STATE OF NEW JERSEY v. MARVIN T. BRODIE, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0713-05T50713-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN T. BRODIE, JR.,

Defendant-Appellant.

_______________________________________

 

Submitted June 5, 2006 - Decided July 14, 2006

Before Judges Yannotti and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. I-04-07-01176.

Clifford E. Lazzaro & Associates, attorneys for appellant (Heather A. Fierro, on the brief).

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent (Joie Piderit, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Marvin T. Brodie, Jr. was charged under Ocean County Indictment No. I-04-07-1176 with possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(1) (count two); possession of Oxycodone, N.J.S.A. 2C:35-10a(1) (count three); possession of Hydrocodone, N.J.S.A. 2C:35-10a(1) (court four); and possession of Alprazolam, N.J.S.A. 2C:35-10a(1) (count five). Judge Edward J. Turnbach denied defendant's motion to suppress. On May 2, 2005, defendant pled guilty to count two, possession of cocaine with intent to distribute the same, a first-degree crime. The judge thereafter sentenced defendant to a twelve-year term of imprisonment, with a 69-month period of parole ineligibility. Appropriate penalties and assessments also were imposed. Defendant appeals his conviction and the sentence imposed. We affirm.

I.

On April 22, 2004, Detective Todd Malland (Malland) of the Manchester Township Police Department (MPD) applied for the issuance of warrants to search the premises at 933 First Avenue in Toms River and 2500 Kent Road in Manchester Township. In support of the application, Malland submitted an affidavit which set forth facts developed in an investigation by the MPD of defendant's alleged unlawful possession and distribution of CDS in Monmouth and Ocean Counties.

In his affidavit, Malland stated that a confidential informant, who he identified as MCI 04-01, told Detective Mark Cure (Cure) of the MPD that he was familiar with a person named "Marvin" who resides in the Manchester area and distributes quantifies of cocaine. The informant described "Marvin" as a black male in his early thirties, about six feet tall with brown eyes, black hair and a medium build. The informant said that he had purchased cocaine from "Marvin." Cure discussed the matter with Malland, who determined that defendant was the individual mentioned by the informant. Cure showed the informant a photo of defendant and the informant acknowledged that defendant was the person from whom he had purchased the cocaine.

Cure interviewed another confidential informant, who Malland identified as MCI 04-04. This informant said that he was familiar with an individual known as "Marvin," who resided at 2480 Kent Road, in Manchester. The informant said that "Marvin" distributed crack cocaine from his residence. He also described "Marvin" as a black male in his early thirties, about six foot tall, with brown eyes, black hair and a medium build. Cure showed the informant a photo of defendant and the informant identified defendant as the individual who sold him cocaine.

During the week of February 22, 2004, Malland went with Cure and MCI 04-04 to a prearranged "meet location" in Manchester so that the informant could make a controlled purchase of cocaine from defendant. The informant went to the premises at 2480 Kent Road, knocked on the door and he was met by a black female. MCI 04-04 identified the female as defendant's mother Joan. She told the informant that defendant did not live at that address.

According to Malland, Cure interviewed another confidential informant, MCI 04-03. Malland asserted that this informant had made in the past six controlled purchases of cocaine for the MPD. MCI 04-03 told Cure that the individual known to him as "Marvin" supplied cocaine to persons residing at 2755 Ridgeway Road.

Malland asserted that the information provided by the three informants had been corroborated by information obtained by the Ocean County Narcotics Strike Force, which indicated that defendant was a "worker" in a network that purchased, bagged and distributed cocaine in Ocean and Monmouth Counties. The Ocean County investigators learned from confidential informant CI 01-59 that defendant was a distributor of crack cocaine in the Manchester area. According to this informant, defendant and four or five other individuals traveled to New York City to obtain large quantities of cocaine, which were brought back to Manchester or Lakewood Township and then distributed throughout Ocean County.

Malland added that in November 2003, Cure interviewed another confidential informant, MCI 03-07, who had in the past made controlled purchases of cocaine for the MPD. This informant advised Cure that he met with and had purchased cocaine from defendant at 933 First Avenue in Toms River.

During the week of February 29, 2004, Malland and Sergeant Anthony Cucchiara (Cucchiara) of the MPD met with MCI 04-01, who agreed to make a controlled purchase of cocaine from defendant. The police set up surveillance in the area of 933 First Avenue. Cucchiara observed MCI 04-01 dial the number for defendant's cell phone. Defendant answered "almost immediately" and said that he would meet the informant "in a little bit." Ten minutes later, the police observed defendant leave the residence and enter a vehicle, which traveled nonstop to the "meet location," where defendant sold cocaine to the informant.

Malland's affidavit also noted that during the week of February 29, 2004, defendant had been seen driving the same vehicle in the Pine Lake section of Manchester. The police saw defendant make brief stops at six different locations. Malland stated that, based on his experience and training in narcotics investigations, defendant's conduct was consistent with the actions of persons who distribute CDS.

Malland stated that on March 7, 2004, he again spoke with Ocean County informant CI 01-59, who said that he was still purchasing CDS from defendant. The informant said that he would contact defendant by phone and establish a "meet location" in Manchester. The informant said that defendant kept his "product" at both 933 First Avenue in Toms River and at 2500 Kent Road in Manchester. The informant told Malland that defendant also kept his "product" at a used car lot in Lakewood Township and has numerous vehicles with dealer tags at his disposal, which he used to deliver cocaine throughout Monmouth and Ocean Counties.

Malland added that during the week of March 7, 2004, he and Detective Sergeant Lisa Parker of the MPD met with MCI 04-01 at a prearranged location so that the informant could make a "controlled purchase" of cocaine from defendant. The informant called defendant on his cell phone and set up a "meet." The officers established surveillance at 933 First Avenue and in the vicinity of 2480 and 2500 Kent Road. The officers observed defendant leave the residence at 2500 Kent Road. After stopping at 2755 Ridgeway Road, defendant proceeded to the prearranged location where MCI 04-01 purchased the drugs from defendant. Defendant then drove to the residence at 933 First Avenue.

Malland additionally asserted that, during the week of April 18, 2004, he and Cucchiara interviewed confidential informant MCI 04-06. The informant said that he was familiar with an individual named "Marvin" who resides in the Manchester area and distributes cocaine. The informant provided a description of the person he referred to as "Marvin." He said that he had purchased cocaine from Marvin, after contacting him on the cell phone. Cucchiara showed the informant defendant's photograph and the informant identified defendant as the person from whom he had purchased cocaine.

The Manchester police arranged for a controlled purchase of cocaine by MCI 04-06. The officers again established surveillance at 933 First Avenue and in the vicinity of 2480 and 2500 Kent Road. The officers observed defendant leave the residence at 2500 Kent Road. He traveled to the prearranged meeting location, where the informant purchased crack cocaine from defendant.

Based on the information contained in Malland's affidavit, Municipal Court Judge Philip M. Miller issued warrants to search the premises at 933 First Avenue in Toms River and 2500 Kent Road in Manchester. The officers executed the warrants and, at 2500 Kent Road, found crack cocaine, marijuana, certain prescription medications, drug paraphernalia, currency and documents with defendant's name. The grand jury issued its indictment on July 13, 2004.

Defendant moved to suppress the evidence obtained in the search. At the suppression hearing held on April 8, 2005, defendant did not contest the facts set forth in Malland's affidavit. He argued, however, that Malland's affidavit contained insufficient facts to establish that the confidential informants were reliable. Defendant also argued that the affidavit did not contain sufficient information to establish probable cause to believe that a crime was being committed at 2500 Kent Road.

Judge Turnbach concluded that Malland's affidavit provided sufficient facts to establish probable cause for the searches and denied defendant's motion to suppress. Defendant thereafter pled guilty to count two, possession of cocaine with intent to distribute. Defendant was sentenced on September 9, 2004, and the judgment of conviction was entered on that date. This appeal followed.

Defendant raises the following contentions for our consideration:

POINT I: THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE.

POINT II: THE FAILURE OF THE STATE TO MAKE A DOWNWARD ADJUSTMENT FOR TRIAL PROOF ISSUES PURSUANT TO N.J.S.A. 2C:35-12 IS ARBITRARY AND CAPRICIOUS AND CONSTITUTES PLAIN ERROR (Not raised below).

We are satisfied that there is no merit in either contention and, for the following reasons, we affirm.

II.

A search that is conducted based upon a properly issued search warrant is presumed to be valid. State v. Sullivan, 169 N.J. 204, 211 (2001) (citing State v. Valencia, 93 N.J. 126, 133 (1983)). Defendant has the burden of proving that the search was invalid, specifically, "that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable." Ibid. (quoting Valencia, supra, 93 N.J. at 133). When considering a challenge to the search, the court accords "substantial deference" to the determination that resulted in the issuance of the warrant. Ibid. (quoting State v. Marshall, 123 N.J. 1, 72 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).

Before issuing a search warrant, the judge must be convinced "that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched." Id. at 210 (citing State v. Laws, 50 N.J. 159, 173 (1967), cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968)). Probable cause is established if there is "a 'well grounded' suspicion that a crime has been, or is being committed." Id. at 211 (quoting State v. Waltz, 61 N.J. 83, 87 (1972)).

"Information provided by an informant may constitute a basis for a finding of probable cause, so long as there is a substantial basis for crediting the information." Id. at 212 (citing State v. Smith, 155 N.J. 83, 92, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998)). The totality of the circumstances are considered when analyzing an informant's tip in determining the validity of the warrant under the Fourth Amendment. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). The same test is employed when evaluating a search warrant under our State Constitution. State v. Novembrino, 105 N.J. 95, 122-23 (1987).

When applying the "totality of the circumstances" test, we consider "the informant's 'veracity' and the informant's 'basis of knowledge'". Smith, supra, 155 N.J. at 93. A deficiency in one factor may be compensated by a strong showing of the other, "or by some other indicia of reliability." State v. Zutic, 155 N.J. 103, 110-11 (1998) (quoting Gates, supra, 462 U.S. at 233, 103 S. Ct. at 2329, 76 L. Ed. 2d at 545). Furthermore, "if police corroborate 'information from which it can be inferred that the informant's tip was grounded on inside information, this corroboration is sufficient to satisfy the basis of knowledge prong' as well as the veracity prong." Smith, supra, 155 N.J. at 95-96 (quoting Gates, supra, 462 U.S. at 270 n.22, 103 S. Ct. at 2349-50 n.22, 76 L. Ed. 2d at 569 n.22 (White, J., concurring)). Details revealed in a tip may show that an informant's knowledge of the alleged criminal activity is derived from a trustworthy source. Id. at 94.

Clearly, the facts set forth in Malland's affidavit were sufficient to establish probable cause for the search at 2500 Kent Road. The informants provided detailed information to the police which indicated that defendant was engaged in the possession and distribution of CDS. Most important, the information provided by the informants was corroborated by the officers' own investigation, including their surveillance and the three successful controlled purchases of cocaine from defendant by the confidential informants.

Moreover, Malland's affidavit set forth sufficient information to establish probable cause to believe that defendant was using the premises at 2500 Kent Road to store the drugs. Confidential informant CI 01-59 told the police that defendant kept quantities of narcotics at 2500 Kent Road. After informant MCI 04-01 called and arranged to meet defendant for his controlled purchase of CDS, the police saw defendant leave the premises and, after stopping at 2755 Ridgeway Road, drive to the prearranged location, where he sold cocaine to the informant. In addition, after MCI 04-06 called defendant on his cell phone and arranged to meet him for the purchase of CDS, the officers observed defendant leave the house at 2500 Kent Road. These facts were sufficient to establish probable cause to believe that a crime was being committed at 2500 Kent Road in Manchester.

III.

We turn to defendant's assertion that the prosecutor arbitrarily and capriciously failed to make a downward adjustment of the mandatory minimum sentence prescribed for his offense by the Comprehensive Drug Reform Act of 1987 (CDRA), N.J.S.A. 2C:35-1 to 36A-1.

A prosecutor is permitted by N.J.S.A. 2C:35-12 to waive a mandatory sentence for any offense under the CDRA by way of a negotiated plea agreement or post-conviction agreement with defendant. The prosecutor must follow the written guidelines established by the Attorney General governing plea agreements and must state on the record the reasons for waiving or not waiving the mandatory sentence in a particular case. State v. Vasquez, 129 N.J. 189, 195-96 (1992). Exercise by a prosecutor of his or her discretion under N.J.S.A. 2C:35-12 is subject to review by the court. Ibid. However, a defendant is not entitled to relief from the sentence imposed unless he or she establishes "clearly and convincingly that the [prosecutor's] exercise of discretion was arbitrary and capricious." Id. at 196.

Defendant asserts that a downward adjustment of the mandatory sentence was warranted in his case. He contends that there were proof problems in this matter because the State's case was based in part upon information provided by confidential informants. Defendant also asserts that if the matter proceeded to trial, there was a possibility that the jury would not believe the evidence of the State witnesses and that the identities of the confidential informants would be disclosed.

However, the plea negotiation worksheet which was completed in this case shows that the prosecutor considered these factors and saw no reason for a downward adjustment of the mandatory sentence. The prosecutor reasonably could have believed that facts stated in Malland's affidavit provided strong proof that defendant had unlawfully possessed cocaine for distribution contrary to N.J.S.A. 2C:35-5b(1). While the State would have relied in part upon the testimony of confidential informants whose credibility could have been impeached at trial, the State also was able to present testimony of the police officers, who had engaged in extensive surveillance of defendant and had observed the controlled purchases of CDS by the informants. Simply put, a fair assessment of the evidence and the potential witnesses does not reveal any substantial proof problems. In our view, the defendant has not "clearly and convincingly" shown that the prosecutor was arbitrary and capricious in refusing to agree to a downward adjustment of the sentence in this case. Vasquez, supra, 129 N.J. at 196.

Defendant argues, however, that his sentence should be vacated because the prosecutor did not set forth on the record the reasons why he did not propose a downward adjustment of the mandatory sentence in the plea negotiations. In support of this argument, defendant relies upon State v. Hammer, 346 N.J. Super. 359 (App. Div. 2001). There, the record did not reveal whether the prosecutor followed the Attorney General's Guidelines when negotiating the plea. The State admitted that some of the mitigating factors in the Guidelines might apply to the defendant. Id. at 371. We remanded the matter so that the prosecutor could state the reasons for his plea offer and defendant could be afforded an opportunity to establish that the exercise of prosecutorial discretion was arbitrary and capricious. Ibid.

The Hammer case is clearly distinguishable because the record in this matter contains the plea agreement worksheet, which shows that the prosecutor considered the Attorney General's Guidelines when negotiating the plea and provides sufficient insight into the prosecutor's decision to require the mandatory sentence as part of the plea. A further statement on the record by the prosecutor of the reasons for his plea offer was not required in this case.

 
Affirmed.

In his affidavit, Malland did not state whether any of the confidential informants were male or female. We refer herein to the informants as males simply for convenience.

(continued)

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A-0713-05T5

July 14, 2006