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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2139-03T42139-03T4

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-02-12-1433.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Arthur J. Owens,

Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Carol M. Henderson, Assistant

Attorney General, of counsel and on the brief).

PER CURIAM

A jury found defendant, Withrow H. Ray, Jr., guilty on Union County Indictment 02-12-1433 of one count of third-degree distribution of a controlled dangerous substance (cocaine). N.J.S.A. 2C:35-5a(1) and 5b(3). Defendant was sentenced to a five-year state prison term, consecutive to a sentence imposed the previous week on Indictment 03-03-0245. Mandatory fines and penalties were imposed, along with suspension of driving privileges and DNA sample collection.

On appeal, defendant presents these arguments:

POINT ONE

OFFICER KELLY'S SEARCH OF OSTOYIC EXCEEDED THE BOUNDS OF A TERRY STOP AND THEREFORE THE EVIDENCE OBTAINED AS A RESULT OF THAT SEARCH SHOULD HAVE BEEN SUPPRESSED

POINT TWO

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

POINT THREE

DEFENDANT'S SENTENCE WAS UNCONSTITUTIONAL AS IT WAS BASED UPON FACTS NOT FOUND BY A JURY NOR ADMITTED TO BY DEFENDANT

We have carefully reviewed the record and the briefs in light of applicable law, and we find no merit in defendant's contentions with respect to his motion to suppress four vials of cocaine found on the person of an individual who was observed purchasing the drugs from defendant. See R. 2:11-3(e)(2). We therefore affirm his conviction. We add, however, these comments.

At a hearing on defendant's motion to suppress, the State offered the testimony of Elizabeth Police Officer Robert Keily. Defendant offered no witnesses. The credible testimony of Officer Keily allowed the judge to find the following facts: Officer Keily and his partner, Police Officer James D'Orio, were dispatched to the 900 block of Flora Street at about 3:30 p.m. on August 23, 2002, as a result of a tip that two black men, one in a white shirt and one in a black shirt, were dealing drugs in the area. The officers were in plainclothes, in an unmarked car, and Officer D'Orio was driving. They parked their car, but saw nothing to support the tip. However, their knowledge of the area as a common scene of illegal drug activity led them to set up a surveillance of the block.

In the course of that surveillance, Officer Keily saw a green Mazda pull up and park on the other side of the street. A man got out of the car whom Officer Keily recognized as Mark Ostoyic. The officers had had previous contact with Ostoyic in several other drug investigations. Officer Keily saw Ostoyic look up and down the street before entering the 901 Club, a place the officer knew had been the site of many arrests for drug dealing. After about fifteen seconds, Ostoyic came out and again looked up and down the street. A man, later identified as defendant, then came down the steps at 908 Flora Street and approached Ostoyic.

Using binoculars from his seat in the unmarked police car parked about 150 feet away, Officer Keily saw Ostoyic pass something to defendant that appeared to be currency. Defendant then walked up the driveway of 908 Flora Street, passing out of view. He was gone for about four minutes; when he returned, he passed a small item to Ostoyic. Ostoyic then got back into the green Mazda in which he was a passenger, and the car drove off.

In order not to reveal their undercover surveillance, Officer Keily and his partner radioed for a marked car to stop the Mazda. Because no car was immediately available, Officers Keily and D'Orio followed the Mazda until a marked unit, driven by Officer Amilcar Colon, stopped the car on Routes 1 & 9. At the time, Officers Keily and D'Orio were directly behind Officer Colon's vehicle. They stopped and all three approached the Mazda. Officer Keily got Ostoyic out of the back seat, explained why he was stopped, and searched him. The officer found four vials of cocaine in a hidden slit in Ostoyic's pants zipper, and then arrested him. Ostoyic was taken to police headquarters, and Officers Keily and D'Orio immediately drove back to the area of 908 Flora Street. They saw defendant walking on the street and arrested him for drug distribution.

As Judge Barisonek found, the area around 908 Flora Street was known to the officers to be the site of "extensive criminal activity, including sales of drugs," which explained their decision to set up a surveillance site on the block. Their initial observations of Ostoyic, looking around as if he expected to see someone, led to their heightened suspicion when he entered the 901 Club and came out too quickly to have had time for a drink.

Defendant's challenge to the admission of the drugs found on Ostoyic depends upon whether Officer Keily had probable cause to search him. The judge found that Officer Keily's experience and observations of what clearly appeared to be a drug transaction between Ostoyic and Ray established reasonable, particularized suspicion, justifying the police in stopping and searching Ostoyic, seizing the contraband found on his person, and placing him under arrest.

We defer to the judge's findings of fact, which are well supported by the record. See State v. Locurto, 157 N.J. 463, 470 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). Under the totality of the circumstances, which is the test of probable cause both as to the search and arrest of Ostoyic and the arrest of defendant, State v. Moore, 181 N.J. 40, 46 (2004), the record supports Judge Barisonek's conclusion that the police had probable cause to search Ostoyic and seize the drugs found on his person. State v. Anaya, 238 N.J. Super. 31, 36 (App. Div. 1990); State v. Guerrero, 232 N.J. Super. 507, 511-12 (App. Div. 1989); see also State v. Cooke, 163 N.J. 657, 676 (2000) (probable cause and exigent circumstances required). We therefore affirm the denial of defendant's motion to suppress the drug evidence.

We now briefly address defendant's arguments with respect to the sentence imposed on September 25, 2003 (the day after the jury's verdict). Defendant had been sentenced a week earlier on Union County Indictment 03-03-0245, the third-degree possession charge which we affirm today in A-2136-03T4. Thus the court had an up-to-date presentence report, and defendant agreed that the court could rely upon it with the same correction previously noted: that defendant did have a "drug use history." Defendant argued for a concurrent sentence with no parole ineligibility term; the State sought a consecutive sentence of five years, based upon defendant's "two prior indictables."

In sentencing defendant to a five-year consecutive term, these were the judge's findings:

THE COURT: Aggravating factors, risk you will commit another offense, need to deter. Two prior indictables. The one from last week and he had one additional one from 1998 actually, the offense was 1998. The sentencing was in July of '99. They were both possession offenses. I asked whether the State would be seeking an extended term. That was agreed that would be waived because the two possessions, even though it is a third, I would not grant an extended term even if the State asked for it because it would be discretionary and possession offenses are non-violent and, quite candidly, under Dunbar I wouldn't have given it but he does have the two prior convictions. Mitigating factors, there are none.

Thus the judge apparently relied upon defendant's two prior possession convictions to find aggravating factors 3 and 9, but not aggravating factor 6. See N.J.S.A. 2C:44-1(a)(3), (6), and (9). Defendant contends that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), did not permit imposition of a sentence above the presumptive four years for this third-degree crime. In light of the recent decision of our Supreme Court in State v. Natale, 184 N.J. 458 (2005), holding that the presumptive terms set forth in New Jersey's sentencing scheme violate the mandate of Blakely, we remand the case to the Law Division to reconsider defendant's sentence in light of Natale.

 
Defendant's conviction is affirmed; the matter is remanded for resentencing.

Defendant's appeal in that case is the subject of our opinion today in A-2136-03T4, where we affirmed the denial of his motion to suppress evidence and affirmed his conviction and sentence.

(continued)

(continued)

7

A-2139-03T4

October 13, 2005