STATE OF NEW JERSEY v. GUY JOACHIM

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2808-04T42808-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

GUY JOACHIM,

Defendant-Appellant.

__________________________________

 

Submitted: October 18, 2006 - Decided November 20, 2006

Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-04-495-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Karen Fiorelli, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of third degree possession of a controlled dangerous substance (CDS) (cocaine) contrary to N.J.S.A. 2C:35-10a(1) (Count One); second degree possession of cocaine with intent to distribute contrary to N.J.S.A. 2C:35-5a(1) and -5b(2) (Count Two); and second degree possession of cocaine with intent to distribute in or within 500 feet of a public park contrary to N.J.S.A. 2C:35-7.1 (Count Three). After merging Count One with Count Two, the judge imposed a nine-year term of imprisonment with a three-year period of parole ineligibility. On Count Three, defendant was sentenced to a nine-year prison term to be served concurrent to the term imposed on Count Two. The appropriate fees, fines, penalties, assessments and driving suspension were also imposed.

On the morning of January 5, 2002, three patrolmen of the Elizabeth Police Department Street Crimes Unit parked their unmarked police car across the street from the Kings Manor apartment complex on Jefferson Avenue in Elizabeth. The police had received complaints from residents and apartment owners about narcotics sales in the area near the complex. Specifically, police received information from complainants about a "Haitian male" who lived at apartment 452 K.

In response to these complaints, the officers set up a surveillance in the area of 450-458 Jefferson Avenue facing Jefferson Park. The officers positioned themselves to gain a full, unobstructed view of the front and side of the apartment complex. The weather was clear and nothing, except occasional passing vehicles, obstructed the officers' view. One of the officers, Giacomo Sacca, used binoculars for assistance.

Officer Sacca had been involved in fifty to one hundred arrests near the apartment complex. He had participated in approximately 750 drug-related arrests and received narcotics enforcement training during his seven and one-half years on the police force.

At approximately 9:30 a.m., from a distance of 300 feet, the officers observed a group of three to five males standing at the end of the driveway. Defendant, "a heavy-set Haitian male," was present and matched the complaining residents' and owners' description of the man dealing narcotics on the property.

On at least five occasions, the officers observed different people approach the group and converse briefly with defendant, who then guided the individual away from the group to the rear of the complex. Each time, the officers could not see what occurred in the back of the complex but they noticed that the individuals returned to the front of the building and departed quickly.

The officers also observed defendant as he walked to the driver's window of several vehicles that pulled into the driveway. Defendant spoke briefly with the occupants, went to the rear of the building out of the officers' view, and quickly returned to the cars, all of which departed soon thereafter. Although no exchange of narcotics had been observed at that point, Sacca suspected that drug transactions were occurring in the rear of the complex out of the officers' view.

The officers drove Sacca to the rear of the complex where he exited the car and entered building 452 through an unlocked door. Then the officers returned to the original surveillance location in front of the complex, while Sacca climbed to the third floor of the building and looked into the rear of the complex. Sacca was approximately twenty-four feet from the ground and nothing obstructed his view.

From his new surveillance point, Sacca observed defendant walking with a woman known to the officer as Kimberly Hockenberry, who had previous narcotics arrests. Defendant and Hockenberry stopped below the window where Sacca was positioned. Defendant told Hockenberry to "wait" by building 452 and he walked over to building 454.

Sacca left his position at the window and walked down the stairs and into the foyer where he opened the door and watched defendant walk into building 454. Although Sacca was not in uniform, Hockenberry recognized him and immediately turned and walked away very fast. Sacca did not pursue Hockenberry but followed defendant.

The officer stood outside the entrance of building 454 where he was able to view the interior through the partially opened glass door. Sacca was able to see the hallway, stairs, landing and foyer. The officer saw defendant standing behind the door in the foyer and noticed that no one else went up or down the stairs.

As defendant exited the building, Sacca ducked behind the building and saw defendant walk with his right hand at his side clenched in a fist towards the place where he left Hockenberry. At this point, Sacca approached defendant from behind, identified himself as a police officer, advised defendant not to run, and ordered him to drop to his knees. Defendant complied. Sacca then grabbed defendant's wrist. The officer ordered defendant to open his clenched hand and defendant complied. Four clear glass vials dropped to the ground. Two vials had red caps, the other two had gray caps; all four contained a white substance later identified as cocaine.

Sacca handcuffed, arrested, and searched defendant. The officer found a set of keys and $253 in small denominations of U.S. currency on defendant. Sacca called for assistance and Officers Guarino and McDonough responded.

Sacca then entered building 454, which defendant had recently exited. The officer searched the area behind the door where defendant had been standing and saw a brown paper bag stuffed inside the coils of the radiator. The bag contained seven more vials, five with gray caps and two with red caps. The newly discovered vials and caps matched those found in defendant's hand.

After collecting the bag and its contents, Sacca returned to defendant and asked him if he lived in the complex. Defendant responded "yes I live there with my brother" and motioned with his head to a window where a woman was standing. The woman stated she neither knew nor lived with defendant.

Following confirmation that defendant resided in building 452 apartment K, Officers Sacca, Kelly, Mikros, and Guarino went to defendant's apartment to search it. Sacca brought the keys found on defendant. Sabrina Sulo, defendant's girlfriend, responded to his knock. Sacca advised her that he had arrested defendant. With Sulo's permission, Sacca confirmed that the keys fit the lock on the apartment door.

Sulo informed the officers that she was the mother of defendant's children. When Sacca asked Sulo if she resided in the apartment, she stated that "she lived in Union, but she often stayed in the apartment." Sacca asked her to specify how long she stayed at the apartment and she responded "at least three nights a week." Sulo also showed him her clothing, her children's clothing, the bed she shared with defendant, and various toiletries. No other adults were present. Two of the four children in the apartment were defendant's.

Sacca concluded that Sulo had authority to consent to a search and he asked her permission to search the apartment. When she agreed, the four officers entered the apartment and searched it. Sulo also signed a permission to search form. The officers discovered a large white bag stuffed between the refrigerator and the wall. Inside this bag were other bags containing loose amounts of either "crack type cocaine" or powdered cocaine. A separate bag within the larger bag contained ninety glass vials with gray caps filled with cocaine. The entire bag contained just over fifty-six grams or two ounces of cocaine.

Officers Mikros and Sacca looked inside a large black garbage bag discovered next to a bed. The garbage bag contained boxes of glass vials in different sizes, numerous plastic bags, bags of vial caps in various colors, and a cell phone with a battery. The officers also recovered a leather bag containing $3,400 in U.S. currency in small denominations.

At trial, Sulo testified that the drugs in the apartment did not belong to her, and she was unaware of the contents of the black bag removed by the police. She further stated that she had seen defendant, and only defendant, bring drugs into the apartment on prior occasions, but not on the day of his arrest. Suzanne Deegan, a detective in the Union County Prosecutor's Office assigned to the Narcotics Strike Force, testified as an expert. Based on a hypothetical drawn from the evidence, Deegan concluded that the hypothetical "Mr. X" was in possession of narcotics with the intent to distribute. Defendant testified on his own behalf. He stated that he bought four vials of cocaine from Jason Lu on the morning of January 5, 2002, after meeting him in the hallway of the apartment complex. Defendant testified that he had been walking around the complex trying to find the best price for drugs and that he had $253 in his possession. Defendant said he had bought drugs from Lu on prior occasions.

Defendant testified that several other people, including his uncle, sister, mother, girlfriend, friends, and the landlord, had keys to his apartment. Defendant further testified that he did not understand the correlation between the vials of cocaine found on him and those found in the foyer and his apartment. Defendant also testified that he knew nothing about the drugs.

On appeal, defendant raises the following points:

POINT I

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.

A. THE STATE FAILED TO PROVE THAT THE WARRANTLESS SEARCH AND SEIZURE OF THE DEFENDANT WAS LAWFUL.

1. THE POLICE LACKED REASONABLE SUSPICION TO JUSTIFY THE DETENTION OF THE DEFENDANT.

2. THE POLICE LACKED PROBABLE CAUSE TO ARREST AND TO CONDUCT A WARRANTLESS SEARCH OF THE DEFENDANT FOR NARCOTICS.

3. THE INFORMATION PURPORTEDLY ESTABLISHING THE JUSTIFICATION FOR THE SEARCH AND SEIZURE WAS STALE.

B. THE STATE FAILED TO PROVE THAT THE POLICE HAD A VALID CONSENT TO CONDUCT A WARRANTLESS SEARCH OF THE DEFENDANT'S RESIDENCE.

1. THE POLICE DID NOT HAVE REASONABLE SUSPICION TO BELIEVE THEY WOULD FIND EVIDENCE TO JUSTIFY THE REQUEST FOR A CONSENT SEARCH.

2. THE POLICE LACKED ACTUAL AND APPARENT AUTHORITY TO SEARCH THE RESIDENCE.

3. THE CONSENT SEARCH WARNINGS WERE INADEQUATE.

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER EXCLUSION OF RELEVANT DEFENSE EVIDENCE.

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED (NOT RAISED BELOW).

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE.

A. THE TRIAL COURT IMPROPERLY ADMITTED OTHER-CRIME EVIDENCE (NOT RAISED BELOW).

B. THE TRIAL COURT FAILED TO GIVE THE JURORS A PROPER LIMITING INSTRUCTION ON THE PERMISSIBLE AND IMPERMISSIBLE USES OF THE OTHER-CRIME EVIDENCE (NOT RAISED BELOW).

POINT V

THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE (INTENT TO DISTRIBUTE CDS WITHIN 500 FEET OF A PUBLIC PARK CONTROLLED BY A LOCAL GOVERNMENT UNIT) BEYOND A REASONABLE DOUBT (NOT RAISED BELOW).

POINT VI

THE SENTENCE IS EXCESSIVE.

A. THE TRIAL COURT ERRED BY IMPROPERLY BALANCING THE AGGRAVATING AND MITIGATING FACTORS.

B. THE DEFENDANT MUST BE RESENTENCED BECAUSE HE WAS SENTENCED ON THE BASIS OF AN UNCONSTITUTIONAL SENTENCING SCHEME.

Defendant argues that the police lacked a reasonable suspicion to justify his detention and lacked probable cause to arrest him and to search him incident to that arrest. We consider these contentions without merit.

Encounters between citizens and police may take various forms ranging from field inquiries to arrest and searches incident to arrest. State v. Maryland, 167 N.J. 471, 489 (2001). Each encounter is governed by a different standard. Ibid. Even though the encounter may quickly escalate from a field inquiry to an arrest, the requisite standard for each encounter must be recognized and applied to each action. Ibid.

A law enforcement officer may detain an individual briefly for questioning if the officer has a reasonable articulable suspicion that the individual is engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968); State v. Citarella, 154 N.J. 272, 280 (1998). A person is detained or seized when the surrounding circumstances would lead a reasonable person to believe that his or her freedom to leave has been curtailed. Florida v. Rover, 460 U.S. 491, 502, 103 S. Ct. 1319, 1326 75 L. Ed. 2d 229, 239 (1983); State v. Stovall, 170 N.J. 346, 361 (2002). Even a brief detention for a limited time is considered a seizure, if the individual reasonably believes that he is not free to leave. State v. Dickey, 152 N.J. 468, 475 (1998).

Here, when Sacca approached defendant from the rear and ordered him to stop and drop to his knees, defendant was detained. The officer also had substantially more than a reasonable articulable suspicion that defendant was engaged in the distribution of CDS. The order to stop and drop to his knees followed an extended surveillance in which defendant engaged in brief encounters with pedestrians and the occupants of motor vehicles under circumstances that would lead an experienced narcotics detective to believe that defendant was engaged in the sale of illegal drugs. On five separate occasions a person approached defendant. After a brief conversation, defendant and the person walked to the rear of a building and quickly returned. The person who had approached defendant then left the scene but defendant remained.

For the final transaction, the surveilling officer had changed his location. Thus, he was able to observe defendant and Hockenberry, a known narcotics user, stop below the window at which he was standing and heard defendant tell the woman to wait. The detective followed defendant into the neighboring building but not before the detective encountered the woman, and she immediately left the scene. The officer observed defendant behind a door; no one else was present. When defendant left the building, defendant obviously was holding something in his right hand that he was trying to conceal. These observations, coupled with the officer's training and experience, provided vastly more than a reasonable articulable suspicion that defendant was engaged in criminal activity, namely, serial drug transactions. Thus, the investigatory stop was justified and not constitutionally infirm.

Indeed, Sacca had probable cause to arrest defendant. "[P]robable cause is the constitutionally-imposed standard of determining whether a search and seizure is lawful." State v. Novembrino, 105 N.J. 95, 105 (1987). Probable cause "exists where a police officer has a well-founded suspicion or belief of guilt." State v. Bates, 202 N.J. Super. 416, 422 (App. Div. 1985). A determination of the existence of probable cause depends on "the totality-of-the-circumstances." Ill. v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983); State v. Moore, 181 N.J. 40, 46 (2004).

Probable cause may be based on information received from a citizen-informer, State v. Gagen, 162 N.J. Super. 105, 111 (App. Div. 1978), as in this case. Here, however, there was much more than numerous citizen complaints of drug trafficking in the area and the reputation of the area as riddled by crime. The officer had observed defendant engage in several transactions that were typical of the sale of illicit drugs. He encountered a person known to him as a user of illegal drugs, who left the scene quickly once she recognized the officer. The totality of the circumstances provided ample justification to arrest defendant and to search him incident to his arrest.

Also without merit is the argument that the information regarding the character of the neighborhood and the criminal activity occurring there was stale. The police responded to the area in response to various citizen complaints. On their arrival, they established surveillance of the scene. Defendant ignores that surveillance and the activity observed by Sacca. In short, the initial stop and subsequent arrest were premised on considerably more information than complaints from concerned citizens.

Following his arrest, the police conducted a warrantless search of defendant's apartment. The search was premised on the consent given by defendant's girlfriend. Defendant argues that the police lacked reasonable suspicion to ask his girlfriend to consent and further contends that she lacked the authority to consent.

Recently, the Court held that a request to search a home need not be premised on reasonable suspicion. State v. Domicz, 188 N.J. 285, 309-10 (2006). The Court reasoned that a police officer was required to have a reasonable suspicion of criminal behavior to request a motorist for consent to search an automobile due to the problem presented by racial profiling and the coercion inherent in the situation of a motorist stopped by the side of the road and at risk of the issuance of a traffic citation. Id. at 305-06. By contrast, "[t]he choices are not so stark for the person who, in the familiar surroundings of his home, can send the police away without fear of immediate repercussions." Id. at 306 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 247, 93 S. Ct. 2041, 2058, 36 L. Ed. 2d 854, 874 (1973)).

Defendant's contention that the police proceeded without valid consent to search his apartment is also without merit. Consent is a well-recognized exception to the requirement that a warrant is required to search a home. Schneckloth, supra, 412 U.S. at 219, 93 S. Ct. at 2043-44, 36 L. Ed. 2d at 858. Consent may be obtained from the person whose property is to be searched, id. at 218, 93 S. Ct. at 2041, 36 L. Ed. 2d at 854; from a third party who possesses common authority over the property, State v. Maristany, 133 N.J. 299, 305 (1993); or from a third party whom the police reasonably believe has authority to consent to the search. State v. Suazo, 133 N.J. 315, 320 (1993) (citing U.S. v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974)). Such authority may arise from "mutual use of the property by persons generally having joint access or control for most purposes." Ibid. Furthermore, the police need only have a reasonable belief that the person giving consent has the authority or sufficient control to do so. State v. Crumb, 307 N.J. Super. 204, 243 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998).

Following an evidentiary hearing, Judge Malone concluded that defendant's girlfriend had authority or control over the apartment. The evidence presented at the hearing established that she and defendant were the parents of two children, that she and the children occupied the apartment three days a week, that they kept some of their belongings in the apartment, and that she had a key to the apartment that allowed her to come and go at will. These findings are well-supported by the record, State v. Locurto, 157 N.J. 463, 470-71 (1999), and form a substantial basis to conclude that she exercised sufficient authority or control of the apartment to consent to a search. Similarly, Sulo's conduct demonstrated that she understood that she had a choice to cooperate or to refuse entry. See State v. Farmer, 366 N.J. Super. 307, 314 (2004) (consent to search will be considered voluntary even in the absence of advice that consent may be withheld when the conduct of the person giving consent is entirely cooperative).

Defendant also complains that Sacca rendered an opinion that defendant was engaged in the sale of cocaine. Defendant urges that this testimony by a lay witness was impermissible and highly prejudicial. We disagree that the admission of this testimony, to which there was no objection at trial, requires a new trial.

During the course of his description of the surveillance, Sacca explained the reason for the alteration of his vantage point. His explanation contained his belief that defendant was engaged in the distribution of illegal drugs. Although he was presented as a fact, rather than expert, witness, we discern no basis to hold that the expression of his belief or opinion requires a new trial. First, Sacca possessed the training and expertise to render an opinion or interpretation of defendant's conduct. Of greater significance, the State presented a well-qualified expert who testified that defendant's conduct was consistent with the distribution of illegal drugs.

The balance of the arguments advanced by defendant that address trial error are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant's contention, however, that his sentence is unconstitutional has merit.

On counts two and three, both second degree offenses, the trial judge imposed concurrent nine-year base terms. At the time of sentencing, the presumptive term for a second degree offense was seven years. N.J.S.A. 2C:44-1f(1)(c). The imposition of a base term in excess of the extant presumptive term is contrary to State v. Natale, 184 N.J. 458, 484 (2005), and we remand for resentencing.

The conviction is affirmed; the sentence is vacated and the matter is remanded for resentencing in accordance with this opinion.

 

 

(continued)

(continued)

18

A-2808-04T4

November 20, 2006

 


Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.