April 23, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD J. TALLEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-10-1618.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 7, 2012
Before Judges J. N. Harris and Koblitz.
After the trial court denied his motion to suppress evidence in connection with Ocean County Indictment No. 07-10-1618, defendant Ronald J. Talley pled guilty to the one count indictment charging him with third-degree possession of cocaine. N.J.S.A. 2C:35-10a(1). Pursuant to a plea agreement, he also pled guilty to three additional indictments. He pled guilty to count 3 of Ocean County Indictment No. 08-05-357, a fourth-degree charge of possessing a knife when he is a certain person not to have weapons. N.J.S.A. 2C:39-7a. The remaining three fourth-degree counts in that particular indictment were dismissed at sentencing. He also pled guilty to Ocean County Indictment No. 08-05-735, charging third-degree burglary, N.J.S.A. 2C:18-2, and Ocean County Indictment No. 09-02-291 as amended from first-degree robbery to theft from the person, N.J.S.A. 2C:15-1, N.J.S.A. 2C:20-3. Pursuant to the plea agreement, the court imposed an aggregate custodial sentence of six and one-half years in prison with two and one-half years of parole ineligibility. Defendant appeals from the judgment of conviction entered by the court on October 15, 2009. After reviewing the record in light of the contentions advanced on appeal, we affirm.
At the hearing on defendant's motion to suppress, the State produced two Seaside Heights Police Officers, Shawn Heckler and John Dudas, who testified to the following facts. They responded to a burglary report on June 18, 2007, at 5:19 a.m. When the officers arrived, a female neighbor identified herself as the caller. She told them she had seen a black man enter the home by climbing in a window after pushing a window-mounted air conditioner into the house. Officer Heckler observed an open window and saw the air conditioner lying inside on the floor. Both officers heard more than one voice from inside the house. Officer Heckler heard the voices of a man and a woman. Officer Dudas knocked and ordered the occupants to open the door.
Officer Heckler saw through the window that defendant was approaching the front door carrying a clear plastic baggy in his left hand. He recognized defendant, but was unaware that defendant had a legitimate connection to the home. He ordered defendant to show his hands to ensure he did not have a weapon. Defendant put his left hand behind his back and then behind the door. Officer Heckler drew his service weapon and again ordered defendant to show his hands. Defendant opened the door and showed the officer his empty hands.
The officers entered the home. Officer Dudas secured defendant while Officer Heckler looked behind the front door, where he found the baggy containing a rock-like substance he thought was cocaine. Officer Heckler then entered the kitchen, where he saw two individuals seated at a table with crack pipes in front of them. He arrested both individuals. Twenty to thirty minutes later, the homeowner arrived and indicated defendant had permission to enter her home.
Defendant testified that the police knew him from previous encounters at the home. He said he was well-known to the Seaside Heights Police Department because he and his identical twin brother "just are everywhere in Seaside." Defendant testified that he had nothing in his hands when he went to the door. He said the officers told him to open the door and show his hands and he responded, "For what?" He said after entering the house, the officers searched for three or four minutes before finding what was later determined to be .2 grams of crack cocaine. On cross-examination defendant admitted a lengthy criminal record of indictable convictions.
The judge found the police officers' testimony credible and discredited that of defendant.
Defendant raises the following issues on appeal:
POINT I: THE DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE PURPORTED "COMMUNITY AID" ENTRY AND "PLAIN VIEW" SEIZURE WERE PRETEXTS TO CONDUCT AN UNLAWFUL WARRANTLESS INVESTIGATORY SEARCH.
(A) THE ENTRY INTO THE HOME BY OFFICER HECKLER AND OFFICER DUDAS WAS NOT JUSTIFIED AS EMERGENCY AID.
(B) THE STATE FAILED TO PROVE THE FIRST AND SECOND PRONGS OF OFFICER HECKLER'S "PLAIN VIEW" SEIZURE.
POINT II: THE TRIAL COURT MISAPPLIED ITS DISCRETION IN IMPOSING A 5 YEAR CUSTODIAL SENTENCE ON THE DEFENDANT'S PLEA TO POSSESSION OF COCAINE ON INDICTMENT NO. 07-10-1618.
Under the Fourth Amendment of the Federal Bill of Rights and under Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981).
We accept the facts as found by the judge, who believed the testimony of the police rather than defendant. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (findings of a trial judge sitting without a jury "are considered binding on appeal when supported by adequate, substantial and credible evidence."). As the Supreme Court noted in State v. Jose Nunez-Valdez, 200 N.J. 129, 141 (2009), "[a] reviewing court is required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record." The Court added, "[a]n appellate court 'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 244 (2007)) (alteration in original).
After observing defendant on the witness stand and learning that he had numerous prior indictable convictions, the judge deemed his testimony incredible. N.J.R.E. 609. Thus, we review the search at issue using the facts as presented by the two police officers.
The State argues that the emergency aid and plain view doctrines justify the search and seizure of the cocaine found in the baggy behind the door. Under the emergency aid doctrine, police officers may enter a home without a warrant under exigent circumstances "for the purpose of protecting or preserving life, or preventing serious injury." State v. Frankel, 179 N.J. 586, 598 (2004). We must analyze the police actions "in light of what was reasonable under the fast-breaking and potentially life-threatening circumstances that were faced at the time." Id. at 599.
The Supreme Court has described the three-prong test used to determine if the emergency aid exception applies: "(1) the existence of an emergency as viewed objectively (2) a search not motivated by a desire to find evidence and (3) a nexus between the search and the emergency." State v. Cassidy, 179 N.J. 150, 161 (2004) (citation omitted); see also State v. Boretsky, 186 N.J. 271, 280 (2006). The Court explained that "an emergency situation has been deemed to exist [w]hen policemen . . . are confronted with evidence which would lead a prudent and reasonable offic[er] to see a need to act on that information, even if ultimately found erroneous." Cassidy, supra, 179 N.J. at 161 (quotations and citations omitted).
After responding to a report of a burglary by a black man in the early morning hours, Officer Heckler saw the air conditioner on the floor inside the open window, which served as evidence confirming the potentially illegal entry. Both officers heard voices, which could have indicated that the burglar was confronting the resident inside the home. The police were therefore justified under the emergency aid doctrine to enter the house to stop a crime in progress and ensure the people inside were safe. They knocked and a black man answered the door. The man's race further confirmed the neighbor's report. The objective evidence pointed to a genuine emergency. The police entered the home "to render assistance, not to find and seize evidence . . . ." Frankel, supra, 179 N.J. at 600.
The plain view doctrine permits law enforcement to seize evidence found in plain view if the officer entered the home under the emergency aid exception. Id. at 599-600; see also State v. O'Donnell, 408 N.J. Super. 177, 182 (2009), aff'd, 203 N.J. 160 (2010). The plain view doctrine requires that law enforcement (1) "be lawfully in the viewing area," (2) "discover the evidence inadvertently," and (3) "have probable cause to associate the property with criminal activity." State v. Johnson, 171 N.J. 192, 206-07 (2002) (internal quotations omitted).
The police first saw the suspicious baggy in defendant's hand when lawfully investigating a reported burglary. Defendant's initial refusal to show his hands caused the officers to be concerned for their safety. They looked behind the front door where defendant dropped something, which could have been a weapon, and found the baggy. Nothing in the facts as found by the judge supports defendant's position that the police used the emergency aid or plain view doctrines as a subterfuge to conduct an unlawful investigative search.
Defendant also maintains that the judge improperly sentenced him to a five-year custodial sentence for possession of cocaine in Indictment No. 07-10-1618. Defendant was sentenced to two other concurrent five-year sentences. He was additionally sentenced to a two and one-half year term of parole ineligibility on the sentence imposed for third-degree theft, charged in Indictment NO. 09-02-291. He does not dispute the propriety of these other sentences. Although the five-year sentence on the cocaine charge does not appear to affect the time defendant will serve in custody, we nevertheless consider his claim of an excessive sentence on this charge.
In determining the appropriate sentence to be imposed on a convicted individual, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified by N.J.S.A. 2C:44-1(a) and (b). State v. Abdullah, 184 N.J. 497, 506 (2005). The court must then balance them and explain how the sentence was determined so that the reviewing court will have an adequate record from which to review an appeal. Id. at 506-07. If a sentencing court properly identifies and balances the factors, and their presence "is supported by substantial evidence in the record," an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001). If a sentencing court adheres to the sentencing guidelines, the sentence it imposes should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).
In State v. Bieniek, 200 N.J. 601 (2010), our Supreme Court fortified the authority of sentencing judges and issued a reminder to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division:
Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence. [Id. at 612.]
The judge found three aggravating factors to be present: the risk the defendant will commit another offense, his prior record, and the need for deterrence. N.J.S.A. 2C:44-1(a) (3),
(6) and (9). He found two mitigating factors: defendant's conduct did not cause or threaten serious harm, and defendant did not contemplate that his conduct would cause harm. N.J.S.A. 2C:44-1(b) (1) and (2).
Defendant argues that the judge failed to explain how the aggravating and mitigating factors led him to impose a sentence longer than the statutorily authorized minimum sentence. We agree that a sentencing judge should explain the balancing process. The judge indicated in the judgment of conviction that he placed "heavy weight" on the aggravating factors, and indicated when sentencing defendant that he was "clearly convinced that the aggravating factors substantially outweigh the mitigating factors."
Defendant was sentenced for five crimes charged in four indictments. He had a lengthy criminal record consisting of three prior juvenile adjudications, seven adult indictable convictions*fn1 and seven disorderly persons convictions. We accept the judge's conclusion that the extent of defendant's prior criminal involvement and likelihood to reoffend far outweighs the arguable lack of harm in possession of a small amount of CDS. A five-year concurrent sentence on this charge was not excessive.