July 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ABDULLAH LITTLE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-04-1332.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2012
Before Judges Sapp-Peterson and Ostrer.
Defendant appeals from the trial court's order denying his motion to suppress, his subsequent conviction by a jury of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and third-degree possession with the intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3), and his sentence to an aggregate term of five years. We affirm.
Defendant presents the following points on appeal:
THE MOTION TO SUPPRESS WAS ERRONEOUSLY DENIED BECAUSE THE POLICE OFFICERS LACKED REASONABLE SUSPICION OF CRIMINAL ACTIVITY SUFFICIENT TO JUSTIFY THEIR ACTIONS LEADING TO APPELLANT'S UNLAWFUL ARREST.
POINT II DEFENDANT'S MOTION FOR A NEW TRIAL WAS WRONGFULLY DENIED.
POINT III DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE RESULTS OF WHICH COULD WELL HAVE VINDICATED APPELLANT.
POINT IV DEFENDANT'S SENTENCE WAS EXCESSIVE.
Having carefully reviewed the record in light of the applicable legal principles, we are unpersuaded by any of defendant's arguments.
Turning first to the motion to suppress, we do not determine the facts anew. State v. Heisler, 422 N.J. Super. 399, 412 (App. Div. 2011). We defer to the trial court's factual findings, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007). However, we exercise plenary review of the trial court's application of the law to the facts. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).
Guided by those principles, we discern sufficient, credible evidence to support Judge Betty J. Lester's factual findings. Although Judge Lester noted a discrepancy between the police report and the testimony of the sole witness at the suppression hearing, Newark Police Office Orlando Andujar, an experienced narcotics officer, she ultimately credited the officer's observations.
[H]e testified basically that on the date in question [January 27, 2007], he and his partner, who did not testify as a witness, were in two separate patrol cars, marked vehicles, in uniform when they approached the area of 9th Avenue and 14th Streets in the City of Newark. There's a photograph used by the Prosecutor that showed the intersection which included a - what appeared to be a bodega, or some type of a small grocery store in the vicinity, and this is the area where the witness claims that he saw the defendant and another individual engaged in what he believed to be a hand-to-hand transaction, a narcotics transaction.
. . . [W]hat he actually saw was one individual passing currency, paper currency, in the direction of Mr. Little. According to the witness, when the vehicles were seen, the two individuals separated, the person with the money going in one direction, the defendant running in another direction, which caused him to give chase. And according to this witness, during that chase, he saw the defendant reach into his pocket, toss a black pouch which was later retrieved by his partner. That pouch [was] found to contain 35 glass bottles containing narcotics substances.
Officer Andujar also testified that the incident occurred in a "high narcotics area." He could see defendant had an object in his hand as the currency was extended to him, but he could not determine what it was. As defendant began to cross the street, the officer ordered him to stop so the officer could talk to him. Defendant then began to run. The officer tackled defendant after he tossed the pouch, but before it was retrieved. A subsequent search of the other individual revealed he possessed one glass bottle.
Judge Lester found the police had a reasonable and articulable suspicion of illegal activity, justifying their stopping defendant. The seizure of the pouch of drugs was justified as well because it was abandoned. We agree.
We have found that a trained officer's observation of a hand-to-hand transaction in a high-crime area, coupled with the participant's startled reaction and departure from the scene, creates a reasonable and articulable suspicion that a crime was committed. See State v. Ramos, 282 N.J. Super. 19, 21-22 (App. Div. 1995). See also State v. Valentine, 269 N.J. Super. 508, 510-11 (App. Div. 1993) (stop and subsequent search authorized where the defendant conversed with a person in truck, surveiled high crime area, entered the truck briefly, and then left with currency in hand), rev'd on other grounds, 134 N.J. 536 (1994). A defendant's subsequent flight may heighten the suspicion already engendered. State v. Citarella, 154 N.J. 272, 281 (1998).
Also, when a defendant discards property upon the lawful approach of police, or during flight from officers who are acting lawfully, the owner disclaims any privacy interest in the property, which is deemed abandoned and subject to lawful seizure by police. State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006) (defendant abandons stolen Buick and plastic bag inside after fleeing from accident scene); State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999) (defendant who dropped item as police approached abandoned it); State v. Hughes, 296 N.J. Super. 291, 293-94 (App. Div.) (defendant abandoned container of cocaine when he threw it to the curb as police approached), certif. denied, 149 N.J. 410 (1997); State v. Farinich, 179 N.J. Super. 1, 6-7 (App. Div. 1981) (defendant abandoned suitcase at airport while police pursued him), aff'd o.b., 89 N.J. 378 (1982).
The facts in Ramos, supra, are strikingly similar to those here. In a high-crime area, an experienced officer observed the defendant hand an unidentified object to another man, who attempted to hand the defendant currency. Believing that he had witnessed a drug transaction, the officer asked the defendant to approach him. Like Little, the defendant fled immediately. During the chase, the defendant discarded a package that was later determined to contain drugs. We found the circumstances created a reasonable and articulable suspicion of a crime that justified the stop, the pursuit, and the ultimate seizure of the drugs. 282 N.J. Super. at 22-23. Judge Lester correctly reached the same conclusion here.
We also find no error in the court's denial of defendant's motion for a new trial. Defendant argued his due process rights were infringed by the unavailability at trial of Officer Andujar's partner, Sergeant Austin Jackson, who participated in defendant's stop and arrest, and seizure of the drugs.
Defendant had filed a motion for a speedy trial. He was incarcerated after his arrest, unable to post bail. At a pre-trial conference in January 2008, the assistant prosecutor notified the court that the sergeant had been deployed overseas on military duty, would be unavailable for an extended period of time, and the State would proceed without him. Judge Lester then inquired whether the defense wished to call the sergeant.
THE COURT: He's saying for his presentation, he doesn't need that person.
Is it somebody that you would call if he didn't? [DEFENSE COUNSEL]: Potentially, but given we have no idea when Sergeant Jackson would return, I believe it's in my client's interest to proceed with the case with just . . . Officer Andujar.
At the trial in February 2008, the State presented its case based on the testimony of Officer Andujar, who recounted the events leading to defendant's arrest and the seizure of the pouch of drugs, and a police drug expert, who described circumstances consistent with possession with intent to distribute. The defense presented no witnesses. Consistent with counsel's pre-trial position, the defense apparently did not subpoena Sergeant Jackson.
Judge Lester appropriately denied the new-trial motion. She noted that defendant chose to proceed with a speedy trial, without the presence of Sergeant Jackson.
Mr. Little . . . put the [c]court in a no win situation. He asked for a speedy trial. I gave his trial priority because he had been in custody for quite awhile. We knew that this witness was not available all along, he had been in Iraq for awhile. We knew he was going to be in Iraq for awhile. This was not a day of trial emergency . . . . [I]f it had been represented to me that the defense intended to call this witness as its own witness, then I would have considered that, and try to balance that against his request for a speedy trial, including making a judgment about his bail. I granted his motion and the trial was held.
A fundamental element of due process is a defendant's constitutional right to the compulsory process of witnesses. U.S. Const., amend. VI; N.J. Const., art. I, ¶ 10; Washington v. Texas, 388 U.S. 14, 17-18, 87 S. Ct. 1920, 1922, 18 L. Ed. 2d 1019, 1022-23 (1967); State v. Garcia, 195 N.J. 192, 201-02 (2008). However, the right is not absolute and may, in appropriate cases, bow to other "legitimate interests in the criminal trial process." Id. at 202 (internal quotation and citation omitted). The right may also be waived. State v. McMahon, 217 N.J. Super. 182, 188-89 (Law Div. 1986).
In this case, we discern no violation as defendant did not seek to compel Sergeant Jackson's appearance, but insisted on a speedy trial. Garcia, supra, 195 N.J. at 208 (discussing importance of issuing timely subpoena of witness). Had defendant insisted upon the presence of Sergeant Jackson, then the court would have been prompted to balance defendant's interests in compulsory process, a speedy trial, and bail. Given defendant's failure to insist upon the sergeant's presence, we also need not reach the question whether Sergeant Jackson's non-appearance would have been harmless in any event. See Id. at 206-07 (discussing harmfulness of deprivation of right to compel presence of witnesses).
We also reject defendant's claim that his sentence was excessive. Judge Lester merged the possession count into the possession-with-intent-to-distribute count and imposed a five-year term, without a period of parole ineligibility. Noting defendant's five Superior Court convictions and significant juvenile record, Judge Lester found aggravating factor three, risk of reoffending, factor six, prior record, and factor nine, need for deterrence, outweighed the absence of any mitigating factors. See N.J.S.A. 2C:44-1a(3), (6), and (9); and N.J.S.A. 2C:44-1b. We are satisfied the judge's findings regarding aggravating and mitigating factors were based upon competent and credible evidence in the record, the judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, and the sentence imposed is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393-94 (1989); State v. Roth, 95 N.J. 334, 364-66 (1984).
Defendant's remaining point lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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