rather, it was "one factor to be considered by the issuing judge under the totality-of-circumstances test." Ibid.
Here, despite the absence of any information about the reliability of the CI, the several efforts of detectives to confirm the information provided by the CI clearly established probable cause that defendant was engaged in the distribution of CDS. These efforts included three controlled buys and independent surveillance of defendant. The latter effort produced substantial evidence that defendant utilized both residences as the base of an on-going CDS distribution enterprise. Judge Fasciale properly denied defendant's suppression motion.
Defendant also argues that his motion to withdraw his guilty plea prior to sentencing should have been granted. He contends that his guilty plea was coerced. He also contends that the State breached the plea agreement when it did not request defendant's release without bail prior to imposition of sentence and did not adhere to the agreement that the sentence on Indictment Nos. 08-05-00371 and 08-08-00652 would not exceed five years imprisonment.
A motion to withdraw a guilty plea prior to sentencing will be granted in the interests of justice. R. 3:9-3(e). A motion made pre-sentence is liberally granted. State v. Smullen, 118 N.J. 408, 416 (1990). The decision is committed to the discretion of the judge, State v. Simon, 161 N.J. 416, 444 (1999), but it is not automatically permitted, State v. Slater, 198 N.J. 145, 157 (2009).
The discretion of the judge is not unguided. If a defendant can demonstrate that his plea is based on misinformation that induced him to plead guilty, he will be permitted to withdraw his plea. State v. Taylor, 80 N.J. 353, 365 (1979). Moreover, in Slater, the Court recently provided extensive guidance in evaluating an application to withdraw a guilty plea. 198 N.J. at 157-61. The Court re-affirmed the four basic factors informing a decision to permit a defendant to withdraw a guilty plea. Ibid. A judge must determine whether "the defendant has asserted a colorable claim of innocence," id. at 158; "the nature and strength of defendant's reasons for withdrawal," id. at 159; whether the plea was the product of a plea bargain or plea agreement, id. at 160; and whether withdrawal will "result in unfair prejudice to the State or unfair advantage" to the defendant, id. at 161. The defendant bears the burden to present not only a "plausible basis" for the application but also to demonstrate his good faith in wishing to present a defense to the charges. Id. at 156. The defendant must show more than a change of heart, id. at 157, or "buyer's remorse," State v. Hayes, 205 N.J. 522, 526 (2011).
Here, defendant has not presented a colorable claim of innocence, does not demonstrate a good faith desire to defend the charges, or address any prejudice to the State. He grounds his motion on a two-part breach of the plea agreement by the State. First, he contends that he was to be released on his own recognizance after entry of his guilty plea until sentencing. Second, he argues that his penal exposure on two of the five counts to which he pled guilty was five years in prison. The record does not support either claim and defendant failed to demonstrate a good faith commitment to address the merits of the eleven charges pending against him.
On September 29, 2008, defendant pled guilty to four charges from three indictments in accordance with a plea agreement. Defendant responded he understood that the recommended aggregate sentence was nine years with a fifty-four month period of parole ineligibility. When the judge stated he would repeat the terms of the plea agreement, defendant responded "I understand." Defendant executed three plea forms for each indictment. Each plea form, other than the form for the plea to the accusation, states the prosecutor agreed to recommend nine years with a fifty-four month period of parole ineligibility concurrent to a second indictment and concurrent to a six-year term of imprisonment with a thirty-six-month period of parole ineligibility on a third indictment.*fn1 Each plea form states that defendant will be sentenced after January 1, 2009. There is no reference to a reduction in bail or release on his own recognizance pending sentencing in two of the three plea forms. The plea form associated with Indictment 07-08-180 states "judge agreed to Subin.*fn2 "
There was discussion at the plea proceeding about release on his recognizance pending sentencing; however, the State simply stated that it would leave the bail to the discretion of the judge, the judge reduced bail to $10,000 with the 10% option, and the plea proceeding terminated with the bail reduced but not eliminated. Judge Heimlich explained that absent an express agreement between the prosecutor and defendant he would not release defendant without bail due to defendant's extensive prior criminal record.
Contrary to defendant's argument on appeal, there is no support in the record that his attorney or the prosecutor misled him about the recommended sentence or that defendant misunderstood the recommended sentence. Defendant's belief that his sentence on the third degree offenses would not exceed five years seems to be grounded only on his plea form associated with his plea to the accusation to which he pled guilty on October 27, 2008. Furthermore, although there was discussion about his release prior to sentencing, the plea proceeding concluded with simply a reduced bail. Defendant did not raise the bail issue until he filed his motion to withdraw his plea prior to his June 18, 2009 sentencing.
Defendant has by no measure presented a record that supports a finding that the interests of justice will be served by withdrawal. He has not established that he was misled by his attorney or misunderstood the terms of the plea agreement. He has not demonstrated that the State breached the plea agreement. The record clearly suggests that defendant has simply changed his mind.
Finally, defendant argues that his sentence is improper and excessive. Judge Heimlich imposed a sentence that followed the plea agreement. On Indictment No. 07-03-00180, the judge imposed a four-year term of imprisonment for third degree possession of CDS (Count One), and a concurrent nine-year term of imprisonment with a fifty-four month period of parole ineligibility for second degree possession of CDS with intent to distribute (Count Two). On Indictment 08-05-00371, the judge imposed a six-year term of imprisonment with a three-year period of parole ineligibility on third degree possession of CDS with intent to distribute (Count Two). On Indictment No. 08-08-00652, the judge imposed a nine-year term of imprisonment with a fifty-four-month period of parole ineligibility on the second degree possession of CDS within 500 feet of a public housing facility. On Accusation No. 08-10-01557, Judge Heimlich sentenced defendant to five years in prison on the third degree possession of CDS charge. These sentences are concurrent to the sentences imposed on each indictment and the accusation.
We have reviewed the record in light of defendant's arguments and conclude that there is no basis to disturb the sentence imposed. It strictly conforms to the plea agreement and is, therefore, presumptively reasonable. State v. Sainz, 107 N.J. 283, 294 (1987). Moreover, defendant's prior criminal history includes seven prior indictable convictions. The sentence is legal and reasonable.