June 15, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL HARDINA, A/K/A JIMMY GATTONE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-01-0044.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2012 -
Before Judges Lihotz and Waugh.
Defendant Daniel Hardina appeals from his conviction, following a guilty plea, for second-degree possession with intent to distribute cocaine in a quantity of one-half ounce or more, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count one); and one count of third-degree possession with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7(a) (count two), as well as the resulting aggregate sentence of incarceration for five years with an eighteen-month period of parole ineligibility. We affirm the conviction and aggregate sentence, but remand for correction of the judgment of conviction (JOC) to reflect the required merger of offenses.
We discern the following facts and procedural history from the record on appeal.
On the morning of December 28, 2009, Bound Brook Police Sergeant Robert Lavin was assigned to investigate a report that there was a fight in progress at a house on Talmadge Avenue in Bound Brook. When he arrived in the area, he observed a disoriented man, later identified as Hardina, staggering in the middle of the street. Hardina's pants were around his thighs and he was holding his shirt. Lavin observed redness on Hardina's chest and a small abrasion on his forehead. There was a white, powdery residue on his nostrils and mouth.
Lavin directed Hardina to sit on the curb. He asked Hardina what had happened, but his reply was mumbled and indecipherable. At that point, a woman approached from the direction of the house on Talmadge Avenue, yelling that Hardina had taken her necklace.
Lavin placed Hardina in the back of his patrol car and again asked him what had happened. Hardina responded that he and the woman had been "doing some coke" in the house and that the woman had gone "nuts." He also told Lavin that a struggle had ensued, after which the woman chased him as he ran from the house.
Lavin then questioned the woman, who told him that Hardina had assaulted her, and that he had ripped the necklace from her neck and put it in his underpants. When Hardina began vomiting in the patrol car, Lavin called for medical assistance because he was concerned that Hardina might be suffering from a cocaine overdose.
When the ambulance arrived, the EMTs rendered medical assistance, put Hardina on a gurney, and placed him in the back of the ambulance. Lavin requested the EMTs to check Hardina's underpants for the necklace, which was not found. However, during the search, the EMTs found a bag of cocaine and a smaller bag of crack cocaine. At that point, Lavin placed Hardina under arrest. The ambulance transported him to the hospital.
Hardina was indicted in January 2010. He was also charged with two other offenses: the disorderly persons offense of simple assault, contrary to N.J.S.A. 2C:12-1(a)(1), and the petty disorderly persons offense of disorderly conduct, contrary to N.J.S.A. 2C:33-2(a)(1). He filed a motion to suppress the evidence, which was the subject of an evidentiary hearing in July 2010. The motion was denied. We denied Hardina's motion for leave to appeal.
Hardina pled guilty to both counts of the indictment on November 5, 2010. As part of the plea agreement, the State offered to recommend an aggregate sentence of five years incarceration with an eighteen-month period of parole ineligibility, and also promised not to seek an extended term. On December 17, 2010, Hardina was sentenced in conformity with the plea offer, with the two sentences concurrent to each other and to a related VOP. The other charges were dismissed. This appeal followed.
Hardina raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING MR. HARDINA'S MOTION TO SUPPRESS EVIDENCE RECOVERED DURING A SEARCH OF HIS PERSON UNDER THE SEARCH INCIDENT TO ARREST EXCEPTION TO THE WARRANT REQUIREMENT BECAUSE THE SEARDCH PRECEDED HIS ARREST.
POINT II: THE SENTENCE IMPOSED ON MR. HARDINA WAS IMPROPER AND MANIFESTLY EXCESSIVE.
We turn first to Hardina's argument that the search was unlawful because it preceded the arrest.
The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:
[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. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
An 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." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid. [State v. Elders, 192 N.J. 224, 243-44 (2007).]
However, our review of the trial judge's legal conclusions is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010) (citing State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010), aff'd, 206 N.J. 39 (2011)), certif. denied, 205 N.J. 78 (2011).
Under the Fourth Amendment of the United States Constitution and 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) (citing State v. Alston, 88 N.J. 211, 230 (1981)). Under both the federal and state constitutions, "judicially-authorized search warrants are strongly preferred before law enforcement officers conduct a search." State v. Johnson, 193 N.J. 528, 552 (2008) (citing Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 742 (1984); Elders, supra, 192 N.J. at 246).
Indeed, "[b]ecause our constitutional jurisprudence generally favors warrants based on probable cause, all warrantless searches or seizures are 'presumptively unreasonable.'" Ibid. (quoting Elders, supra, 192 N.J. at 246). When police conduct a search without a warrant, the State bears the burden of demonstrating that an exception to the warrant requirement applies. State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). If the State fails to sustain that burden, the search is invalid. Alston, supra, 88 N.J. at 230.
Searches incident to a lawful arrest are a well-established exception to the warrant requirement. State v. Pena-Flores, 198 N.J. 6, 19 (2009). Contrary to Hardina's assertion, the arrest need not precede the search if the police have a right to arrest at the time of the search. As the Supreme Court explained in State v. O'Neal, 190 N.J. 601, 614-15 (2007), [a]fter the police stopped defendant, they could have immediately placed him under arrest, searched him, and seized the bag of drugs as a search incident to a lawful arrest. See State v. Eckel, 185 N.J. 523, 530 (2006) (citing Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969)). The fact that the police searched and removed the drugs before placing defendant under arrest does not alter the outcome. When the police search an individual before placing him under arrest "as part of a single uninterrupted transaction, it does not matter whether the arrest precedes the search." State v. Bell, 195 N.J. Super. 49, 58 (1984) (citing State v. Doyle, 42 N.J. 334, 343 (1964)). It is the "right to arrest," rather than the actual arrest that "must pre-exist the search." Doyle, supra, 42 N.J. at 342. As long as the right to arrest pre-existed the search, and the "arrest is valid independently of, and is not made to depend on, the search or its result," the search will not be invalidated "simply because in precise point of time the arrest does not precede the search." Id. at 343; see also Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 2564, 65 L. Ed. 2d 633, 645-46 (1980) ("Where the formal arrest followed quickly on the heels of the challenged search . . ., we do not believe it particularly important that the search preceded the arrest rather than vice versa."); [State v. Moore, 181 N.J. 40, 47 (2004)] (holding that search and seizure incident to arrest was proper because probable cause existed after police observed drug transaction in high-crime area). We conclude that the police had probable cause to arrest defendant for a drug offense, and the seizure of the drugs during the search that preceded the arrest was lawful.
Under O'Neal, id. at 613-14, the test is objective rather than subjective, so the inquiry is whether Lavin had probable cause to arrest Hardina, and not whether he actually intended to do so at the time of the search.
"Probable cause [for a warrantless arrest] exists if at the time of the police action there is a well[-]grounded suspicion that a crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211 (2001) (internal quotation marks and citation omitted). By the time of the search, Lavin had observed Hardina acting erratically and with white powder around his nostrils, and Hardina had admitted that he had just been using cocaine. Those facts provided probable cause for an arrest for violation of N.J.S.A. 2C:35-10(a) (possession of a controlled dangerous substance (CDS)) and N.J.S.A. 2C:35-10(b) (use and being under the influence of CDS). In addition, the woman with whom Hardina had been using the cocaine had accused him of assaulting her and taking her necklace. Those facts provided probable cause for an arrest for violation of N.J.S.A. 2C:12-1(a) (assault) and N.J.S.A. 2C:20-3(a) (theft), and potentially N.J.S.A. 2C:15-1(a)(1) (robbery). As noted above, Hardina was ultimately charged with assault and disorderly conduct.
Because Lavin had probable cause to arrest Hardina prior to asking the EMTs to search him, the search was a lawful search incident to an arrest. The motion judge properly denied the motion to suppress.
Hardina argues that the judge should have merged the two counts of the indictment at sentencing and imposed a single sentence pursuant to N.J.S.A. 2C:1-8(a)(1). The State concedes that there should have been a merger at sentencing. Consequently, we remand for correction of the JOC to reflect a merger of count two with count one.
Hardina also argues that the sentence imposed was excessive because the trial judge imposed a period of parole ineligibility and did not sua sponte exercise his authority to waive that requirement under N.J.S.A. 2C:35-7(b). Hardina did not request such a waiver at the time of sentencing. Having reviewed the issue, we see no error.
In summary, we hold that the trial judge properly denied the motion to suppress the evidence and we affirm Hardina's conviction. We remand for merger of the two counts and correction of the JOC.
Affirmed in part, and remanded in part.
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