December 19, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
OAKLEY SMITH, a/k/a OAKLEY MEAD SMITH, a/k/a OAKLEY M. SMITH III, a/k/a OAKLEY SMITH III, a/k/a OAKLEY O. SMITH, a/k/a OAKLEY L. SMITH, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2013
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-05-00817.
Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Kevin J. Logan, Legal Assistant, on the brief).
Before Judges Yannotti and Leone.
Defendant pled guilty to conspiracy to possess a controlled dangerous substance, specifically cocaine, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10(a)(1). He appeals from the judgment of conviction entered by the Law Division on December 13, 2011.
Defendant was charged under Monmouth County Indictment No. 10-05-00817 with third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10(a)(1). Defendant thereafter filed an application for admission to pre-trial intervention (PTI). The PTI investigator recommended that defendant be admitted to the program, but the county prosecutor denied the application.
Defendant appealed to the Law Division, which remanded the matter to the prosecutor's office for clarification of the bases for denying the application and for reconsideration. The prosecutor reconsidered its decision and again determined that defendant should not be admitted to PTI. Defendant appealed to the Law Division, which affirmed the prosecutor's decision.
Defendant then filed a motion to suppress evidence obtained when the police stopped defendant for certain bicycle violations. The trial court conducted an evidentiary hearing on the motion and on August 9, 2011, entered an order denying the motion. On October 3, 2011, defendant pled guilty to an amended charge of third-degree conspiracy to possess CDS, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10(a)(1), reserving the right to appeal the denial of his application for admission to PTI and the denial of his suppression motion. The court sentenced defendant to one year of probation and imposed appropriate fines and penalties.
Defendant appeals and raises the following argument for our consideration:
THE PROSECUTOR'S DENIAL OF SMITH'S APPLICATION FOR PRETRIAL INTERVENTION CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION WHERE REJECTION WAS BASED ON INAPPROPRIATE FACTORS, FAILED TO CONSIDER ALL RELEVANT FACTORS, AND WAS CONTRARY TO THE PROGRAM DIRECTOR'S DETERMINATION THAT HE WAS AN "APPROPRIATE CANDIDATE FOR PTI"
BECAUSE THE OFFICER EXTENDED THE DURATION OF THE STOP BEYOND WHAT WAS NECESSARY TO CITE SMITH FOR THE BICYCLE VIOLATIONS, SMITH'S MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED
Defendant argues that the prosecutor's decision to deny his application for admission to PTI constituted a patent and gross abuse of discretion. We disagree.
As we noted previously, defendant filed an application for admission to PTI and, although the PTI investigator recommended his admission, the prosecutor denied the application. In a memorandum dated August 11, 2010, an assistant prosecutor noted that defendant was a fifty-eight-year-old father of three. He was self-employed in metal restoration, clean-up and garbage businesses.
The assistant prosecutor cited N.J.S.A. 2C:43-12(e)(3), which allows the prosecutor to consider a defendant's motivation and age when determining whether to admit a defendant to PTI. The prosecutor noted defendant's age. The assistant prosecutor stated that defendant lacked motivation to succeed in PTI. She pointed out that, since March of 1992, defendant has been charged thirty-seven times with various offenses and violations. His prior sentences included jail time, suspended jail sentences and fines. The assistant prosecutor wrote that these sentences had not deterred defendant from further unlawful conduct.
The assistant prosecutor also cited N.J.S.A. 2C:43-12(e)(8), which allows the prosecutor to consider whether defendant's present offense was part of a continuing pattern of anti-social behavior. The assistant prosecutor again referenced defendant's numerous prior contacts with law enforcement. The assistant prosecutor stated that these contacts had not deterred defendant from continuing to engage in anti-social behavior.
Defendant appealed the prosecutor's determination to the Law Division. The trial court considered the appeal on September 24, 2010, and remanded the matter to the prosecutor's office for clarification and reconsideration. By letter dated November 3, 2010, an assistant prosecutor informed defendant's attorney that his application was again denied.
In the letter, the assistant prosecutor cited N.J.S.A. 2C:43-12(e)(3) and (8) and stated that defendant's record indicated that he was not motivated to succeed in PTI, and his prior contacts with law enforcement had not deterred him from continuing to engage in anti-social behavior. The assistant prosecutor pointed out that since 1992, defendant had been charged thirty-seven times with various offenses and violations.
Eight of those charges were initially filed in the Superior Court. Twenty-eight cases were heard in the municipal court and resulted in dismissals or convictions of disorderly persons offenses and ordinance violations. The assistant prosecutor noted that, in 2002, defendant was charged with contempt for disobeying a court order. In 1999, defendant was charged with failure to pay a penalty.
The assistant prosecutor stated that defendant's criminal history "shows that [he] is not deterred and not motivated." He "has a problem complying with the basic rules of society." The assistant prosecutor wrote that defendant's history alone would be sufficient to justify denial of entry into PTI.
The assistant prosecutor additionally wrote that, in evaluating a PTI application, a prosecutor may consider whether the applicant's present offense constitutes a pattern of antisocial behavior. The prosecutor may consider serious offenses, as well as less serious offenses, including disorderly persons offenses. The assistant prosecutor stated that defendant's criminal record was indicative of a pattern of anti-social behavior.
Defendant again appealed to the Law Division. The court considered the appeal on January 31, 2011, and placed its decision on the record. The court determined that the prosecutor's decision did not constitute a patent or gross abuse of discretion and judicial intervention was not warranted.
The court stated that the prosecutor had properly relied on N.J.S.A. 2C:43-12(e)(3) to deny defendant's application. The court noted that defendant's criminal record supported the prosecutor's conclusion that defendant has "a long standing and consistent problem complying with the law." The court stated that "the sheer number of defendant's contacts with law enforcement over a lengthy period of time provides a rational basis for the [p]rosecutor's decision." The court said that it was logical and rational for the prosecutor to conclude that defendant lacks motivation to succeed in PTI "when it appears clear that his prior arrests, convictions and sentences over a substantial period of time failed to deter him from committing the offense charged in the pending case."
The court additionally found that the prosecutor had properly relied upon N.J.S.A. 2C:43-12(e)(8) in denying defendant's application. The court noted that, on reconsideration, the assistant prosecutor had focused specifically on the matters in which defendant had been found guilty, particularly the eighteen convictions for ordinance violations and disorderly persons offenses. The court determined that the prosecutor had "appropriately concluded that the defendant exhibits a continuing pattern of anti-social behavior."
On appeal, defendant argues that the prosecutor's reliance upon N.J.S.A. 2C:43-12(e)(3) and N.J.S.A. 2C:43-12(e)(8) was misplaced. Defendant contends that the assistant prosecutor failed to explain why his age was an impediment to PTI admission. He argues that the number of prior charges lodged against him does not indicate that he lacks motivation to succeed in PTI.
Defendant asserts that, with the exception of two convictions of disorderly persons offenses (a 1999 conviction for passing a bad check, and a 2008 conviction for wandering), his convictions were for ordinance violations. Defendant states that this matter involves his first charge of a serious nature. He contends that his record does not show either a lack of motivation or a pattern of anti-social behavior. He maintains that the prosecutor's decision subverts the purposes of the PTI program.
We are convinced that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm the trial court's order affirming the prosecutor's denial of PTI admission, substantially for the reasons stated by the trial court in the decision delivered from the bench on January 31, 2011. We add the following.
A prosecutor's decision on whether a defendant should be admitted to PTI is entitled to "great deference." State v. Kraft, 265 N.J.Super. 106, 111 (App. Div. 1993) (citing State v. Leonardis, 73 N.J. 360, 381 (1977)). A prosecutor's determination to deny defendant's application for admission to PTI may be reversed only to correct "'the most egregious examples of injustice and unfairness.'" State v. DeMarco, 107 N.J. 562, 566 (1987) (quoting Leonardis, supra, 73 N.J. at 384).
Consequently, a defendant who seeks reversal by the court of a prosecutor's denial of his admission to PTI has "a heavy burden." Kraft, supra, 265 N.J.Super. at 112. The defendant must "'clearly and convincingly'" establish that the prosecutor's decision "'was based on a patent and gross abuse of his discretion.'" State v. Dalglish, 86 N.J. 503, 509 (1981) (quoting Leonardis, supra, 73 N.J. at 382).
Furthermore, the Supreme Court has explained that, ordinarily,
[a]n abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. In order for such an abuse of discretion to rise to the level of "patent and gross, " it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.
[State v. Bender, 80 N.J. 84, 93 (1979) (citation omitted).]
A court may not substitute its own discretion for that of the prosecutor, when reviewing a prosecutor's decision concerning admission to PTI. State v. Nwobu, 139 N.J. 236, 253 (1995) (citing Kraft, supra, 265 N.J.Super. at 112).
Here, the trial court correctly determined that the prosecutor properly relied upon N.J.S.A. 2C:43-12(b)(3) and (8) as grounds for denying defendant admission to PTI. Notwithstanding defendant's arguments to the contrary, his criminal record supports the prosecutor's determination that he lacks motivation to succeed in PTI.
In considering a PTI application, the prosecutor may consider serious criminal acts, less serious conduct, including disorderly persons offenses, offenses under the judicial code and "acts that technically do not rise to the level of adult criminal conduct." State v. Brooks, 175 N.J. 215, 227 (2002). Although defendant minimizes the seriousness of the offenses and violations of which he has been found guilty, the trial court correctly found that the "sheer number" of defendant's contacts with law enforcement provides a rational basis for the prosecutor's decision.
Thus, the record shows that, in acting on defendant's application, the prosecutor considered the relevant factors under N.J.S.A. 2C:43-12(b). The record also shows that the prosecutor did not rely upon irrelevant or inappropriate factors. The prosecutor's decision does not amount to a clear error of judgment.
We therefore conclude that there is sufficient credible evidence in the record to support the trial court's determination and the court correctly ruled that the prosecutor's denial of defendant's PTI application was not a patent and gross abuse of discretion.
Defendant additionally argues that the trial court erred by denying his motion to suppress. Again, we disagree.
At the hearing on defendant's motion, Officer Tracy Polk of the Long Branch Police Department (LBPD) testified that on November 30, 2009, he was on patrol in the north end of the City. Polk was in a marked patrol vehicle. At around 9:00 p.m., Polk observed defendant riding a bicycle without lights. He was riding east on a sidewalk, swerving in and out of the flow of pedestrians who were walking west.
Polk testified that he knew defendant, having previously spoken with him on a regular basis about three or four times a week. Polk told defendant to stop. Polk did so because defendant's bicycle did not have lights and he was riding the bicycle on the sidewalk. Polk explained to defendant why he stopped him.
Polk said defendant was talking very fast, and would not look at him or make eye contact. Defendant's behavior was not consistent with the behavior Polk had observed during their other encounters. Polk said that defendant usually was calm and willing to chat. He observed a bulge underneath defendant's jacket.
The bulge appeared to be a little larger than a softball, and Polk could not see what was causing the bulge. He asked defendant what was in his jacket. He replied, "I have a little coke on me." Polk asked defendant where it was. Defendant gestured to a different part of his jacket.
Polk retrieved the suspected cocaine from defendant's left, inner jacket pocket and placed defendant under arrest. The suspected cocaine was found wrapped in paper. Sergeant Raymond Chapparo of the LBPD arrived on the scene and assisted Polk in the arrest. Defendant was searched, incident to his arrest.
The bulge in the jacket was determined to be a roll of toilet paper. Defendant was taken to police headquarters. Polk issued summonses to defendant for the bicycle violations, and charged him with possession of CDS. Polk testified that the stop had taken about five to seven minutes.
Defendant conceded that he rode his bicycle at night without lights. He also conceded that he rode his bicycle on the sidewalk. He claimed, however, that Polk stopped him so that he could check to determine whether he had any outstanding arrest warrants. Defendant testified that, when Polk asked him about the bulge in his jacket, he told him that it was toilet paper.
Defendant stated that Polk would not allow him to leave. Defendant testified that Chapparo searched his pockets during the stop and found the paper containing the suspected cocaine. However, Chapparo testified that he did not search defendant during the stop. He said that, while he was walking toward the two, Polk seized the suspected cocaine.
The trial court found that Polk had probable cause to stop defendant because he was operating a bicycle at night without the required lights and because he was riding the bicycle on a sidewalk. The court further found that Polk's version of what occurred after the stop was credible. The court determined that Polk did not violate defendant's constitutional rights by questioning him concerning the bulge in his jacket and denied his motion to suppress.
On appeal, defendant argues that Polk escalated a valid investigatory stop into an unconstitutional seizure by improperly questioning him without reasonable suspicion. We cannot agree.
A police officer may undertake an investigative stop of an individual without a warrant, provided the stop is supported by specific and articulable facts that give rise to reasonable suspicion of criminal activity. State v. Pineiro, 181 N.J. 13, 20 (2004) (citing State v. Nishina, 175 N.J. 502, 510-11 (2003)). Reasonable suspicion will be found where the law enforcement officer had particularized suspicion that the person stopped was engaged in or about to engage in criminal conduct. Id. at 20-21 (citing State v. Arthur, 149 N.J. 1, 7-8 (1997)).
Here, the trial court correctly determined that Polk had probable cause to believe that defendant was operating his bicycle in violation of applicable legal requirements. N.J.S.A. 39:4-10 provides in pertinent part that
Every bicycle when in use at nighttime shall be equipped with a lamp on the front which shall emit a white light . . . and with a lamp on the rear which shall emit a red light . . . . In addition to the red lamp, a red reflector may be mounted on the rear . . . .
In addition, Long Branch City Ordinance 119-5 provides that every person riding or using a bicycle in the City shall obey that State's motor vehicle code, and obey all ordinances adopted by the City concerning the regulation of traffic on stop streets, one-way streets and through streets. The ordinance prohibits the riding of a bicycle on a sidewalk or boardwalk unless officially designated for use as a bikeway.
It is undisputed that Polk observed defendant riding his bicycle at night and defendant's bicycle did not have the required lights. Furthermore, defendant was riding the bicycle on the sidewalk and there is no evidence indicating the street had been designated as a bikeway. As we noted previously, the stop was brief, lasting about five to seven minutes.
Polk's questioning was initially limited to the bicycle violations. He expanded the inquiry after he observed the bulge in defendant's jacket and his uncharacteristic behavior. The officer had sufficient grounds to question defendant about the bulge in his jacket to ensure it was not a weapon. In response to that inquiry, defendant voluntarily disclosed that he was in possession of cocaine. The trial court correctly found that the stop and subsequent questioning were valid, and the evidence had been lawfully seized.
Our decision in State v. Hickman, 335 N.J.Super. 623 (App. Div. 2000), supports the trial court's decision. In that case, a police officer stopped a vehicle, after learning that its operator was driving without a license. Id. at 628. The driver was not able to produce evidence that he owned the car. Ibid. The officer asked the defendant-passenger and another passenger whether they had driver's licenses, and they said they did not. Ibid.
The officer testified that, when he answered this question, the defendant appeared extremely nervous. Ibid. The defendant also refused to make eye contact with the officer and shifted his weight from one side to the other. Ibid. The officer told the defendant he appeared to be nervous and asked him whether he had something he wanted to surrender. Ibid.
The defendant replied that he had something in his shoe, and removed a small bag of rock cocaine from his right shoe. Ibid. Only a few minutes elapsed between the stop and defendant's revelation of the cocaine. Ibid. We held that the officer did not violate the defendant's constitutional rights by briefly questioning him during the valid stop of the car in which he was riding. Id. at 629.
We noted that a traffic stop must satisfy the Fourth Amendment's basic requirement of reasonableness, which may be met by showing that the police had probable cause to believe that a traffic violation has occurred. Id. at 633-34 (citing State v. Dickey, 152 N.J. 468, 475 (1998)). The stop must last no longer than necessary to effectuate its purpose. Id. at 634 (citing Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229, 238 (1983)).
We stated that the officer had probable cause which justified the stop. Id. at 635. The officer also had an objectively reasonable basis to detain the car and its occupants "to assure that the car was driven only by a properly licensed driver and to confirm that it was not stolen." Ibid.
We additionally stated that the valid, temporary detention of the car and its occupants "was not transformed" into a violation of the defendant's Fourth Amendment rights merely because the officer asked him if he had any contraband or a weapon. Ibid. Police questioning is not considered a seizure even when the police do not have grounds to detain an individual. Ibid. (citing Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991)).
We noted that when citizens respond to a police inquiry, their responses will be considered consensual, even though they had not been told they were free not to respond. Id. at 635 (citing INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247, 255 (1984)). A Fourth Amendment violation will only be found if the circumstances of the encounter "'are so intimidating'" that a reasonable person would believe he was not free to leave if he does not respond. Ibid. (quoting Delgado, supra, 466 U.S. at 216, 104 S.Ct. at 1763, 80 L.Ed.2d at 255).
We stated that, "[I]f a motor vehicle is subject to a valid police stop, the police may question the occupants, even on a subject unrelated to the purpose of the stop, without violating the Fourth Amendment so long as such questioning does not extend the duration of the stop" Id. at 636 (citations omitted) "In such a situation the evidence of a motor vehicle violation provides the justification for the stop and a police officer may question the occupants of the car during the stop without any additional justification" Ibid
Here the record supports the trial court's determination that Polk had probable cause to stop defendant Polk had reasonable grounds to believe that defendant was riding his bicycle in violation of NJSA 39:4-10 and the City's ordinance The stop only lasted several minutes It was no longer than necessary to effectuate the purpose of the stop
Moreover Polk's questioning of defendant during the stop was permissible in view of defendant's uncharacteristic behavior and the bulge the officer observed in his jacket The questioning did not unduly prolong the stop and it was not intrusive in any way As in Hickman the stop and the officer's inquiry satisfied the Fourth Amendment's requirement of reasonableness Id. at 638
We therefore conclude that the trial court did not err by denying defendant's motion to suppress the evidence obtained during the stop.