STATE OF NEW JERSEY v. TROY MALCOLM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1387-03T41387-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TROY MALCOLM,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 28, 2006 - Decided March 13, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 04-04-1774, 04-01-0032, 03-12-3831.

Yvonne Smith Segars, Public Defender, attorney for appellant (John Vincent Saykanic, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Mary E. McAnally, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After his motion to suppress evidence in connection with Indictment No. 2003-12-3831 and his motion to dismiss Indictment No. 2004-01-32 were denied, defendant pled guilty to some of the charges in those indictments, and, pursuant to the plea agreement, was sentenced as follows: on Indictment No. 2003-12-3831, count three, third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7, four years imprisonment with a one-year parole disqualifier; count four, third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, four years imprisonment; and count nine, third-degree resisting arrest, N.J.S.A. 2C:29-2, four years imprisonment; and on Indictment No. 2004-01-32, count three, third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7, four years imprisonment with a one-year parole disqualifier. All of the sentences were ordered to be served concurrently. Appropriate monetary assessments and loss of driving privileges were also imposed.

On appeal, defendant presents these arguments:

POINT I

INDICTMENT NO. 2003-12-3831 SHOULD BE DISMISSED WITH PREJUDICE AS THE SEARCH OF THE DEFENDANT VIOLATED HIS RIGHT TO BE FREE FROM AN UNREASONABLE SEARCH UNDER THE FOURTH AMENDMENT RIGHT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION; THE POLICE DID NOT HAVE THE INDIVIDUALIZED REASONABLE SUSPICION REQUIRED FOR A SEARCH UNDER TERRY V. OHIO, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

POINT II

INDICTMENT NO. 2004-1-32 MUST BE DISMISSED WITH PREJUDICE AS THERE IS INSUFFICIENT EVIDENCE TO SUPPORT COUNT 1 (CONSPIRACY TO POSSESS WITH INTENT TO DISTRIBUTE A CDS), COUNT 2 (POSSESSION WITH INTENT TO DISTRIBUTE A CDS), AND COUNT 3 (POSSESSION WITH INTENT TO DISTRIBUTE WITHIN 1000 FEET OF SCHOOL PROPERTY).

We reject these arguments and affirm.

The suppression motion on Indictment No. 2003-12-3831 was decided without an evidentiary hearing. No material facts were in dispute, and the facts as recited in the police report were stipulated, which revealed the following: Prior to August 13, 2003, the police conducted a drug investigation in which defendant was the target. Based upon information that defendant was selling marijuana from his residence at 971 Grove Street in Irvington, the police arranged for two controlled buys by a confidential informer from defendant at that location, which is in a high drug area. The police presented an affidavit containing that information and obtained a search warrant for defendant's premises. They intended to execute the warrant on August 13, 2003. They received a call from the confidential informer that morning informing them that defendant was observed carrying a black revolver in his waistband earlier that morning.

The police established a surveillance of 971 Grove Street. They observed defendant exit the premises and walk to a nearby liquor store. Detectives followed defendant into the store, approached him, and identified themselves as police officers. The detectives observed a large bulge protruding from defendant's front waistband. Believing it was a hand gun, a detective patted the area through defendant's clothing and was able to determine that the object he felt was a handgun. He lifted up defendant's shirt and removed it. Defendant was arrested, and a search of his person incident to the arrest revealed a clear plastic bag of marijuana, which the police seized.

The police then proceeded to execute the search warrant and found in defendant's residence additional quantities of marijuana and other evidence that they seized. In his suppression motion, defendant did not challenge the validity of the search warrant and did not seek suppression of the evidence seized from the residence. The motion was limited to the search of defendant's person in the liquor store. So is the appeal.

In denying the suppression motion, Judge Casale found that, based upon the totality of the circumstances, the police had an "articulable suspicion to perform the Terry stop and pat-down." We agree.

"'An officer does not need a warrant to make [an investigatory] stop if it is based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity.'" State v. Birkenmeier, 185 N.J. 552, 561-62 (2006) (quoting State v. Rodriguez, 172 N.J. 117, 126-27 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968))). A reasonable suspicion requires only "'some minimal level of objective justification,'" based upon "'an objectively reasonable belief that the collective circumstances are consistent with criminal conduct.'" Id. at 562 (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). The "reasonable suspicion" necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest, and the "collective circumstances" test may properly include corroboration by field observations of information provided by a confidential informer. Ibid.

The information available to the police when they made an investigatory stop of defendant in the liquor store was sufficient to meet this test. Defendant was selling drugs out of his residence in this high drug area. The same confidential informer that made the controlled buys and had provided reliable information to the police in the past advised the police that defendant was carrying a handgun in his waistband that day. Defendant was observed leaving his premises. The police approached defendant and, without touching him, observed a bulge in his waistband, thus corroborating the informer's information. Based upon these collective circumstances, the police possessed an articulable and reasonable suspicion that defendant was carrying a handgun in his waistband, thus constituting criminal activity, and justifying a protective pat search. State v. Thomas, 110 N.J. 673, 677-80 (1988). The suppression motion was properly denied.

We next address defendant's motion to dismiss Indictment No. 2004-01-32. Defendant contended before the trial court that the evidence presented to the grand jury was insufficient to support the indictment and that evidence of prior criminal conduct by defendant impermissibly tainted the grand jury process. He makes the same contentions on appeal.

At the grand jury hearing, the State presented one witness, Detective Robert Liput, of the Essex County Sheriff's Department, Bureau of Narcotics. These are the pertinent facts to which he testified. On September 19, 2003, he and other detectives conducted a surveillance of defendant's residence at 971 Grove Street in Irvington, which is located within 1,000 feet of a school. The police had obtained a search warrant for defendant's residence, which they intended to execute that day. The police observed an individual, later identified as Miguel Andrews, who they characterized as a "runner," walk to the rear of 971 Grove Street, and after about three minutes, returned to Grove Street. Liput explained that this was consistent with actions the police observed in the past at that location that "led us to execute a search warrant on that location on a prior date." Defendant then exited the premises, and the police detained him on the street. They then proceeded to enter the residence and execute the search warrant.

Inside, the police found Andrews and another individual, Lateefah Barley, and a substantial quantity of marijuana. In an effort to establish that 971 Grove Street was defendant's residence, the prosecutor asked Liput whether he had evidence that defendant was "the tenant of that unit." Liput responded:

Yes, sir. Back in August, I believe it was August 13, I conducted a search warrant of that residence at which time I did arrest Mr. Malcolm on that date for that search warrant of a prior date for a narcotics offense and he is the renter of that location.

The prosecutor immediately provided the grand jury with this limiting instruction:

I just ask the Jury to disregard the observation about a prior arrest for narcotics in this case but it has to do with the identification of the location as being his residence.

Liput testified that based upon his experience and training as a narcotics detective, considering the quantity and packaging of the marijuana found in the premises, it was his opinion that the marijuana was intended for "street distribution" and not personal use. Liput also opined that defendant, Andrews and Barley were working together to distribute the narcotics.

Judge Casale found that the evidence presented to the grand jury was sufficient to meet the low threshold required to support an indictment. He noted that hearsay evidence is permitted in a grand jury proceeding and that "at least some evidence as to each element" alleged in the indictment was presented. He rejected the contention that the prosecutor engaged in misconduct that infringed upon the grand jury's decision-making function. We agree with the judge's analysis and conclusion.

We first note that, unlike the right to appeal denial of the suppression motion after pleading guilty, which is automatically preserved by Rule 3:5-7(d), the right to appeal denial of a motion to dismiss an indictment after a guilty plea is waived unless expressly preserved by defendant, with the consent of the prosecutor and approval of the trial judge. R. 3:9-3(f). From our review of the record, including the plea agreement and the transcripts of the motion, plea and sentencing, we do not see any indication that defendant preserved his right to appeal denial of the motion to dismiss the indictment. However, the State has not raised the waiver issue on appeal, thus, perhaps, waiving its right to assert the issue. See State v. Matos, 273 N.J. Super. 6, 15 (App. Div. 1994). Instead, the State has argued the merits of the issue. We too decide the issue on the merits.

An indictment should be dismissed only upon "the clearest and plainest ground" and should stand "unless it is palpably defective." State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984) (citations omitted). In evaluating the sufficiency of the evidence, every reasonable inference must be given to the State, and the evidence need not be sufficient to sustain a conviction, but merely sufficient to establish a prima facie case. Id. at 27. It is only necessary that "some evidence" of each element of the offense be presented. State v. Cook, 330 N.J. Super. 395, 410 (App. Div.), certif. denied, 165 N.J. 486 (2000).

This standard of proof was met. The State presented some evidence of each element of the offense to which defendant pled guilty, possession of a CDS with intent to distribute within 1,000 feet of school property. The State presented evidence that defendant resided at 971 Grove Street, which is located within 1,000 feet of a school, that he had just left the premises before the search warrant was executed, that marijuana was found in his residence, and, based upon the quantity and packaging, the marijuana was intended for distribution. Although not dispositive of the issue on appeal, the evidence before the grand jury was also sufficient to support the other two counts of the indictment, which were dismissed pursuant to the plea agreement, namely conspiracy to possess a CDS with intent to distribute, and possession of a CDS with intent to distribute.

We also reject defendant's contention that evidence of defendant's prior arrest impermissibly tainted the grand jury proceeding. In answering the prosecutor's question inquiring whether the police had evidence that defendant lived at 971 Grove Street, Liput answered in the affirmative and, in providing the basis for his answer, provided more information than he should have, namely that he had previously executed a search warrant and arrested defendant at that location for a narcotics offense. However, the prosecutor immediately informed the grand jurors to disregard the information regarding defendant's prior arrest for narcotics and to consider Liput's answer only for the purpose of establishing the identification of the location as his residence. We presume that the grand jurors followed the instruction, thus eliminating any potential prejudice that may have flowed from the information improperly provided. See State v. Grant, 361 N.J. Super. 349, 359-61 (App. Div. 2003). There was no interference with the grand jury's decision-making process. See State v. Murphy, 110 N.J. 20, 35-36 (1988). The motion to dismiss the indictment was properly denied.

Affirmed.

 

Defendant also entered guilty pleas and was sentenced on charges in other indictments, which are not germane to this appeal.

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A-1387-04T4

March 13, 2006