STATE OF NEW JERSEY v. WITHROW H. RAY, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2136-03T42136-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WITHROW H. RAY, JR.,

Defendant-Appellant.

_____________________________________

 

Submitted July 26, 2005 - Decided

Before Judges Wecker and Hoens.

On appeal from the Superior Court of New

Jersey, Law Division, Union County,

I-03-03-0245.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Arthur J. Owens,

Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Debra A. Owens, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

A jury found defendant, Withrow H. Ray, Jr., guilty on Union County Indictment 03-03-0245 of one count of third-degree possession of a controlled dangerous substance (heroin). N.J.S.A. 2C:35-10(a)(1). He was sentenced to a three-year state prison term. Mandatory fines and penalties also were imposed, along with suspension of driving privileges and DNA sample collection.

On appeal, defendant presents these arguments:

POINT ONE

THE MOTION JUDGE'S DENIAL OF DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED AS THE RESULT OF AN IMPROPER STOP WAS IN ERROR AND SHOULD BE REVERSED

POINT TWO

THE TRIAL JUDGE ERRED IN SENTENCING DEFENDANT AS THE PUNISHMENT WAS CREATED FOR THE CRIMINAL, RATHER THAN THE CRIME

We have carefully reviewed the record and the briefs, and we conclude that there is sufficient evidence in the record of defendant's suppression hearing to justify the warrantless seizure of the drug evidence. We therefore affirm the order denying defendant's motion to suppress, adding these comments.

The State's only witness at the suppression hearing was Elizabeth Police Officer Joseph Gramiak, who had eleven years of experience enforcing the drug laws in Elizabeth, and had made thousands of drug arrests during those years. His partner at the time of the incident, Officer Scott Velonis, did not testify at the hearing.

These are the uncontroverted facts established at the hearing on defendant's motion to suppress. Officers Gramiak and Velonis were on plainclothes street patrol in an unmarked vehicle in a high drug crime area of the city. It was approximately 11:30 a.m. on December 12, 2002. The officers were twelve to fifteen feet away when they noticed Jacqueline Melton, who was known to them as a result of her multiple prior drug and prostitution arrests. It appeared that she was about to engage in a drug transaction with a male, later identified as defendant.

Officer Gramiak saw what appeared to be a small white rectangular envelope in defendant's hand. The officer suspected, from his long experience, that it was a glassine envelope of heroin. He saw Melton begin a hand movement that suggested to him that she was about to purchase the suspected envelope of heroin from defendant.

The officers stopped the car and got out, identifying themselves and displaying their police badges. As they did so, Melton turned and walked away. Defendant turned in the other direction and put the suspected drug envelope into his right jacket pocket. Officer Gramiak followed Melton, stopped her and brought her back to the place where Officer Velonis had stopped defendant. At that point, Officer Velonis told Officer Gramiak that defendant had admitted having "several bags in his pocket," and that Officer Velonis had seized four envelopes of suspected heroin from defendant's coat pocket. This is Officer Gramiak's testimony on direct:

Q Okay. So what did you do at that time [after noticing the suspected drug transaction about to take place]?

A We immediately exited our vehicle with our badges in plain view and, as we were approaching, Ms. Melton began to walk north on Henry Street towards Flora Street and Mr. Ray slighted his body and stuck his hand in his right jacket pocket.

Q And what did you do after that?

A I went towards Ms. Melton, and my partner, Officer Velonis, stopped Mr. Ray.

Q Okay. And what happened next?

A Okay. At this time, I had brought Mrs. Melton back and Officer Velonis advised me that he had recovered four glassine envelopes stamped Superman in blue ink in the right jacket pocket of Mr. Ray.

Q Again, do you recall if there was any conversation between Officer Velonis and the defendant?

A Yes, I do.

Q And what was that?

A That he had stated to Officer Velonis that he had several bags in his pocket.

Q Okay. What does "bags" refer to?

A Glassin[e] envelopes.

Q And where were the glassin[e] envelopes retrieved from?

A They were in the right jacket pocket.

. . . .

Q Did you have a conversation with Ms. Melton as she was walking north on Henry?

A I just told her to stop. That's when she stopped.

Q Did you say anything to Mr. Ray?

A I did not, no.

Q Did your partner?

A I believe so. I couldn't tell you what he said.

Q Any why did you stop them?

A We believed we were seeing a drug transaction just take place.

On cross-examination, this was Officer Gramiak's testimony respecting the envelopes:

Q Now, you said that you were told by your partner that he had found four bags of glassine in Mr. Ray's jacket pocket?

A That's correct.

Q When did Velonis tell you that?

A After I approached with Ms. Melton because I stopped her because the way I came out of the car and went around, and I stopped in the middle because she immediately started to walk away.

Q Now, did you say that you overheard a conversation between Mr. Ray and Officer Velonis?

A No. I'm only going by what he told me.

Q Okay. Did you hear Mr. Ray say anything?

A No. I did not.

There is no doubt that under the totality of the circumstances, the officers had the reasonable, particularized suspicion required to justify an investigatory stop of Melton and defendant. See State v. Moore, 181 N.J. 40, 46 (2004); State v. Davis, 104 N.J. 490, 504-05 (1986). An investigative or Terry stop permits an officer, upon reasonable suspicion, to briefly detain the suspect to conduct a limited investigation, which includes questioning the suspect. Davis, supra, 104 N.J. at 505. The pertinent legal question presented, however, is whether Officer Velonis had the right to put his hand into defendant's pocket to find and seize the drugs he found there. Defense counsel made that argument when he challenged the investigatory stop in the Law Division: "And the seizure, which we have concluded was made by Velonis in Mr. Ray's pocket and not in plain view was an illegal seizure and that defense motion to suppress should be granted." The State argued: "I would say, based on all those factors, you know, the high narcotics area, the actual observation of narcotics in the defendant's hand gave him probable cause to search and make arrests in this case."

The judge concluded that the officers had "reasonable articulable suspicion" to undertake an investigatory stop.

If they have reasonable articulable suspicion, they are permitted to do an investigatory stop. They have a right under case law to ask him what's in his pockets. So that's why I'm saying, if they have a right to stop him and make the inquiry, they have a right to ask what he put in his pocket. And when he responds, drugs, clearly, it's probable cause.

So it doesn't make a difference as to whether the police officer under case law asks him what he has in his pocket or if he volunteers it . . . .

In our case, there was reasonable articulable suspicion, so it became an investigatory stop and then the officer can ask questions. See also, [State v. Bynum, 259 N.J. Super. 417 (App. Div. 1992)].

. . . .

But even if we take it the next step, he volunteers or is asked and volunteers that he has the four folds in his pocket. The Officer sees the motion with that hand. He has probable cause to believe even further, adding more strength to it, that there were drugs involved, criminal activity afoot, he has a right to seize. The motion is denied.

Defendant's argument on appeal once again is that there were insufficient grounds for the investigatory stop. The State addresses only that question.

Officer Gramiak did not see or hear what went on between Velonis and defendant while he, Gramiak, was stopping Melton. He did not see Officer Velonis seize the drugs. But hearsay is admissible in a motion to suppress. See N.J.R.E. 101(a)(2)(E); 104(a); see also State v. Engel, 99 N.J. 453, 462 (1985) (rules of evidence do not apply to certain preliminary inquiries like suppression hearings); cf. State v. Kasabucki, 52 N.J. 110, 116 (1968) (hearsay permissible in affidavit offered to establish probable cause for a search warrant). The judge was permitted to rely upon what Officer Velonis told Officer Gramiak: that defendant admitted he had the drugs, and that Officer Velonis had reached into defendant's pocket.

The motion judge concluded that the officers' confrontation with defendant and Melton constituted an investigatory stop. The judge found that the officers had a sufficiently reasonable suspicion to warrant the stop and to question defendant. We agree that based upon his observations, Velonis had the right to ask defendant whether he had any drugs in his pocket. The judge concluded that it did not matter whether Velonis asked defendant what was in his pocket or whether defendant spontaneously volunteered. We concur. The seizure of the drugs was lawful.

The evidence is sufficient to support the conclusion that defendant volunteered the information either spontaneously or in answer to a lawful question that he had drugs in his pocket. We defer to Judge Barisonek's findings in that regard. See State v. Locurto, 157 N.J. 463, 470 (1999). We are satisfied that once defendant admitted having illegal drugs in his possession, the officer had probable cause to arrest him. Under the circumstances, the officer was not required to ignore the admission that defendant had contraband on his person, in a pocket where it was readily accessible, or to await a warrant. A search incident to arrest is lawful as an exception to the warrant requirement. Moore, supra, 181 N.J. at 45-6.

 
Defendant's argument respecting his three-year prison sentence is without merit and does not warrant discussion in a written opinion. See R. 2:11-3(e)(2).

Affirmed.

Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889, 902 (1968).

While the prison term is accurately stated in defendant's Procedural History, it is incorrectly stated in the Argument section of defendant's brief.

(continued)

(continued)

9

A-2136-03T4

October 13, 2005