STATE OF NEW JERSEY v. JOSE CORREA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6552-03T46552-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE CORREA,

Defendant-Appellant.

 

Submitted: September 14, 2005 - Decided:

Before Judges Fall and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Numbers 02-04-477 and 02-06-899.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark S. Carter, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Maura K. Tully, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After pleading guilty to third-degree possession of heroin with the intent to distribute in Union County Indictment Number 02-04-477, defendant Jose Correa appeals from the denial of his motion to suppress, and from the sentence imposed. Defendant also appeals from his conviction of second-degree eluding in Union County Indictment Number 02-06-899, contending that there was an inadequate factual basis to warrant acceptance of his guilty plea. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

I.

Defendant was charged in Union County Indictment Number 02-04-477 with distribution of heroin, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count one); third-degree distribution of heroin within a school zone, N.J.S.A. 2C:35-7 (count two); third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count three); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count four); and third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count five).

These charges against defendant arose from an incident occurring on December 5, 2001. An evidentiary hearing on defendant's motion to suppress was conducted in the Law Division before Judge Barisonek on December 13, 2002. Officer Joseph Gramiak of the Elizabeth Police Department testified that he and his partner, Officer Connelly, were on duty at approximately 12:40 p.m. on December 5, 2001, in the area of 5th and Fulton Streets in Elizabeth in plain clothes in an undercover police vehicle. Officer Gramiak described the neighborhood as mixed residential and commercial and one with an extremely high level of illegal narcotics activity. Officer Gramiak explained that they had been assigned to that area based on "numerous citizen complaints of narcotic activity[.]"

Officer Gramiak stated that when they arrived in the area, he saw defendant "bending down in the rear bakery lot of the bakery which is located at the corner of 5th and Fulton, reaching under the bumper of a . . . Chevy four-door red Blazer." Officer Gramiak recognized defendant from a prior narcotics investigation in which he had been involved. Officer Gramiak testified that based on his significant training and experience in narcotics traffic, he concluded that defendant was "possibly either retrieving a stash or putting a stash there." As a result, Officers Gramiak and Connelly decided to establish a surveillance of the area. He then saw defendant emerge from the driveway of the bakery and begin pacing back and forth in front of 87 5th Street. After a few moments, Officer Gramiak observed a Hispanic female approach defendant on foot, saw them engage in a brief conversation, and then watched as the female handed defendant currency and defendant, in turn, handed her a small object.

The police officers continued their surveillance of defendant. Approximately five to ten minutes later, they saw a black male, later identified as Gerald Washington, approach defendant and engage in a brief conversation. At that point, Officers Gramiak and Connelly moved the police vehicle closer to defendant's location, and saw Mr. Washington give defendant currency in exchange for a small item.

Believing they had observed two drug transactions, Officers Gramiak and Connelly exited their police vehicle, whereupon defendant "then quickly turned and stuffed his left hand into his pocket." Officer Gramiak stopped defendant. Officer Connelly stopped Mr. Washington, after observing him discard two white glassine envelopes containing a substance that later tested positive for heroin. A search of defendant revealed $512 in cash, a set of keys, but no narcotics.

After arresting defendant and Mr. Washington and placing them in their police vehicle, Officer Connelly went to the Blazer vehicle where they had earlier observed defendant bending down. From underneath the front bumper, at the exact location where defendant had bent over and retrieved the objects, Officer Connelly found two bricks, each containing fifty glassine envelopes with a substance inside that later tested positive for heroin. The set of keys seized from defendant included car keys for the subject Blazer vehicle.

In denying defendant suppression motion, the judge stated, in pertinent part:

A finding of probable cause ultimately takes into account all of the facts known and the circumstances known to the officer at the time in light of his training, experience and expertise. This officer certainly has substantial experience, being ten years on the force, and involved in numerous narcotics arrests, and I believe he said over a thousand. So the court has to give due weight to that as well. . . .

* * * *

Our case involves really specifically what the officers believed were sales. So he has in our case even more than particularized suspicion [that defendant's] engaged in criminal activity. He's seen it if you believe his testimony, and I do. So he's justified in seizing the defendant and searching the defendant as an incident to that arrest.

* * * *

In seeking to invoke the protection of the Fourth Amendment, the defendant must establish that a reasonable and legitimate expectation of privacy was invaded by the government. . . .

The resolution of this turns on whether the person exhibited an actual subjective expectation of privacy and whether the expectation of privacy was one that society is prepared to recognize as reasonable.

* * * *

Under the context of the Fourth Amendment, the defendant abandons property when he voluntarily discards, leaves behind, or otherwise relinquishes his interest in property so that he can no longer retain a reasonable expectation of privacy. The issue of whether property has been abandoned by the defendant is factual in nature. . . .

* * * *

Two cases provide guidance regarding the interplay of the abandonment principles and drug stashes. State v. Bergos, 185 N.J. Super. 424 [(App. Div. 1982)]. There, the Appellate Division ruled that a defendant had no expectation of privacy in an aspirin tin containing a stash of cocaine which was placed under a parked automobile on a public street regardless of whether defendant intended to return to the aspirin tin and retrieve it. Notice I said on the street not in the car or a portion of the car.

The narcotics detective in Bergos [was] conducting surveillances when they observed the defendant place an object on the ground beneath the parked car. They then observed him remove the items from the stash several times and sell them to other individuals. When the police retrieved the aspirin tin, it contained six packets of cocaine.

While the Appellate Division noted that the concept of abandonment usually arises when an item is discarded or abandoned during flight, they applied the principle to the Bergos case, declining to extend constitutional protection to property concealed on a public street in order to promote criminal venture.

[In] State v. Ford, 278 N.J. Super. 351 (App. Div. 1995), the police were conducting surveillances, observed one co-defendant remove narcotics from a bag contained in a hole on a side of a house after being told by a second co-defendant that a male purchaser required smaller bags, four in number, of cocaine.

The Appellate Division, relying more on the plain view doctrine than the doctrine of abandonment[,] stated defendant's privacy rights were altered when the police officer, lawfully in position where any member of the public could have been, observed evidence of a possible crime concealment of narcotics being committed before his very eyes and observed the contraband in the precise place where it was concealed and it's ready accessibility from an exterior portion of the house. That's at page 355.

In assessing the defendant's expectation of privacy, the court concluded that the defendant's privacy rights had been forfeited. In so determining, the court pointed to the fact that the seizure of the narcotics did not require entry into the home.

* * * *

The defendant in our case hid his stash underneath the Blazer on a public street but within a bumper. And, quite honestly, this is somewhat distinguishable because it wasn't on the street as it was in the Bergos case. It's physically in a public area.

You run into questions. Well, if they can reach under the bumper, can they pick the hood up. Can they go behind the wheel into the brakes. How far can they go to seize? It's really not important in this case because, as cited in Ford, they saw the criminal activity, saw him going to the stash and, in fact, have drugs on Washington. It's certainly reasonable to assume and [there is] probable [cause] to assume that, in fact, the drugs were stashed where the defendant had been located.

* * * *

So, in this case, it's really of no consequence whether the drugs are on the ground or in the bumper because they see the criminal activity, have probable cause to believe the drugs are there, that it's contraband, and they have a right to go over and seize it. Again, that contraband can be removed. Anybody can go over there. The defendant may have someone else involved with him. The car could be taken away from the scene and [the police] can lose the evidence.

So, the exigent circumstances which were not created by the police give them the right to go over and see what's there, . . . pull the contraband out and take it.

So, since the initial seizure of the defendant was legal, and this is an incident to that search, they saw him involved with the contraband at that . . . location, they have reason to believe they will find criminal contraband there. There's certainly probable cause to believe that so, therefore, the motion of the defendant is denied.

[Other citations omitted.]

An order denying defendant's motion to suppress was issued on December 13, 2002.

On November 10, 2003, defendant entered into a plea agreement with the State in which he pled guilty to the charge of possession of heroin with intent to distribute contained in count four of Indictment Number 02-04-477, in return for dismissal of the remaining charges against him. Upon acceptance of the plea, defendant was sentenced in accordance with the plea agreement to a term of imprisonment of five years, with a parole disqualifier of twenty-one months.

After analyzing the record in the light of the written arguments advanced by the parties, we conclude that defendant's contention that the trial court erred in denying his motion to suppress is without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(2), and we affirm the December 13, 2002 order denying defendant's motion to suppress substantially for the reasons articulated by Judge Barisonek in his oral decision delivered on that date. We add the following.

In State v. Johnson, 171 N.J. 192 (2002), the police were investigating a citizen's complaint that defendant had been selling narcotics in a high drug area near 695 Martin Luther King Boulevard in Trenton. Id. at 199-200. When the police went to that location they observed defendant, who was seated on the porch of the house at that location, place a light-colored object in his right hand near a support post for the overhanging porch roof that was immediately to defendant's right. Id. at 200. The officers believed defendant was attempting to conceal narcotics. Ibid. The officers ascended the porch and saw there was a hole a few inches deep at the base of the post where the wood had rotted away. Id. at 200-01. Upon shining their flashlight into the hole, they saw the light-colored object, retrieved it from the hole, and it contained a substance that later tested positive for cocaine. Id. at 201. A search of defendant revealed currency, but no narcotics. Ibid.

Viewing the totality of the circumstances, and considering the high-crime character of the area, the Court sustained the seizure, finding that all three elements of the plain view doctrine were met. Id. at 220. Specifically, the Court found that the police officers were lawfully in the viewing area, the officers did not know in advance where the evidence was located nor intend beforehand to seize it, and it was immediately apparent to the officers that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure. Id. at 206-07.

Here, having observed defendant act in a manner that appeared to be the placing or removing of contraband from under the bumper of the Blazer vehicle, followed by observations of defendant engaging in two transactions they believed were drug sales, confirmed by the finding of narcotics on the person of Washington, it became immediately apparent to the officers that defendant had stashed contraband under the bumper of the vehicle. Therefore, seizure of the items from under the bumper was justified under the plain view doctrine. Moreover, defendant could have no reasonable expectation of privacy in these circumstances.

The officers had probable cause to believe that they had observed defendant hiding or retrieving contraband from the bumper of the vehicle, and were justified in searching under the bumper and retrieving the items seized due to the exigency of the circumstances in that the vehicle was readily mobile and third persons could have removed or destroyed the items from under the bumper. The presence of both probable cause and exigent circumstances justified the search of the bumper area of the subject vehicle. See State v. Nishina, 175 N.J. 502, 518-19 (2003) (warrantless search of a vehicle justified where the officer has probable cause to believe that a crime has been committed and is faced with exigent circumstances); accord State v. Cooke, 163 N.J. 657, 661 (2000).

II.

Defendant was charged in Union County Indictment 02-06-899 with second-degree eluding a police officer while operating a motor vehicle on a public highway on March 21, 2002. When entering his plea of guilty to the drug charge contained in Indictment Number 02-04-477, on November 10, 2003, defendant also entered into a plea agreement with respect to Indictment Number 02-06-899, agreeing to plead guilty to the eluding charge, with the State agreeing to recommend a flat nine-year term of imprisonment, concurrent both with a term he was presently serving on a federal conviction, and with the term to be imposed on the drug conviction to which he was also pleading guilty.

After establishing that defendant understood the terms of the plea agreement and was entering his plea of guilty to the eluding charge voluntarily, the following colloquy ensued between defendant and defense counsel:

Q. All right. On March 21st, 2002, were you in Elizabeth, and then Newark, in a vehicle, when the police --

A. Yes.

Q. -- ordered you to, I think, pull over?

A. Yes.

Q. Did you know that the vehicle that asked you to pull over was a vehicle occupied by law enforcement people?

A. Yes.

Q. And did you intentionally leave the area in that vehicle, to get away from the police?

A. Yes.

Q. And in the course of trying to get away from the police, did you go into -- I think Newark -- Hillside or Newark?

A. Yes.

Q. An in the course of trying to get away from the police, did you hit a parked car that was parked on the street, I think in Newark?

A. Yes.

Thereafter, the prosecutor stated she was satisfied with the factual basis elicited, and the court accepted the plea of guilty. The court then sentenced defendant to a flat nine-year concurrent term in accordance with the plea agreement.

Defendant's contention that the factual basis given was insufficient to sustain a conviction for second-degree eluding is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant acknowledged that the police had directed him to pull over; that he left the area to get away from the police; and that he struck a parked car. The accident is sufficient to give rise to a finding of careless driving, contrary to N.J.S.A. 39:4-97, which in turn gives rise to an inference that defendant "created a risk of death or injury to any person." See State v. Wallace, 158 N.J. 552, 559 (1999).

III.

Lastly, defendant argues that the sentences imposed on both indictments must be vacated and the matter remanded pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), because the trial court imposed sentences in excess of the presumptive terms prescribed by N.J.S.A. 2C:44-1f. In sentencing defendant, the trial court found no mitigating factors and the presence of N.J.S.A. 2C:44-1a(3), the risk that defendant will commit another offense; N.J.S.A. 2C:44-1a(6), the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; and N.J.S.A. 2C:44-1a(9), the need for deterring defendant and others from violating the law.

In State v. Natale, 184 N.J. 458 (2005), the Court ruled

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. To bring the Code into compliance with the Sixth Amendment in a way that the Legislature would have intended, we are compelled to eliminate presumptive terms from the sentencing process. Hereafter, without reference to presumptive terms, judges will sentence defendants within the statutory range after identifying and weighing the applicable mitigating and aggravating factors.

[Id. at 466.]

Here, because we find that the trial court correctly followed applicable sentencing criteria and guidelines, its findings on the aggravating and mitigating factors are supported by substantial evidence in the record, and because the trial court, in emphasizing the defendant's prior record, applied only the offender-based aggravating factors set forth in N.J.S.A. 2C:44-1a(3), -1a(6) and -1a(9) when considering an appropriate term within the range, see State v. Abdullah, 184 N.J. 497, 506, n.2 (2005), we find no error in the sentences imposed.

Affirmed.

 

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A-6552-03T4

October 6, 2005