STATE OF NEW JERSEY v. DARRYL A. HAMMARY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2919-04T42919-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARRYL A. HAMMARY,

Defendant-Appellant.

_______________________________________

 

Submitted May 30, 2006 - Decided June 27, 2006

Before Judges Fall and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-07-1379.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel and on the brief).

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent (H. John Witman, III, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Darryl A. Hammary was charged with others in Monmouth County Indictment No. 03-07-1379 with conspiracy to commit theft, third-degree, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4 (count one); forgery, third-degree, N.J.S.A. 2C:21-1a(1) (counts two, five, eleven and fourteen); uttering a forged instrument, third-degree, N.J.S.A. 2C:21-1a(3) (counts three, six, twelve and fifteen); theft by deception, third-degree, N.J.S.A. 2C:20-4 (counts four, seven, ten and thirteen); credit card theft, fourth-degree, N.J.S.A. 2C:21-6c(2) (count eight); fraudulent use of a credit card, third-degree, N.J.S.A. 2C:21-6h (count nine); possession of a controlled dangerous substance, third-degree, N.J.S.A. 2C:35-10a(1) (counts sixteen and seventeen); unlawful possession of a weapon, third-degree, N.J.S.A. 2C:39-5b (count eighteen); possession of a prohibited weapon, fourth-degree, N.J.S.A. 2C:39-3d (count nineteen); receipt of stolen property, third-degree, N.J.S.A. 2C:20-7a (counts twenty and twenty two); and possession of a weapon by certain persons, second-degree, N.J.S.A. 2C:39-7b (count twenty one).

On March 12, 2004, Judge Francis P. DeStefano denied a motion by defendant and two co-defendants to suppress evidence obtained in two searches. The judge subsequently denied defendant's motion for reconsideration. On June 14, 2004, defendant pled guilty to conspiracy to commit theft (count one); possession of CDS (count sixteen); and second-degree possession of a weapon for an unlawful purpose (count eighteen, as amended). Defendant was sentenced on October 29, 2004. On count eighteen, the judge sentenced defendant to eight years with a four-year period of parole ineligibility. On count one, the judge imposed a concurrent five-year term of incarceration, with a two-year period of parole ineligibility. The judge imposed a five-year concurrent term on count sixteen. Defendants' driving privileges were suspended for six months and appropriate assessments and fees were imposed. This appeal followed.

I.

We begin with a brief summary of the relevant facts. On January 22, 2003, an individual placed an order by phone for certain building materials at a home improvement store in Neptune, New Jersey. The caller identified himself as a person who we will refer to as W.W. The caller said that he would send one of his workers to the store with a check in the amount of $7,512.42 to pay for the supplies.

The next day, a man who identified himself as Luis Lugo (Lugo) went to the store and presented a check in the amount of $7,512.42. The check had been endorsed by W.W. The clerk became suspicious because the check had been endorsed by but not presented by W.W. An employee of the store contacted W.W. to confirm the sale and W.W. informed him that he had never placed the order nor had he signed the check. The store reported the incident to the Neptune Township police.

W.W. also reported the matter to the Middletown Township police. Upon further investigation, W.W. and his wife realized that three checks had been taken from their checkbook. They contacted the bank and were informed that the check in the amount of $7,512.42 made payable to the home improvement store had cleared on January 22, 2003. They were additionally informed that another missing check, written in the amount of $4,999.73 also had cleared the bank the same day.

The home improvement store and the police decided to go forward with the delivery of the materials that had been paid for with the forged check. On January 24, 2003, Lugo contacted the store and provided certain phone numbers where he could be reached. The delivery was to be made to an address in Asbury Park. Later in the day, Lugo could not be reached at the phone numbers he had provided. Delivery was attempted but no one was on hand to accept the supplies.

A caller phoned the store and advised that a mistake had been made and someone would pick up the supplies after 6:00 p.m. A truck arrived at the store around 6:20 p.m. Lugo was driving the truck and Wilfredo Esquilin (Esquilin) was with him. Lugo entered the store and presented the receipt. When Lugo left the store, he and Esquilin were arrested.

Detective James Hunt of the Neptune Township Police Department interviewed Lugo. Lugo said that Esquilin hired him to do construction work and had given him a check for $7,512.42 to pay for the building supplies. Lugo denied any knowledge of the theft or the forgery.

Hunt also questioned Esquilin, who was in possession of a brown check ledger and a fictitious driver's license in the name of W.W. Esquilin also was in possession of two checks drawn on Fleet Bank. One was made payable to Esquilin and the other was made payable to Lugo. Hunt later determined that the checks were personal checks that had been reported stolen on January 17, 2003. At the time of his arrest, Esquilin also was in possession of defendant's telephone bill, with an address of 150 Fifth Avenue, apartment 3B3, in Asbury Park.

When questioned by Hunt, Esquilin stated that he was involved with defendant in a scheme to obtain building materials with stolen and counterfeit checks. Esquilin said that defendant had provided him with the check for the home improvement store, as well as the two counterfeit Fleet Bank checks that he had with him when he was arrested. Esquilin told Hunt that he met defendant in the lobby of the building at 150 Fifth Avenue in Asbury Park. According to Esquilin, after defendant met him, defendant gave him the check for the home improvement store. Defendant then went to an apartment on the third floor and returned with the two Fleet Bank checks. Esquilin said that defendant planned to have him use one stolen check for the purchase of building supplies and cash the Fleet Bank checks.

Esquilin said that he tried to cash the two checks at a bank in northern New Jersey but he was not able to do so because he did not have the necessary identification. Esquilin contacted defendant, who told him to go to the Division of Motor Vehicles (DMV) to obtain identification. Esquilin went to the DMV and obtained photo identification. The following day, Esquilin tried to cash one of the Fleet Bank checks. The bank manager refused to cash the check. Esquilin called defendant and informed him that he had not be able to cash the check.

Esquilin told Hunt of his involvement with defendant in a similar scheme to obtain building materials at a building supply company in Tinton Falls. Esquilin said that defendant phoned in the order and the supplies were to be delivered to 1230 First Avenue in Asbury Park. The building supply company attempted to deliver the materials but no one was at the location to receive the order. Esquilin stated that defendant called the supply company, told the company that his workers had missed the delivery and said that someone would pick up the supplies. Esquilin later arrived at the supply company in a truck to obtain the materials. He presented a check in the amount of $4,999.73. The check was one of the checks stolen from W.W. Esquilin loaded the supplies into the truck, picked up defendant and drove to Newark, where the supplies were unloaded at a home under construction.

The police determined that the truck used to pick up the materials at the building supply company had been rented by Erik D. Morcilio (Morcilio). Hunt contacted Morcilio, who said that he rented the vehicle for Esquilin. Morcilio claimed that he did not know the truck would be used for criminal activity.

Hunt learned that Joseph Pangaro (Pangaro), a detective with the Ocean Township Police Department, was conducting an investigation into a similar scheme involving the acquisition of building supplies with counterfeit and forged checks. Through his investigation, Pangaro learned the materials obtained with forged checks had been delivered to two addresses in Asbury Park: 906 Cookman Avenue and 1100 Asbury Avenue. Pangaro observed certain building supplies at 906 Cookman Avenue being moved to 908 Cookman Avenue. He observed boilers on the ground between the two properties on Cookman Avenue. In addition, Pangao discovered that building materials had been signed for by a "John Smith," who exited the house at 908 Cookman Avenue and presented a counterfeit check to pay for the materials.

During his investigation, Pangaro spoke with Tom Young (Young), the superintendent of a building at 906 Cookman Avenue. Young initially denied any involvement in the counterfeit checks and said that he did not know anything about materials delivered to 906 Cookman Avenue. However, Young later informed Pangaro that defendant supplied counterfeit checks for building materials that were delivered to 906 Cookman Avenue.

Young additionally informed Pangaro that defendant stayed at 908 Cookman Avenue and an apartment on Fifth Avenue in Asbury Park. Through further investigation, Pangaro learned that 908 Cookman Avenue is the residence of defendant's sister, Donna Hammary (Donna). Based on additional information that he obtained and the building supplies he had observed at 908 Cookman Avenue, Pangaro concluded that the property was being used as a storage place for building materials purchased with stolen and counterfeit checks.

Hunt and Pangaro submitted affidavits in support of an application for warrants to search the premises at 908 Cookman Avenue and apartment 3B3 at 150 Fifth Avenue. The municipal court judge granted the application. In the ensuing searches, the police found cocaine, an automatic handgun, computer equipment, a printer, stolen checks, other office equipment and heroin. The grand jury handed up its indictment on June 23, 2003. Donna, Esquilin, Lugo and others were also named in the indictment. After defendant's motion to suppress the evidence obtained in the searches was denied, he pled guilty to three counts in the indictment.

Defendant appeals and raises the following issues for our consideration:

POINT I:

THE DEFENDANT CONTENDS THAT FACTS WITHHELD BY DETECTIVE HUNT IN HIS AFFIDAVIT FOR A SEARCH WARRANT WOULD HAVE OTHERWISE ESTABLISHED HIS INFORMANT AS LACKING ALL VERACITY HENCE UNDERMINING THE JUDGE'S DECISION AS AN INDEPENDENT MAGISTRATE.

POINT II:

THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING TO DETERMINE THE PROPER ALLOCATION OF JAIL CREDITS TOWARD HIS SENTENCE.

POINT III:

THE DEFENDANT'S RIGHT TO DUE PROCESS WAS VIOLATED WHEN THE TRIAL JUDGE APPLIED FACTS NOT STIPULATED OR CONSENTED TO BY THE DEFENDANT WHEN SENTENCING HIM TO A GREATER THAN PRESUMPTIVE TERM.

We have carefully considered these contentions and find them to be entirely without merit. For the reasons that follow, we affirm.

II.

Defendant first argues that the warrants obtained for the searches of apartment 3B3 at 150 Fifth Avenue and the residence at 908 Cookman Avenue lacked probable cause. Defendant argues that in the affidavits seeking the warrants, Hunt and Pangaro relied upon Esquilin's statements but failed to provide sufficient information to establish that Esquilin's statements were credible. Defendant further contends that the information provided by Hunt and Pangaro was prejudiced and tainted by omission and manipulation. We disagree.

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.

The record here shows that, when Hunt and Pangaro applied for the search warrants, they presented sufficient facts to establish that the information provided by Esquilin was credible. Although the officers were not aware of any instances where Esquilin had provided reliable information in the past, the information obtained by the officers in their investigations substantiated the basis of Esquilin's knowledge concerning defendant's involvement in the scheme to obtain construction materials using stolen and counterfeit checks. Esquilin admitted that he was a participant in the scheme. He was arrested while endeavoring to obtain materials at the home improvement store which were purchased with a stolen and forged check. The information provided by Esquilin clearly was based on inside knowledge.

The facts provided by the officers further established probable cause to believe that evidence concerning the theft and counterfeiting scheme would be found in the apartment at 150 Fifth Avenue. Esquilin provided information that tied defendant's criminal activity to the Fifth Avenue apartment. When he was arrested, Esquilin was in possession of two Fleet Bank checks, which Esquilin said that he had obtained from defendant in the lobby of the building at 150 Fifth Avenue. In addition, Esquilin had defendant's telephone bill, with the address 150 Fifth Avenue, apartment 3B3.

The police also provided sufficient information to establish probable cause to believe that evidence concerning the theft and counterfeiting scheme would be found at 908 Cookman Avenue. As we pointed out previously, during his investigation, Pangaro learned that defendant was using counterfeit checks to obtain building materials. Pangaro was informed that building materials had been ordered from a Tinton Falls supply company and delivered to 906 Cookman Avenue. Pangaro further observed building materials being moved from 906 Cookman Avenue to 908 Cookman Avenue. In addition, Young told Pangaro that defendant had given him counterfeit checks to pay for the delivery of the building supplies at 906 Cookman. Young told Pangaro that defendant stayed at 908 Cookman, which was the residence of defendant's sister. Pangaro also inspected the property at 908 Cookman and determined that it was being used to store building materials that had been obtained with counterfeit checks.

Defendant additionally argues that the affidavits submitted by Hunt and Pangaro were prejudiced and tainted by omission and manipulation of facts. We disagree.

Where, as in this case, a search warrant is challenged on the ground that it was obtained by use of false or incomplete information, the defendant must make a "substantial preliminary showing" that the person knowingly or with reckless disregard for the truth, included a false statement in a warrant affidavit, and if the statement is essential to the probable cause determination, the defendant is entitled to a hearing to challenge the veracity of the statement. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672 (1978). If the defendant proves such falsity by a preponderance of the evidence, the statement must be omitted, and the warrant set aside unless the remaining evidence is sufficient to establish probable cause. Id. at 156, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.

Defendant contends that Esquilin's assertion that defendant was involved in the scheme was brought into question by certain allegedly inconsistent statements. According to defendant, Esquilin told Hunt that he went with defendant to the building supply company on January 17, 2003 and presented a check in the amount of $4,999.73 but Merlin Alston (Alston), the company's sales clerk, said that Esquilin was the individual who came into the store and paid for the materials. Hunt included Esquilin's statement in the affidavit and did not mention Alston's statement. Defendant contends that if Hunt had included Alston's statement, Esquilin's assertion would have been revealed as a "lie, bringing the whole affidavit into question."

Defendant also points to other alleged inconsistent statements. Defendant says that Esquilin told the police that only he and defendant went to Newark to fence the merchandise, whereas Morcilio said that he also went with Esquilin to Newark. Furthermore, Esquilin asserted that he told Morcilio to rent a truck because Esquilin was moving but Morcilio told the police that Esquilin needed the truck to pick up the building materials. In addition, Esquilin said the defendant gave him a check in the lobby of the building at 150 Fifth Avenue but Lugo said that Esquilin tore a check out of a ledger and handed the check to Lugo to make the purchase.

We are not convinced that any of these purported inconsistencies rises to the level of a material misstatement of fact. Even if we accept defendant's assertions that these statements are inconsistent, the facts which remain in the affidavits are more than sufficient to establish Esquilin's veracity and the basis of his knowledge concerning the theft and counterfeiting scheme. Furthermore, Esquilin's assertions concerning defendant's involvement in the scheme, and the information generated by the police in the investigations, provided ample evidence for the judge's finding that there was probable cause for the searches. We therefore affirm the denial of defendant's motion to suppress and his motion for reconsideration.

III.

We turn to defendant's assertion that he was entitled to an evidentiary hearing to determine the "proper" allocation of jail time credits. In this matter, defendant entered his plea on June 14, 2004. Defendant previously had been sentenced in Monmouth County for certain offenses that were committed before the offenses that were charged in this case. When he entered his plea in this matter, defendant was awaiting sentence in Bergen County for certain offenses that were committed after the offenses involved here.

The plea agreement signed by defendant on June 14, 2004 stated that the prosecutor would recommend a sentence of eight years, with a four-year period of incarceration, concurrent to the sentence then being served and "concurrent to sentence to be imposed" in Bergen County. On August 13, 2004, defendant was sentenced in Bergen County to a five-year term concurrent to term imposed on the indictment in this case.

Defendant was sentenced in this matter on October 29, 2004. The sentences imposed here were concurrent to each other and concurrent "to [defendant's] present sentence." Defendant received 280 gap time credits and 31 jail time credits. Defendant argues that under the plea agreement, he should have been awarded an additional 280 jail time credits instead of 280 gap time credits. Again, we disagree.

Jail time credits are awarded for "any time served in custody in jail or in a state hospital between arrest and the imposition of sentence." R. 3:21-8. Credit is allowable only for the period of incarceration attributable to the crime for which the defendant was arrested and sentenced, not for other charges. State v. Hill, 208 N.J. Super. 492, 495 (App. Div.), certif. denied, 104 N.J. 412 (1986).

Gap time credits are awarded pursuant to N.J.S.A. 2C:44-5b when a defendant, "who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence . . . ." Ibid. In those circumstances, the defendant is awarded credit for the time served on the previously imposed sentence. State v. Franklin, 175 N.J. 456, 462 (2003) (citing State v. Carreker, 172 N.J. 100, 105 (2002)).

Here, defendant was awarded 280 gap time credits for the time served on the previously imposed Bergen County sentence. He was awarded 31 jail time credits, which is the time he was incarcerated in respect of the charges at issue in this case. Defendant is not entitled to have the gap time credits treated as jail time credits because that time was not served respecting the offenses charged in this case. Hill, supra, 208 N.J. Super. at 495.

Furthermore, there is nothing in the plea agreement which supports defendant's assertion that he had a reasonable belief that the gap time credits would be treated as jail credits. At the plea hearing, defense counsel commented that defendant would only be "getting gap time." Even so, at sentencing, the judge awarded defendant 31 days of jail time credit. The record does not provide any basis for defendant's belief that the gap time credits would be treated as jail credits.

Defendant additionally contends that he did not knowingly enter his plea because he circled on the plea form the answer "No" to the question of whether he was pleading guilty to a charge that required a mandatory period of parole ineligibility. Here, defendant pled guilty to a Graves Act offense which requires a period of parole ineligibility. The plea agreement and the statements on the record at the plea hearing made abundantly clear that defendant's sentence could include a four-year period of parole ineligibility. Defendant therefore was well aware that the sentence he was facing included a period of parole ineligibility, regardless of the answer he gave to the question on the plea form.

IV.

Defendant also argues that he is entitled to re-sentencing under State v. Natale, 184 N.J. 458 (2005), in which the Court held that New Jersey's system of presumptive-term sentencing under our Code of Criminal Justice violates the Sixth Amendment's right to trial by jury. Id. at 484. The Court invalidated the presumptive terms under the Code, thereby making the top of the statutory range for the crime charged the "statutory maximum" authorized by the jury verdict or the facts admitted by defendant at his guilty plea. Id. at 487. The Court ordered new sentencing hearings "in each affected case," at which the trial judge must determine whether "the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96.

Defendant was sentenced before Natale was decided. Judge DeStefano imposed a sentence that is longer than the presumptive term for a second-degree offense. N.J.S.A. 2C:43-6a(2); N.J.S.A. 2C:44-1f(1)(c). The judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk of re-offense), N.J.S.A. 2C:44-1a(6)(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) (need to deter defendant and others from violating the law). In making these findings, the judge relied solely on the convictions in this case and defendant's prior criminal record, which includes 21 arrests, two disorderly persons convictions and seven indictable convictions. We are satisfied that, in the circumstances, re-sentencing under Natale is not warranted. See State v. Abdullah, 184 N.J. 497, 506 n.2 (2005).

Affirmed.

 

(continued)

(continued)

20

A-2919-04T4

June 27, 2006