July 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY SIMPSON, A/K/A RASHEED A. ABDULLAH, A/K/A DARREN J. COUBOUN, A/K/A RASHEED ABDULLAH, A/K/A JEFFREY J. SIMPSON, A/K/A RASHEED A. ADDULLAH, A/K/A ROBERT SIMPSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 09-03-0651, 08-12-3016, 09-01-0226, and 09-04-1056.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 11, 2012
Before Judges Espinosa and Koblitz.
Defendant Jeffrey Simpson appeals from four October 26, 2010 judgments of conviction. After losing his motion to suppress the controlled dangerous substances (CDS) that formed the basis of Atlantic County Indictment No. 09-03-0651, defendant entered a guilty plea to counts three and four of that indictment, charging third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and second-degree possession of heroin with the intent to distribute within 500 feet of a public zone, N.J.S.A. 2C:35-7.1. He also pled guilty to the one-count Atlantic County Indictment No. 08-12-3016, charging third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), count one of Atlantic County Indictment No. 09-04-1056, charging third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), and count two of Atlantic County Indictment No.09-01-0226, charging third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). The remaining counts of the indictments were dismissed. Defendant was sentenced to an aggregate term of eight years imprisonment with three years of parole ineligibility. Defendant maintains on appeal that the suppression motion should have been granted and that his sentence is excessive. In a supplemental brief, he also asserts that he was the victim of racially-motivated selective prosecution, the complaint and indictment were fatally defective, and his guilty plea was coerced. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Atlantic City Police Detectives William Warner and James Barrett testified at the motion to suppress. They testified that they were conducting surveillance at the Stanley Holmes Villages, a public housing project located in a violent, high-crime, high-drug area of Atlantic City where multiple shootings and homicides have taken place. They observed a white male pull up onto Baltic Avenue. The man picked up a cell phone and on two occasions he changed his parking spot a few feet, never leaving the car. The detectives did not know the driver, but thought he might be making a drug purchase. Warner testified that drug sellers would sometimes enter a car and drive off to complete a drug transaction outside of police view.
After twenty-five minutes, defendant, who is African-American, approached the driver, spoke to him and entered the car. The two men drove away, followed by the detectives, going ten blocks. The car entered the Carver Hall Apartments, another high-crime, high-drug location. Both men then left the car and walked out of sight of the police. The driver then returned to their view and approached and handed money to another man. Police observed the man hand an object to the driver. The detectives believed this was a hand-to-hand drug transaction. The driver returned to his car, where defendant was already waiting. The car then returned to the area where it had been parked in front of the Stanley Holmes Villages.
The detectives activated their flashing lights and pulled up behind the car. Detective Warner approached the driver, co-defendant Anthony Guarrera, and observed a bundle of heroin in the exposed ashtray between the two front seats. Both occupants were then asked to exit the vehicle. Guarrera admitted the heroin was his and the detectives placed him under arrest. Defendant stepped out of the car, making a motion towards his right pants pocket as if pushing an object down deeper into the pocket. As a safety precaution, Barrett asked defendant to place his hands on his head and patted him down, finding two zip-lock bags containing rock cocaine in the right front pocket and thirty-nine folds of heroin in another pocket.
Defense counsel raises the following points on appeal:
POINT I THE TRIAL COURT'S FINDINGS THAT THE DETECTIVES HAD A REASONABLE BASIS TO STOP GUARRERA'S CAR AND THAT THE DISCOVERY OF HEROIN WAS WITHIN THE "PLAIN VIEW" DOCTRINE, WERE CLEARLY MISTAKEN AND SO WIDE OF THE MARK THAT THE INTERESTS OF JUSTICE REQUIRE APPELLATE INTERVENTION. THE ORDER DENYING SUPPRESSION MUST BE REVERSED.
POINT II EVEN IF IT WAS CONSTITUTIONALLY PERMISSIBLE TO STOP GUARRERA'S CAR, WITHOUT ANY EVIDENCE THAT SIMPSON SHARED POSSESSION OF THE HEROIN OBSERVED IN THE ASHTRAY, THE DETECTIVES LACKED PROBABLE CAUSE TO ARREST SIMPSON OR TO SEARCH HIM INCIDENT TO THAT ARREST. THEREFORE, ANY EVIDENCE FOUND IN THE CAR AND ON SIMPSON'S PERSON MUST BE SUPPRESSED.
POINT III EVEN IF IT WAS CONSTITUTIONALLY PERMISSIBLE FOR THE DETECTIVES TO STOP GUARRERA'S CAR, LACKING ANY INDICATION THAT SIMPSON WAS ARMED, THE DETECTIVES LACKED ANY LAWFUL BASIS TO FRISK OR TO SEARCH SIMPSON. THEREFORE, ANY EVIDENCE FOUND ON SIMPSON'S PERSON MUST BE SUPPRESSED.
POINT IV THE CONCURRENT TERMS IMPOSED ON INDICTMENT 09-03-0651 ARE EXCESSIVE.
In his pro se supplemental brief, defendant raises the following additional issues:*fn1
POINT I APPELLANTS CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW WAS VIOLATED BY THE STATES SELECTIVE PROSECUTOR AND DISPARATE TREATMENT BETWEEN APPELLANT AND HIS CO-DEFENDANT.
POINT II THE COMPLAINT - SUMMONS ISSUED IS A LEGALLY DEFICIENT, THE PROCEDURE EMPLOYED IN CONNECTION WITH ISSUANCE OF COMPLAINT-SUMMONS WAS SO INTRUSIVE AND NON-PROTECTIVE OF DEFENDANTS RIGHTS OF DUE PROCESS, FUNDALMENTAL FAIRNESS, INDICTMENT AND EVIDENCE MUST BE SUPPRESSED.
POINT III PROSECUTORIAL MISCONDUCT AND ABUSE OF GRAND JURY. STATE AND PROSECUTOR FAILED TO INSTRUCT AND PRESENT JOINT POSSESSION AS
AN OPTION TO GRAND JURY TO INDICT. PER SWORN TESTIMONY, OFFICERS WRITTEN REPORTS AND GRAND JURY TESTIMONY, EVIDENCE SUPPORTS THE ELEMENTS OF JOINT POSSESSION. BY NOT INCLUDING OR INSTRUCTING GRAND JURY ON ELEMENTS AND OPTION OF JOINT POSSESSION, GRAND JURY WAS MISLEAD AND STEERED TO INDICT TO WHIM OF PROSECUTOR.
POINT IV DEFENDANTS PLEA WASN'T WILLFUL OR VOLUNTARY. DEFENDANT WAS COERCED AND THREATENED INTO PLEA AGREEMENT BY THE JUDGE['S] TONE AND DECISION TO ARBITRALY DENY DEFENDANT THE RIGHT AND OPPORTUNITY TO FILE AND HAVE HIS MOTION HEARD ON 7/12/10.
In Point I of counsel's brief, defendant argues that the two detectives testified in such an inconsistent and unbelievable manner that the judge should have rejected their testimony. He argues that Detective Barrett in particular was equivocal as to whether he personally saw a drug transaction. We will not interfere with the findings of a judge sitting without a jury if based upon substantial credible evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012) (citations omitted). In matters such as these, "[a] disagreement with how the . . . judge weighed the evidence in a close case is not a sufficient basis for an appellate court to substitute its own factual findings to decide the matter." Elders, supra, 192 N.J. at 245. The motion judge found the inconsistencies in the detectives' testimony were not sufficient to undermine their credibility. We defer to that finding.
Defendant also argues that the stop of the car was impermissibly race-based given Detective Warner's testimony that police suspicions were enhanced because the housing project is overwhelmingly populated by African-Americans and white men who come to the area are usually coming to purchase drugs. The motion judge expressed surprise at hearing the defense argument that the detectives used impermissible race-based criteria for stopping the car. As the motion judge noted, by the time the detectives approached the car, they had seen evidence of a hand-to-hand drug transaction, which provided reasonable suspicion to justify the stop.
An officer "may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in . . . criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002); see also State v. Arthur, 149 N.J. 1, 9 (1997) (police may stop a vehicle based on specific articulable facts that reasonably warrant suspicion that the vehicle is involved in criminal activity).
Detective Warner's observation of Guarrera apparently purchasing drugs provided sufficient articulable suspicion to justify stopping the car. As Guarrera reached for his driving credentials, Warner spotted a bundle of heroin in plain view in the car's ashtray between the occupants. A warrant is not required to perform a search when a police officer is (1) lawfully present in the viewing area, (2) the officer inadvertently discovers the evidence in plain view, and (3) it is "immediately apparent" to the police officer that the "items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Mann, 203 N.J. 328, 340-41 (2010) (citations omitted). The police were justified in seizing the heroin.
In Point II of counsel's brief, defendant argues that because Guarrera accepted responsibility for the heroin in the ashtray, the police had no reason to arrest defendant. Law enforcement is not required to accept the word of a co-defendant as to who is legally responsible for possessing drugs. The detectives had probable cause to arrest both occupants of the car as soon as they saw heroin sitting in plain view between the two men. The "principal component of the probable cause standard [for search and arrest] 'is a well-grounded suspicion that a crime has been or is being committed.'" State v. Harris, 384 N.J. Super. 29, 47 (App. Div.) (quoting State v. Moore, 181 N.J. 40, 45 (2004)), certif. denied, 188 N.J. 357 (2006). Indeed, both men could have jointly possessed the drugs. See State v. Scott, 398 N.J. Super. 142, 151 (App. Div. 2006) (plastic bag containing cocaine and marijuana was located in plain view on the floor of the Jeep, which was an area readily accessible to the defendant), aff'd o.b., 193 N.J. 227 (2008).
Defendant argues in Point III of counsel's brief that their search of his person was improper because the detectives had no reason to believe defendant was armed. The motion judge found the search of defendant's person permissible as a search incident to a valid arrest. State v. O'Neal, 190 N.J. 601, 613-14 (2007); see also State v. Daniels, 393 N.J. Super. 476, 491 (App. Div. 2007) (deciding that "once the decision is made to take the person into custody and transport him to police headquarters, a full search should be permitted").
The search was also valid as a protective frisk. State v. Roach, 172 N.J. 19, 27 (2002) (citations omitted). The stop took place in a high-crime area. Detective Barrett testified that defendant reached towards his right front pocket. See State v. Privott, 203 N.J. 16, 29-30 (2010). When the detective felt the pocket, he heard the crinkle of plastic and felt a "hard, rock-like substance." He then realized the bulge was drugs and not a weapon. The detectives were thus permitted to search defendant and find the heroin in his other pocket, which led to the charges of possession of heroin with intent to distribute.
Defendant argues in Point IV of counsel's brief that the length of the mandatory extended term he received was excessive. Defendant received the maximum sentence permissible under the plea agreement he reached with the State. He was sentenced on five second- and third-degree convictions stemming from four separate indictments. Where the sentencing court has followed the sentencing guidelines and has made factual findings concerning the aggravating and mitigating factors that are grounded in competent credible evidence in the record, we will not modify the sentence unless the application of the guidelines to the facts of the case make the sentence so clearly unreasonable "as to shock the judicial conscience." State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 363-64 (1984)).
At the sentencing hearing, the judge found three aggravating factors: (1) the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); (2) the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and (3) the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors.
Prior to sentencing defendant, the judge stated:
Defendant has 21 arrests, eight prior indictable convictions, one Federal indictable conviction, three disorderly persons convictions.  Defendant was afforded probation placement and parole supervision [and] state and county level incarceration. He was released from Federal prison on [the] Supervised [Release] Program and violated that program. He was then sentenced [to] an additional term in Federal prison with no supervised release to run consecutive to any state or local sentence he had received. He has no parole violations.
As a juvenile, he has an extensive arrest and adjudication record. Defendant's conviction[s] included manslaughter, aggravated assault, possession of xanax, conspiracy, robbery, unlawful possession of a weapon, [e]luding, possession of cocaine, forgery, contempt and aggravated assault on a corrections employee, on a probation officer and on a sheriff's officer.
This demonstrates  Defendant has an extensive, violent history. Additionally, the Presentence Report indicates [that]
Defendant has [an] extensive alcohol and drug history.
Defendant received a mandatory extended term based on a prior conviction of possession of CDS with intent to distribute. N.J.S.A. 2C:43-6(f). He received all of the sentences concurrent to each other, although there were at least four separate incidents represented by the four indictments. See State v Ghertler, 114 N.J. 383, 390-92 (1989) (unrelated criminal episodes justify consecutive sentences). In light of defendant's extensive criminal history, we do not find the sentence imposed, one year longer than the mid-range of an extended term on one count, to be excessive.
In defendant's supplemental brief he argues that he was treated disparately than Guarrera because he was charged with possession with intent to distribute while his co-defendant was charged with mere possession. Defendant, however, was found with thirty-nine folds of heroin in his pocket, as well as the ten folds found in the car's ashtray between the two men. Thus, the State had more evidence against defendant than Guarrera, even if it accepted Guarrera's statement that the ten folds in the ashtray belonged solely to him.
Defendant also raises an unsupported, technical issue with regard to the criminal complaint he claims was signed by Detective Warner, citing to a repealed statute, N.J.S.A. 2A:8-27, requiring the "officer in charge" to witness the signing of a complaint. The Grand Jury's indictment superseded the complaint, so any technical deficiency in the complaint, if it existed, is irrelevant to the charges for which defendant was sentenced. See State v. Boykin, 113 N.J. Super. 594, 596 (Law Div. 1971) (noting that even after dismissal of a complaint, a defendant "may still be indicted and convicted for the same offense").
Defendant also complains that he was harmed by the failure to submit a joint possession charge to the Grand Jury. It is unclear why he thinks such a charge would have been of any assistance to him.
Finally, defendant claims that by his harsh tone of voice and unwillingness to consider additional legal arguments, the judge coerced his guilty plea. In fact, however, the judge asked defendant at sentencing if he wished to withdraw his plea. Defendant indicated he did not wish to do so.
Except to the extent already addressed in our opinion and in that of the hearing judge, the remaining points raised in defendant's brief lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).