STATE OF NEW JERSEY v. DEON CARSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3731-03T43731-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEON CARSON,

Defendant-Appellant.

_________________________________

 

Submitted September 26, 2005 - Decided

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Criminal Part, Passaic County, Indictment No. 01-04-0461.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, and 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

Following denial of his motion to suppress, defendant, Deon Carson, was tried by a jury and convicted of fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3); third-degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(11); and third-degree possession with intent to distribute marijuana within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a). For sentencing purposes, the court merged the possession and possession with intent to distribute convictions with the school zone conviction, imposing for that crime a five-year term of imprisonment with a three-year parole disqualifier. Appropriate fees and penalties were also imposed.

In challenging the judgment of conviction, defendant raises the following issues:

I. DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE SEARCH EXCEEDED THE SCOPE OF THE CONSENT, THEREBY VIOLATING THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION; THEREFORE, DEFENDANT'S CONVICTIONS MUST BE REVERSED. (Not Raised Below)

II. IF DEFENDANT'S CONVICTIONS ARE NOT REVERSED BECAUSE TRIAL COUNSEL FAILED TO RAISE THE MERITORIOUS ARGUMENT IN POINT I AT THE SUPPRESSION HEARING, DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO THE DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below)

III. DEFENDANT'S FIVE-YEAR MAXIMUM BASE TERM MUST BE VACATED BECAUSE THE SENTENCING COURT VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (Not Raised Below)

We consider the issues raised in light of the following background developed at the motion to suppress hearing.

This criminal episode arises out of an investigation into a residential burglary, which resulted in the theft of two handguns. Detectives Abdellatif, Fermin, and Zahn of the Paterson Police Department were assigned to the investigation. A juvenile implicated in the burglary cooperated with the police and admitted that he sold the weapons to two black males in exchange for $300 and two bags of marijuana. Although he did not know the address, the juvenile described the house where the gun sale took place as one of the newly built condos on Governor Street, and further described the beige kitchen table by the rear entrance, the actual site of the transaction. On August 9, 2000, the juvenile directed the detectives to the house where he had sold the guns, which was 217 Governor Street, the home of defendant's mother, Beverly Streater.

When the officers knocked on the back door of her house, Streater answered. The officers identified themselves to Streater and informed her that they were conducting an investigation, specifically that they were looking for handguns allegedly sold at that location. Streater invited the officers into the house, and in response to their inquiries, informed them that she owned the home and lived there with her husband, Harry Streater, and defendant, her son. Detective Abdellatif asked her if they could check her house for the guns. Streater responded that that was no problem, and she invited them into the house.

At her invitation, the officers entered the kitchen, where Detective Abdellatif noticed the almond-colored table accurately described by the juvenile. Detective Abdellatif then asked permission to search her son's bedroom, and again, Streater replied that she had no problem.

According to Detective Abdellatif, he furnished Streater with a Paterson Police Department consent to search form, which informs of the right to refused consent on its face. Detective Abdellatif further explained to Streater that the form authorized the detectives to conduct a search of the premises to recover any evidence pertinent to the investigation. He also told her that she had a right to refuse to give them consent. Streater, however, assured Detective Abdellatif that she had no objections. She told him that if there were any weapons in the house, she wanted them out. After reading the consent to search form, Streater signed it.

Detective Abdellatif remained in the kitchen with Streater while her husband escorted Detectives Fermin and Zahn upstairs to defendant's room. The detectives looked around the room - under the bed, in the closet, in drawers. Detective Fermin saw a black jacket with red lining hanging in the bedroom closet. When he patted down the coat for the guns, he felt a balled-up object in the sleeve. Detective Fermin reached in and pulled out the ball. It was a black plastic bag, containing eighty-one green baggies of marijuana.

Detectives Fermin and Zahn came back downstairs with the coat. When Detective Fermin showed the coat to Streater and asked whom it belonged to, she said it was defendant's. Defendant was not present in the house during the search.

Streater's account of the police encounter did not differ substantially from Detective Abdellatif's. She admitted that the police asked for permission to search for the guns "for her safety", that she consented to the search, and that she thought she had read the consent form prior to signing it. However, she denied being advised of her right to refuse consent, explaining that she signed the consent form only after the search.

Defendant moved to suppress the evidence seized from his home on August 9, 2000, contending that the police lacked probable cause to seek consent to search and that, in any event, the consent was invalid because Streater was not advised of her right to refuse consent. The trial judge, after a plenary hearing in which he found Streater's "glaring contradictions nullify any credibility with regard to the areas wherein her account of the events surrounding the search conflicts with the police version[]", rejected both grounds proffered by defendant. In upholding the search, the trial judge reasoned:

There is no requirement, however, that the police establish probable cause prior to seeking consent to search a residence . . . "The validity of a consent to a search . . . must be measured in terms of waiver; i.e., where the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent." State v. Johnson, 68 N.J. 349, 353 (1975). It is notable, however, that the police here had abundant probable cause for seeking consent to search the residence.

. . . .

With regard to the defendant's second contention, the State must meet the knowing and voluntary waiver requirement of Johnson, supra.

. . . .

There is, at this juncture, ample basis to support the State's contention that Mrs. Streater's consent was freely and knowingly given, with knowledge of her right to refuse. There is nothing about this search that suggests coercion, deception, or misinformation on the part of the police.

On appeal, defendant forgoes the dual challenges he offered below and argues instead, for the first time, that the search in this case exceeded the scope of his mother's consent or authority to consent. Defendant does not contest, even now, the right, per se, of a parent to consent to a search of his or her premises in which a child may also reside, see State v. Pante, 325 N.J. Super. 336, 350 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000); State v. Crumb, 307 N.J. Super. 204, 240 (App. Div. 1997), but only the validity of a search of personal property therein in which another person has an exclusive right of control and privacy. On this score, defendant relies solely on State v. Younger, 305 N.J. Super. 250, 258 (App. Div. 1997).

In Younger, the defendant's grandmother consented to the search of a room in her home that was the bedroom of her eleven-year old granddaughter, who lived with the grandmother. Id. at 254. The defendant had arrived at the grandmother's house with his belongings in plastic bags shortly before the event which precipitated the police presence at the house, and had been sleeping in the bedroom. Id. The grandmother gave the police consent to search the room for a gun. Id. The officer conducting the search moved one of the plastic bags containing the defendant's clothing and found a small vinyl change purse. Id. The officer opened the change purse and found drugs. Id.

We suppressed the drugs for two reasons. First, because a gun could not possibly have been concealed in the change purse, the search of the purse necessarily exceeded the scope of the authority inherent in the consent. Id. at 256-57. Second, we found "no capacity to consent to a search of . . . possessions in which another person has or should be reasonably believed to have an exclusive right of control or right of privacy." Id. at 257.

The first rationale may not be used to invalidate the search in this case because the record demonstrates that Streater consented to a search for any evidence pertinent to the investigation and thus, the nature of the items sought did not dictate a limit on the places to be searched. As to the second rationale, however, because it was never raised below, the record is not fully developed to permit its adjudication on appeal. For instance, because the only real issue raised by defendant at the suppression hearing concerned whether Streater was advised of her right to refuse consent, Detective Abdellatif, the officer who secured the mother's consent, was the sole State witness to testify. Detective Fermin, the officer who actually conducted the search and found the marijuana, did not testify at the hearing. As a result, we are at a loss as to the exact circumstances surrounding the search of defendant's bedroom and closet, and whether the pat-down of the coat's sleeve led to the reasonable belief that a gun could have been contained in the ball of the jacket. Similarly, because there was no challenge below to the precise scope of the mother's consent, the facts are incomplete on the critical issues of the exclusivity of access to, and control over, defendant's personal property and his reasonable expectation of privacy therein.

Although under the plain error rule we will consider allegations of error not brought to the trial court's attention that have a clear capacity to produce an unjust result, R. 2:10-2; State v. Macon, 57 N.J. 325, 337-39 (1971), we generally decline to consider issues that were not presented at trial. Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218, 230 (1998); Saul v. Midlantic Nat. Bank South, 240 N.J. Super. 62, 82 (App. Div. 1990). It is well-settled that "[q]uestions not raised below 'will ordinarily not be considered on appeal.'" State v. Cryan, 320 N.J. Super. 325, 332 (App. Div. 1990) (quoting State v. Bobo, 222 N.J. Super. 30, 33 (App. Div. 1987)). See also State v. Lakomy, 126 N.J. Super. 430, 437 (App. Div. 1974).

As noted, defendant's present contention that the search exceeded the scope of the mother's consent authority was not a basis for his motion to suppress. Consequently, it was never ruled upon by the trial judge, and the record was not fully developed in this regard. We must, of course, consider the suppression motion solely on the evidence presented at the hearing below. See State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999). That evidence, however, is not sufficiently complete to permit adjudication of the newly presented issue. We, therefore, decline to consider it.

Defendant alternatively argues that trial counsel's failure to raise the "scope of consent" issue at the suppression hearing deprived him of the effective assistance of counsel in violation of the Sixth Amendment. It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). It is equally clear, however, that where, as here, resolution of the issue depends on facts dehors the record, direct appeal does not provide an appropriate remedy and the claim of ineffective assistance of counsel is reserved instead for post-appeal, post-conviction disposition. R. 3:22-3; R. 3:22-4; R. 3:22-10; State v. Preciose, 129 N.J. 455, 460 (1992). We, therefore, decline to consider this issue as well, recognizing that it is preserved for post-conviction relief (PCR) review.

Finally, defendant contends that his five-year term, which is one year above the statutory presumptive term, violates his Sixth Amendment jury trial guarantee.

In State v. Natale II, 184 N.J. 458, 466 (2005), our Supreme Court held "that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Thus, when a defendant receives a sentence higher than the presumptive term based on judicial finding other than a prior criminal conviction, his sentence does not comply with the Sixth Amendment. Ibid. To remedy the constitutional defect in our sentencing code that permitted sentencing judges to impose a term above the presumptive based on the finding of aggravating factors other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6(a). Id. at 483.

For those defendants whose cases were on direct appeal as of the date of the decision or who had raised this challenge to their sentences at trial or on direct appeal, and who had been sentenced to a term above the presumptive in violation of the Sixth Amendment, the Court ordered a new sentencing hearing. At this hearing, which will be based on the record at the prior sentencing proceeding, the defendant is entitled to have the trial court determine whether the absence of the presumptive term in the weighing process requires the imposition of a lesser sentence. Id. at 495-96.

In this case, the trial judge found as aggravating factors that there was a "risk that . . . defendant w[ould] commit another offense", N.J.S.A. 2C:44-1(a)(3), that there was a need to deter, N.J.S.A. 2C:44-1(a)(9), and "the extent of . . . defendant's prior criminal record", N.J.S.A. 2C:44-1(a)(6). He found no mitigating factors. The State argues that the court's finding of these aggravating factors was based exclusively on defendant's prior criminal convictions, and, therefore, falls within the "prior conviction" or "recidivism" exception recognized in State v. Abdullah, 184 N.J. 497, 506 (2005), decided the same day as Natale II. In Abdullah, the Court recognized that aggravating factors (3), (6), and (9) are "inextricably linked to the recidivism exception" of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), "that a prior conviction may be used to increase the penalty for a crime beyond the statutory maximum, [and that it] might have come to a different result" if the trial court in Abdullah had specifically found that those aggravating factors "related to [Abdullah's] prior convictions as the basis for increasing [his] sentence above the presumptive." Abdullah, supra, 148 N.J. at 506 n.2.

Here, the trial judge specifically found that defendant's prior record was an aggravating factor. However, he also found the need for deterrence and the risk of future offenses. He reasoned:

Looking at statutory sentencing factors there are neither aggravating or mitigating factors with regard to the offense.

Mr. Carson's prior record is an aggravating factor and I find same. These offenses occurred only five months after another earlier offense of eluding an officer and criminal trespass to which Mr. Carson pleaded guilty in November of 2000. Mr. Carson also had a possession of marijuana conviction before that in September of '99, September 29th, '99 was the date of the offense, 10/21/99 was the date of sentencing and as noted Mr. Carson had a juvenile record which ultimately resulted in custodial time at the Y-C-I-C in connection with a 1997 matter. The other aggravating factors are the risk that Mr. Carson will remain involved with criminal activity and lead - I have to admit that there are two open indictments as we - as I speak. The other aggravating factor of course is the need to deter others from same, from criminal activity.

There are no mitigating factors.

We are unable to discern from the record whether the "risk" and "deterrence" factors are based exclusively on defendant's criminal record or whether additional considerations were taken into account by the sentencing judge. Consequently, we are constrained, in light of Natale II, to remand for consideration whether the judge would impose a lesser sentence in the absence of the presumptive term.

Remand for resentencing. Otherwise, the judgment of conviction is affirmed.

 

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A-3731-03T4

October 11, 2005