STATE OF NEW JERSEY v. TYRELL JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0248-05T40248-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRELL JONES,

Defendant-Appellant.

_____________________________________________________________

 

Submitted July 19, 2006 - Decided August 9, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Ind. No. 01-06-2554.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Abby P. Schwartz, Assistant

Deputy Public Defender, of counsel and on the

brief).

Zulima V. Farber, Attorney General, attorney

for respondent (Karen Fiorelli, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Tyrell Jones of third-degree unlawful possession of cocaine and heroin, N.J.S.A. 2C:35-10(a)(1) (counts one and four); third-degree possession of cocaine and heroin with intent to distribute; N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts two and five); and possession with intent to distribute cocaine and heroin in a school zone, N.J.S.A. 2C:35-7 (counts three and six). At sentencing, the convictions for unlawful possession of cocaine and possession with intent to distribute cocaine (counts one and two) were merged into the conviction for possession of cocaine with intent to distribute in a school zone (count three). Similarly, the convictions for unlawful possession of heroin and possession with intent to distribute heroin (counts two and five) were merged into the conviction for possession of heroin with intent to distribute in a school zone (count six). Defendant was subject to a mandatory extended term under N.J.S.A. 2C:43-6(f), because he was a repeat drug offender. The trial court imposed concurrent eight-year prison terms, with four years of parole ineligibility, on counts three and six.

On appeal, defendant makes the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AS BEING THE PRODUCT OF AN ILLEGAL SEARCH AND SEIZURE.

A. THERE WAS NO BASIS FOR AN INVESTIGATORY STOP.

B. THE DETECTIVE'S ACTION OF RUNNING AFTER DEFENDANT INTO THE BAR SUBJECTED DEFENDANT TO AN ARREST WITHOUT THE REQUISITE PROBABLE CAUSE, AND THE DRUGS THROWN INTO THE BAR MUST BE SUPPRESSED AS FRUIT OF THE POISONOUS TREE.

POINT II

OFFICER BUMANLAG'S TESTIMONY WHEREIN HE INDICATED THAT THE UNIT THAT HE WORKED WITH WAS A TASK FORCE THAT TARGETED STREET LEVEL NARCOTICS AND OTHER QUALITY OF LIFE ISSUES, WAS TOTALLY IRRELEVANT AND HIGHLY PREJUDICIAL, SUCH THAT IT DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL. (Not Raised Below.)

POINT III

THE PROSECUTOR'S COMMENTS DURING SUMMATION WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST., AMEND XIV; N.J. CONST., (1947), ART. 1 10. (Not Raised Below.)

POINT IV

FACTORS NOT DIRECTLY RELATED TO DEFENDANT'S PRIOR CRIMINAL RECORD WERE THE BASIS FOR THE IMPOSITION OF A GREATER-THAN-PRESUMPTIVE-EXTENDED-TERM SENTENCE. THEREFORE, DEFENDANT IS ENTITLED TO A RE-SENTENCING HEARING PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005) [NATALE II].

A. BECAUSE DEFENDANT'S EXTENDED-TERM SENTENCE EXCEEDS THE PRESUMPTIVE TERM FOR A THIRD-DEGREE OFFENSE IT IS NOT IN CONFORMANCE WITH THE SUPREME COURT'S DECISION IN NATALE II.

B. AGGRAVATING FACTORS (3), (6) AND (9) ENTAIL FINDINGS BEYOND THE CONTEXT OF PRIOR RECORD.

After reviewing the record and applicable law, we conclude that defendant's arguments concerning his convictions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm defendant's convictions but remand for resentencing.

In its decision denying defendant's motion to suppress, the trial court properly focused on whether the State had established reasonable and articulable suspicion of criminal activity, justifying an investigatory stop. The trial court's findings included the following:

[T]he key question in this particular case is whether the defendant's conduct at the time of the observations made by the officer who testified, and the circumstances in which it occurred, were such as to spare him from police inquiry, being stopped, the Terry stop, the investigative stop, the asking of questions.

I think it is clear here that there was no probable cause existing, based upon the defendant's conduct or the totality of circumstances, to arrest the defendant and to search him. But, was there enough to justify a Terry stop would be my first inquiry.

The officer who testified said the following. First of all, this is an officer who has experience with narcotics investigations, . . . he clearly was assigned to the type of task forces at the time of the arrest in this case that investigated narcotics activity.

He mentioned the Nitro Task Force and the Safe Cities Task Forces. He was specifically knowledgeable about the area of 74 Irvine Turner Boulevard, that immediate area, as well as the bar called Cousin's Bar. This, according to him, was a target area for the investigation of narcotics activity. He also testified that he had made numerous arrests as well as buy and busts at the Cousin's Bar.

Specifically, and finally, that at the time that they arrived at the location and observed 10 to 15 people in the vicinity, which encompasses not only part of the front of the bar itself but also the establishment next door the May May Chinese Food Restaurant, he recognized some of the people in the group as drug offenders.

. . . .

I'm confident that he saw the group there. There doesn't appear to be any dispute there and that he recognized some of the people in the crowd as people he had either arrested before or people who were drug users in that crowd.

He did not say that he recognized the defendant as someone who had previously engaged in criminal activity.

. . . .

So I find that the police would have had the right to temporarily detain the defendant as well as other people in the crowd to inquire of their presence there and the reasons for their presence there. This is an adequate record to justify a Terry stop.

. . . .

I found of particular significance in terms of supporting the Terry stop, not only the fact that he was the only person who moved away from the crowd, but the location to which he went and the significance of that to the officers.

Remembering that the officer said that the group of people appeared to be waiting, based on his knowledge of how the purchasers gather in that area and based on his specific knowledge that buy and busts had been made in that particular bar, that that was more than sufficient to justify, and to focus, justify the stopping of Mr. Jones and to focus on him as . . . someone they might wish to make constitutional inquiry of.

Of course, once he ran, under those circumstances, and discarded in the view of the officers what he discarded, they had a right to seize those objects.

For the reasons that I have stated, the motion to suppress is denied.

The trial court's findings are supported by sufficient credible evidence, and its conclusions are legally sound. We agree that under a totality of the circumstances analysis, the police officers had a reasonable suspicion to conduct an investigatory stop. State v. Pineiro, 181 N.J. 13, 22 (2004); State v. Davis, 104 N.J. 490, 504 (1986). We affirm the order denying defendant's motion to suppress substantially for the reasons stated by Judge Lester in her oral decision on November 29, 2001.

Defendant also challenges his sentence, but he does not dispute that he was subject to a mandatory extended term. When defendant was sentenced on January 8, 2002, the presumptive extended term for his third-degree convictions was seven years. N.J.S.A. 2C:44-1(f). "Because defendant's sentence on the extended term was set above the presumptive sentence applicable at the time to the extended-term range, the matter must be remanded to permit re-sentencing." State v. Nesbitt, 185 N.J. 504, 519 (2006) (citing State v. Natale, 184 N.J. 458 (2005)).

Defendant's convictions are affirmed. The matter is remanded for resentencing. We do not retain jurisdiction.

 

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

(continued)

(continued)

7

A-0248-05T4

August 9, 2006