STATE OF NEW JERSEY v. RUFUS WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3069-04T43069-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RUFUS WILLIAMS,

Defendant-Appellant.

 

Submitted February 16, 2006 - Decided March 9, 2006

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 03-10-1237-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Tess Leopold, 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

Defendant entered a guilty plea to third-degree possession of CDS with the intent to distribute on or near a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a. The State agreed to recommend a seven-year prison term with a forty-five-month period of parole ineligibility.

Pursuant to the plea agreement, on June 4, 2004, the court imposed a seven-year prison term with a forty-five-month period of parole ineligibility pursuant to the Brimage guidelines. On appeal, defendant raises the following issues:

POINT I

THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED AS A RESULT OF A WARRANTLESS SEARCH AND SEIZURE SHOULD HAVE BEEN GRANTED.

POINT II

THE DEFENDANT'S SENTENCE TO A 7-YEAR TERM WITH 45 MONTHS OF PAROLE INELIGIBILITY IS ILLEGAL BECAUSE THE PAROLE DISQUALIFIER CANNOT EXCEED 42 MONTHS (ONE HALF OF THE MAXIMUM TERM)

POINT III

THE TRIAL COURT IMPROPERLY WEIGHED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES THEREBY ABUSING ITS DISCRETION AND IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

We have carefully considered defendant's arguments in light of the existing law. We conclude that the evidence defendant seeks to suppress was legally obtained because the police had probable cause to arrest him. Consequently, we affirm his conviction. Nevertheless, we agree with point two of defendant's brief that the seven-year term with a forty-five-month period of parole ineligibility is illegal because the parole disqualifier cannot exceed forty-two months, one-half of the maximum term. Accordingly, we vacate defendant's sentence and remand for resentencing.

We take the facts from the suppression motion hearing on February 19, 2004. Detective Mike Sutton and Officer Christopher Plowucha testified for the State. On July 30, 2003, Sutton was conducting surveillance with the aid of binoculars in the area of Remson Avenue and Suydam Street in New Brunswick. The area was known as a high drug area. At approximately 9:52 a.m., from a distance of approximately 100 feet, he observed a

black male wearing all blue top to bottom, blue pants, blue shirt, and blue baseball hat. He was standing on the corner having conversations in general with people who were just passing by. At one point in time a second black male wearing black sweat pants, one tee shirt, and black baseball cap rode up on a red mountain bike. The two had a brief conversation. The guy on the bike motioned for the guy to come up Sedam Street from Rumson Avenue. . . .

. . . .

[F]irst the guy in the blue handed over an amount of cash to the guy on the bicycle. The guy on the bicycle was wearing a white and black [sic], reached into his pocket, pulled out suspected cocaine, held it in his hand, the guy in the blue pulled out at least two bags, chose two bags from the palm of his hand. At that time put the rest of the cocaine back into his pocket as well as the guy who bought the two bags in blue [sic]. They both walked around the corner. The guy had gone to Rumson Avenue and started walking up towards Steven Street which is the next block up from Sedam. At that time I radioed to the backup unit which was in place 959 which had Officers Plowucha . . . and Gould . . . inside. Gave them the information as I was watching it. They were told to come into the area . . . the arrest of both individuals. They responded and came up from the avenue down Steven Street. At that time Officer Plowucha radioed to me and said they saw a guy matching the description on the bicycle and asked me just to verify it, at which time I did. They came down to the area of Rumson and Steven. I was able to hear a warning sign, warning signal of Marcos, . . . people on the corner recognized the narcotics van that we were and just give a warning out to, a general warning whenever they see the vehicles. That's usually how they do it. And then Officer Plowucha and Officer Gould effected the arrest.

Detective Sutton identified defendant in court as the individual that he saw hand over the cocaine. On cross-examination, he confirmed that both during and after the transaction he observed the actual bags of cocaine. Defendant was found to be in possession of fifteen dollars in cash when he was arrested.

Officer Plowucha was acting as a backup unit on an arrest team covering Detective Sutton's surveillance on the date of the arrest. He received a call from Detective Sutton requesting assistance; Sutton provided him with the description of an individual involved in the transaction. The description he received was that the "seller was on a red mountain bike wearing a black, black sweatpants, a white tee shirt and a black hat." Detective Sutton advised Officer Plowucha that the suspect was "going up Rumson Avenue." Officer Plowucha saw defendant on the bicycle and stopped him without incident, advising him that he was under arrest. He observed defendant reach into his right pocket and put something in his mouth. Having been advised by Detective Sutton that the suspect had placed cocaine in his right pocket, Officer Plowucha told defendant, "just spit it out." Defendant then spit out four bags of cocaine. Plowucha also identified defendant in court.

Based on these facts, the motion judge made the following findings:

I'm satisfied that with respect to the testimony before this Court that on July 30, 2003 Officer Mike Sutton of New Brunswick Police Department, a nine year veteran, member of the Anti-Crime Unit for two and a half years, involved in five hundred investigations, over three hundred arrests, was performing surveillance of the area of Rumson and Sedam Street in the City of New Brunswick, that he had set up his surveillance for approximately an hour before making the observations which were the subject of this motion to suppress, that he observed a black male dressed in blue, standing, talking to . . . a passerby, that he observed a second black male wearing a white shirt, black pants, on a red mountain bike, which was ultimately identified as defendant Rufus Williams in this case, that the two gentlemen engaged in a hand to hand transaction. According to the Officer's testimony he observed the cash passed from the gentleman who was wearing blue to the defendant, Mr. Williams, who took out from his right pocket the suspected cocaine and within open palm the other gentleman made two selections from his palm and the cash having also been viewed as passing from the first black male observed to the defendant who is Rufus Williams, that Officer Sutton radioed his observations to the backup units providing descriptions of the two individuals involved in the transaction and ultimately the backup units stopped the defendant Rufus Williams.

. . . .

Furthermore, the testimony of Officer Plowucha to the effect that the defendant was apprehended without incident was placed under arrest based upon the observations of the drug transaction and also his instruction to the defendant to spit out what was in the defendant's mouth. The defendant spit out four bags of . . . cocaine.

The Officer further testified that his observation was that the defendant upon realizing his was being pursued took the items from his right pocket and . . . placed them into his mouth and that was how he knew to instruct him to . . . discard them.

I'm satisfied that from the credible testimony presented the State has established the burden of proof beyond a reasonable doubt that no Fourth Amendment violation has taken place by reason of the determination that from the totality of the circumstances the police had probable cause to arrest the defendant Rufus Williams, and that the items of cocaine which he had placed in his mouth were properly obtained by reason of a search incident to a lawful arrest.

Probable cause to make an arrest "exists where a police officer has a well-founded suspicion or belief of guilt." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991); see also State v. Sullivan, 169 N.J. 204, 211 (2001). So long as the search of defendant is incident to a lawful arrest based on probable cause, a warrantless search is justified. State v. Goodwin, 173 N.J. 583, 598 (2002). "Probable cause has been defined as 'something sufficient to engender a belief somewhere between a bare suspicion and a conviction of guilt. . . . The issue is not whether the information which reached the officer was true or false but only whether the officer was reasonable in accepting the information as true.'" Ibid. (quoting State v. Burnett, 42 N.J. 377, 387 (1964)); see also Sullivan, supra, 169 N.J. at 210-11 (probable cause is "less than legal evidence necessary to convict though more than mere naked suspicion").

Here, the motion judge found Detective Sutton's testimony credible when he described his observation of defendant's involvement in the drug transaction. We give deference to the ability of the motion judge to determine the credibility of the witnesses. State v. Locurto, 157 N.J. 463, 470-71 (1999). The detective testified that he saw defendant physically take baggies of cocaine from his pocket and hand them to another individual. Detective Sutton provided Officer Plowucha with defendant's description, who recognized defendant based on that description. Given what Detective Sutton observed and related to Officer Plowucha, the officer had probable cause to arrest defendant and seize the drugs.

We turn next to defendant's sentence. While the State agreed to recommend a seven-year prison term with a forty-five-month period of parole ineligibility, the forty-five months of parole ineligibility exceeds more than one-half of the seven-year prison term. While this may have been a mathematical miscalculation, it renders the sentence illegal. See N.J.S.A. 2C:43-6f.

Defendant requests that the period of parole ineligibility be reduced by three months, which would be consistent with the statutory maximum parole disqualifier of one-half of the term of seven years. The State, however, requests that defendant be required to accept a legal sentence of seven and one-half years with a forty-month period of parole ineligibility. We leave the decision as to what is the appropriate sentence to the trial judge. We therefore do not consider the arguments in point three of defendant's brief, inasmuch as the trial court will again be required to set forth the reasons for the sentence imposed, including aggravating and mitigating factors.

 
We affirm defendant's conviction, vacate the sentence, and remand for resentencing consistent with this opinion. We do not retain jurisdiction.

State v. Brimage, 153 N.J. 1 (1998).

(continued)

(continued)

9

A-3069-04T4

March 9, 2006