STATE OF NEW JERSEY v. GREGORY CLARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3213-03T43213-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY CLARK,

Defendant-Appellant.

 

Submitted: November 2, 2005 - Decided:

Before Judges Stern, Fall and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Number 03-01-340.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Brigliadoro, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Gregory Clark appeals from his convictions on drug charges and from the sentences imposed. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

Defendant was charged in Camden County Indictment Number 340-01-03 with two counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (counts one and three); third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1), -5b(3) (count two); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3) (count four); third-degree possession of cocaine with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count five); and third-degree conspiracy to possess cocaine with the intent to distribute, N.J.S.A. 2C:5-2, 2C:35-5b (count six). Co-defendant Charles K. Waugh was also charged in counts three through six.

Previously, on June 18, 2001, defendant had pled guilty to third-degree possession of a controlled dangerous substance under count one of Camden County Indictment Number 1147-04-01, and had been sentenced to a two-year period of probation. Based on the charges against him in Indictment Number 340-01-03, defendant was charged with a violation of probation.

Prior to trial on the charges contained in Indictment Number 304-01-03, defendant's applications to compel disclosure of the police surveillance location and disclosure of the identity of the confidential informant were denied. Tried to a jury, defendant was convicted of all charges contained in the indictment.

The trial judge granted the State's application for imposition of an extended term pursuant to N.J.S.A. 2C:44-3a. On the third-degree school-zone conviction on count five, the trial judge sentenced defendant to a ten-year extended term of imprisonment, with a three-year period of parole ineligibility. The judge also imposed flat ten-year terms of imprisonment on each of the third-degree convictions on counts two and four, concurrent with each other, and with the term imposed on count five. The conviction on count six was dismissed, and the remaining convictions on counts one, three and five were merged. Applicable mandatory fines and penalties were also assessed.

As a result of these convictions defendant pled guilty to the violation of probation on Indictment Number 1147-04-01. The trial judge terminated his probation, and sentenced defendant to a flat three-year term on the violation of probation, to run consecutive to the sentences imposed on the convictions in Indictment Number 340-01-03.

The charges against defendant in Indictment Number 340-01-03 arose from an incident that occurred during the evening hours of July 3, 2002, in Camden. At approximately 8:00 p.m., acting on a tip from a confidential informant, members of the Camden County Police Department and Camden County Prosecutor's Office were conducting a drug surveillance operation in the vicinity of 1119 Empire Avenue, which was located approximately three or four houses from the intersection of Park Avenue. Detective Angel Ramos was stationed under a streetlight approximately thirty to forty feet from that location, and had an unobstructed view. At approximately 8:25 p.m., Detective Ramos observed defendant exit the building, cross the street, and enter an alley behind the 1400 block of Park Avenue. Approximately ten minutes later a red Oldsmobile Cutlass Supreme, occupied by four males, including defendant, arrived at 1119 Empire Avenue. Defendant exited the vehicle and entered the building. Two or three minutes later, defendant again exited the building, and from that same alleyway a female emerged, who crossed the street and approached defendant, who was then standing on the sidewalk in front of the building at 1119 Empire Avenue. After the two exchanged a brief conversation, defendant reached into his right-front pants pocket, retrieved a small item and gave it to the woman in exchange for paper currency. The woman then re-crossed the street and disappeared into the alleyway.

Based on his extensive experience in narcotics investigations and arrests, Detective Ramos believed he had witnessed an illegal narcotics transaction. He then saw defendant walk back to the Oldsmobile vehicle and hand one of the passengers, Raymond Koonce, a small item in exchange for paper currency. Defendant then re-entered the vehicle and the Oldsmobile pulled away, turning right onto Park Avenue. Detective Ramos believed he had witnessed a second narcotics transaction, so he radioed the back-up units, provided a description of the Oldsmobile, its license tag number, direction of travel, and directed that the vehicle be stopped.

The Oldsmobile was stopped approximately four blocks from 1119 Empire Avenue by Detective Shane Sampson and his fellow officers at the intersection of Park Avenue and Baird Boulevard. A search of the occupants of the Oldsmobile disclosed that defendant possessed $592 in paper currency, and that Koonce had a small clear ziplock bag of crack cocaine in the right-front pocket of his pants. Detective Ramos then arrived at the scene and identified defendant and Koonce as the persons he had earlier observed engaging in a hand-to-hand transaction.

Thereafter, at approximately 10:00 p.m., Detective Sampson returned to 1119 Empire Avenue with other officers. He knocked on the door, and identified himself as a police officer. The male answering the door from inside yelled "it's the cops, get rid of it." Hearing footsteps moving away from the closed door, Detective Sampson entered the residence. On the second floor, in a cluttered bedroom, he found Waugh sitting on a bed. Waugh admitted that he lived there and gave Detective Sampson permission to search the dwelling. Detective Sampson found four small, clear ziplock bags of crack cocaine in a small tin mint box located on the bed where Waugh was sitting. The ziplock bags were identical to the bag possessed by Koonce when he was arrested earlier.

Waugh pled guilty and testified at defendant's trial. He identified defendant and stated that on July 3, 2002, prior to their arrests, he and defendant had been bagging crack cocaine at 1119 Empire Avenue. Waugh stated that he allowed defendant to use his premises for that purpose in exchange for obtaining cocaine for his own use. Koonce testified on behalf of defendant, claiming that defendant had not sold him any drugs and that the ziplock bag had been planted on his person by the police officers who had stopped the Oldsmobile.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE TRIAL JUDGE'S DENIAL OF DEFENDANT'S APPLICATION TO DISCLOSE THE POLICE SURVEILLANCE LOCATION CONSTITUTED AN ABUSE OF DISCRETION AND VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE CROSS-EXAMINATION.

POINT II

THE TRIAL JUDGE'S DENIAL OF DEFENDANT'S MOTION FOR DISCLOSURE OF THE CONFIDENTIAL INFORMANT'S IDENTITY WAS AN ABUSE OF DISCRETION WHICH RESULTED IN A DENIAL OF THE DEFENDANT'S RIGHT TO DUE PROCESS.

POINT III

THE TRIAL COURT'S FAILURE TO SUPPRESS EVIDENCE OBTAINED AS A RESULT OF DEFENDANT'S UNLAWFUL ARREST CONSTITUTED PLAIN ERROR. (U.S. CONST. AMENDS. IV AND XIV; N.J. CONST. (1947), ART. I, PAR. 7) (NOT RAISED BELOW).

POINT IV

THE EVIDENCE SEIZED IN THE RESIDENCE LOCATED AT 1119 EMPIRE AVENUE SHOULD HAVE BEEN SUPPRESSED AS IT WAS OBTAINED AS A RESULT OF AN INVALID SEARCH (NOT RAISED BELOW).

POINT V

THE STATEMENT HEARD BY DETECTIVE SAMPSON WHILE HE WAS AT THE FRONT DOOR OF 1119 EMPIRE AVENUE WAS NOT ADMISSIBLE AS THE STATE NEVER ESTABLISHED WHO MADE IT OR WHO IT WAS MADE TO.

POINT VI

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE BECAUSE THERE WAS NO EVIDENCE PRESENTED WHICH ESTABLISHED THAT THE DEFENDANT IN ANY WAY POSSESSED CDS, DISTRIBUTED CDS, INTENDED TO DISTRIBUTE CDS OR WAS INVOLVED IN A CONSPIRACY WITH CHARLES WAUGH TO DO SO.

POINT VII

THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND CONSTITUTED PLAIN ERROR (NOT RAISED BELOW).

POINT VIII

THE FAILURE OF TRIAL COUNSEL TO FILE A MOTION TO SUPPRESS EVIDENCE AND TO MOVE FOR A NEW TRIAL AFTER THE JURY VERDICT AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT IX

THE TRIAL JUDGE ABUSED HIS DISCRETION IN IMPOSING A). AN EXTENDED TERM OF IMPRISONMENT AS HE FAILED TO DETERMINE THERE WAS A NEED TO PROTECT THE PUBLIC; B). A TERM OF IMPRISONMENT GREATER THAN THE PRESUMPTIVE TERM AS THIS DETERMINATION VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO A TRIAL BY JURY AND DUE PROCESS OF LAW; C). A CONSECUTIVE SENTENCE WITH RESPECT TO DEFENDANT'S VIOLATION OF PROBATION ON INDICTMENT NO. 1147-04-01.

I.

Defendant first argues that he was denied his right to effective cross-examination by the trial judge's denial of application to disclose the police surveillance location. The trial judge held an in-camera hearing outside the presence of defendant and defense counsel and denied the motion, stating in pertinent part:

I'm satisfied from the testimony of Detective Ramos that the disclosure of the surveillance location would compromise present and future prosecutions. And I also find it would possibly endanger lives or property, including those of police officers involved in this investigation or in this area of investigation.

The record will be sealed for Appellate review.

Defendant contends that "the trial judge abused his discretion in prohibiting disclosure of the surveillance site thereby denying the defendant his right to a fair trial" since "the surveillance location was crucial with respect to the defendant's ability to cross-examine Detective Ramos about his observations and to put forth a defense." We disagree. The State established a realistic possibility that disclosure of the surveillance location would compromise present or future prosecutions or possibly endanger lives or property. On the other hand, defendant failed to demonstrate a substantial need for the surveillance location or that the failure to provide same had deprived him of his right to a fair trial.

In State v. Garcia, 131 N.J. 67, 70 (1993), the Court first recognized the "surveillance location privilege," which allows the State to "refuse to disclose the exact location from which law enforcement officers observe criminal activity." This privilege is grounded in N.J.R.E. 515, the "official information privilege," which provides:

No person shall disclose official information of this State or of the United States (a) if disclosure is forbidden by or pursuant to any Act of Congress or of this State, or (b) if the judge finds that disclosure of the information in the action will be harmful to the interests of the public.

[N.J.R.E. 515.]

When evaluating whether this privilege may be exercised, "[t]rial courts must consider possible disclosure of surveillance locations on a case-by-case basis," utilizing a balancing test. Garcia, supra, 131 N.J. at 80. The appropriate standard of review for a denial of a motion to disclose a surveillance location is "whether, after weighing the competing factors, the trial court abused its discretion." Id. at 81.

The facts in Garcia are analogous to the facts in the present case. Id. at 71. In Garcia, police officers conducting surveillance at a location based on an informer's tip observed Garcia and an accomplice making what appeared to be drug transactions. Ibid. The officers apprehended Garcia. Ibid. The officers did not find any drugs or money on him, but found heroin in a nearby freezer that he had been utilizing. Ibid. Garcia was convicted of several drug charges. Id. at 72. On appeal, he asserted that the suppression of the surveillance site had unconstitutionally limited his right of cross-examination. Ibid. The Court disagreed, finding that the record "disclose[d] sufficient opportunity to cross-examine the officers even without inquiring about the exact surveillance location." Id. at 82.

In reaching that conclusion, the Court set forth the appropriate standard for evaluating the new surveillance-location privilege. Id. at 76-83. First, the State must "convince a court that disclosure would compromise an important public interest" by demonstrating "a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property." Id. at 77-78. Second, "if the trial court finds that the state has met its initial burden . . . a defendant may then request a[] . . . hearing to attempt to show substantial need for the information." Id. at 81. The information must be provided to the defendant if he or she demonstrates a special need, since:

application of the privilege must not deprive a defendant of the right to a fair trial. . . . A defendant's right to cross-examine adverse witnesses is one of the most important protections afforded by the Sixth Amendment to the United States Constitution and Article 1, Paragraph 10 of our State Constitution.

[Id. at 79-80.]

Thus, in some cases, "particularly those in which the only evidence offered against a defendant is the testimony of the surveillance officer, a court may determine that disclosure is warranted." Id. at 82 (emphasis added).

However, "[a]bsent some showing of need by a defendant for the exact surveillance location, the trial court should deny its disclosure," because "[i]n most case, a defendant can conduct effective cross-examination at trial without learning the exact surveillance location." Id. at 80-81. The Garcia Court explained that this did not bar a defendant from all inquiry into the surveillance location. Ibid. The Court acknowledged that "some information is so vital that we can envision few circumstances in which a defendant would not be entitled to it." Ibid. This vital information includes the distance from which the observation was made, whether the witness used some vision- enhancing article, whether the officer observed the alleged crime from an elevated position, and the officer's angle of sight. Id. at 81-82.

In State v. Ribalta, 277 N.J. Super. 277 (App. Div. 1994), detectives conducted a surveillance from a confidential location and observed the defendant engage in what appeared to be drug transactions. Id. at 284-86. "The defendant was allowed to inquire about distance, angle, elevation, whether the view was obstructed and if any visual aids were used", but not the precise surveillance location. Id. at 289-90. We held that "the trial judge properly concealed the surveillance location" and that "the limitations on cross-examination did not violate the defendant's right of confrontation[,]" ibid., because

disclosing the location of the site would only have been of peripheral assistance to the defense. Although defendant argued that he did not have any drugs on him, very little money, and that there may be a mistaken identity, the trial court found that these issues could be explored without knowing the exact location of the surveillance.

[Id. at 289.]

Here, Detective Ramos testified in camera that disclosure of the precise surveillance location would jeopardize the lives of police officers in future investigations and endanger public property. Based on this testimony, defendant was not given the exact surveillance location. However, defendant was provided with all of the "vital" information about the location. See State v. Zenquis, 131 N.J. 84, 89 (1993) (finding application of the surveillance location privilege unwarranted because the defendant's need for that location information was substantial as the State's case turned almost exclusively on the surveillance officer's testimony) Unlike Zenquis, this is not a case in which the only evidence against the defendant was the testimony of the surveillance officer. Here, disclosure of the location of the site would only have been of peripheral assistance to the defense. See Garcia, supra, 131 N.J. at 80-82; Ribala, supra, 277 N.J. Super. at 289-90. Therefore, defendant has failed to demonstrate how the exact location would have enabled him to more effectively cross-examine Detective Ramos.

Indeed, courts usually deny disclosure of the surveillance location when the observations of the surveillance officer have been corroborated by other evidence. Ibid. In State v. Laws, 262 N.J. Super. 551 (App. Div.), certif. denied, 134 N.J. 475 (1993) we held that

defendant's participation was corroborated by the officer's description of defendant's clothing and the unusual addition of his carrying a cane. . . . Additionally, one of the arresting officers testified that when he read the report of the arresting officer . . . it caused him to remember that defendant had been carrying a cane when he was arrested. There thus was little likelihood that defendant had merely walked by the scene following the detailed observations of the seven drug transactions, and had been mistaken for the individual who had participated in the drug sales.

[Id. at 560.]

Here, the only reason defendant could want the precise surveillance location would be to dispute the veracity of Detective Ramos's testimony as to the drug transactions he observed. However, Detective Ramos's testimony was corroborated by the money found on defendant, the cocaine found on Koonce, the drugs discovered at 1119 Empire Avenue, and the testimony of Waugh. Therefore, given the substantial corroborating evidence testified to by the witnesses, defendant has failed to demonstrate how concealment of the exact surveillance location itself deprived him of effective cross-examination or how disclosure of that exact location was essential or helpful to a fair determination of his case. Therefore, we conclude that the trial judge correctly employed the balancing test and determined that the surveillance location should not be disclosed because it "would compromise present and future prosecutions" and "would possibly endanger lives or property."

II.

Defendant also argues that his right to due process was denied by the trial court's failure to disclose the identity of the confidential informant. Prior to trial, defendant sought disclosure of the identity of the confidential informant whose tip had led the police to set up surveillance outside 1119 Empire Avenue on July 3, 2002. Defendant argued that he was entitled to this information because the informant had actively participated in the police transaction. The State opposed disclosure, arguing that the informant was only involved at the investigative stages and had nothing to do with the ultimate charges against defendant. After conducting an analysis of relevant case law, the trial court denied defendant's motion to disclose the identity of the confidential informant, stating in pertinent part:

The information provided by the informant was more akin to a tip, rather than active participation. There is no claim in this case that the informant was present at the transaction which is charged in this indictment . . . .

To make it clear, there is no claim that the confidential informant was present at the time of the drug transactions that are the subject of the indictment.

There is an argument that the confidential informant was, in fact, a participant in the preliminary stages of the investigation. But, even in that event, divulgence of his or her identity is not warranted because the Supreme Court has expressly held that Courts generally deny disclosure where the informer plays only a marginal role such as participating in the preliminary stages of a criminal investigation.

Here when the court evaluates the defendant's need for the identification of the confidential informant, it rises to nothing more than speculation as to that assertion.

The defendant argues that an entrapment defense is reasonably plausible and that the confidential informant was acting as an agent of the State or perhaps actually a law enforcement officer involved in criminal acts.

But, these are speculative theories at best and cannot be the basis for the court to compel the revealing of the identity of the informant.

A privilege is maintained by the courts to encourage communication between law abiding citizens and law enforcement agencies. Because of the policy advanced by open communication between law enforcement and informants, the Supreme Court of New Jersey has held the presumption in favor of non-disclosure should be upheld absent a substantial showing of need.

The defendant in this case has not proffered any theory that would overcome this presumption.

New Jersey courts have acknowledged that because informants serve an indispensable role in police work, their continued cooperation must be encouraged. State v. Milligan, 71 N.J. 373, 381 (1976); State v. Williams, 356 N.J. Super. 599, 603 (App. Div. 2001). "For this reason, the so-called 'informer's privilege' has long been considered essential to effective enforcement of the criminal code." Milligan, supra, 71 N.J. at 381 (internal citations omitted). However, the privilege to withhold the identity of an informer is not absolute. Id. at 383; State v. Roundtree, 118 N.J. Super. 23, 31 (App. Div. 1971). Pursuant to N.J.R.E. 516, the identity of a person who furnishes information regarding a crime to the police will be protected "unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues." N.J.R.E. 516 (emphasis added).

In determining whether or not to order disclosure of an informant's identity, courts must balance the public's interest in protecting the flow of information to law enforcement with the defendant's right to prepare his or her case. Milligan, supra, 71 N.J. at 384; State v. Williams, 364 N.J. Super. 23, 38 (App. Div. 2003). The standard of review applied to the denial of a motion to disclose an informant's identity is whether the trial court abused its discretion after conducting the required balancing test. Milligan, supra, 71 N.J. at 384.

Here, citing to State v. Roundtree, 118 N.J. Super. 23 (App. Div. 1971), defendant argues that the informer's identity was essential to his defense because the informer's role went "beyond a marginal role of providing a tip to the police" since "[t]he investigation would not have begun and the surveillance location would not have arisen without this person's active participation in the alleged events that led to Mr. Clark's arrest."

In Roundtree, the defendant met with a confidential informant, an undercover trooper, and another individual to discuss a drug transaction, which led to the defendant's arrest. Id. at 25-26. We held that the informant's identity should have been disclosed to the defendant at trial because "the informer did far more than merely set up or witness the meeting . . . . The informer was an active participant bringing about the violation . . . and a material witness on the issue of defendant's guilt." Id. at 32.

Similarly, in State v. West, 145 N.J. Super. 226, 228 (App. Div. 1976), certif. denied, 73 N.J. 67 (1977), we held that disclosure was required where an informant brought an undercover police officer to meet the defendant, and stood approximately ten-to-fifteen feet away while the defendant and undercover officer allegedly transacted a drug deal. Id. at 228. We ruled that "certain knowledge of the informer's identity in this case [was] an essential condition to establishing a defense," because defendant was arguing that no drug transaction had taken place, and that the informant had tried to frame him due to a personal feud between them. Id. at 231-32.

In Milligan, supra, a police informer had introduced an undercover state trooper to the defendant. 71 N.J. at 377-78. The informer accompanied the trooper and defendant to a place where a heroin sale was transacted, but did not participate in the sale. Ibid. The Court acknowledged that "a close case has been presented", but concluded "that the informer's limited involvement in the crime, the speculative significance of his testimony and the reasons offered for disclosure do not sufficiently outweigh the State's interest in protecting the free flow of information." Id. at 394. The Court explained that the role played by the informer in Milligan was "far less significant" than that of the informer in Roundtree because

it was the narcotics agent, not the informer, who actually purchased drugs from the defendant. Moreover, there is no evidence that the informer induced defendant to make the sale or in any other way entrapped defendant. Finally, the informer was not even present in the room when the sale was consummated.

[Id. at 390.]

Similarly, in State v. Brown, 170 N.J. 138 (2001), a confidential informant aided the police in two controlled drug purchases from the defendant, but did not actively participate in the search of the home that led to defendant's arrest. Id. at 144. The Court held that the informer's tips to the police did not rise to the level that warranted disclosure of the identity of the confidential informant. Id. at 151. See also State v. Infante, 116 N.J. Super. 252, 253, 258-59 (App. Div. 1971) (holding that disclosure was not warranted where the confidential informant brought a detective to the entrance of a bookmaking operation and made a phone call inside the operation but did not place a bet, because "the participation of the informant did not become part of the res gestae of the crime. Nor did it play any important part in the conviction, in view of the abundance of evidence inculpatory of the defendant").

Here, we find no misapplication of discretion by the trial judge in concluding that disclosure of the informant's identity was not warranted, because the informer played only a "marginal role" in the preliminary stages of this criminal investigation. The informant here was even less involved in the investigation of defendant than the informants in Milligan and Brown, whose identities were also kept confidential. The informant here did not participate in the surveillance, drug transactions, or arrest of defendant. The informant was no more than a "tipster," and all of the State's evidence was independently observed and collected subsequent to receiving the informant's tip.

Defendant also contends that even assuming, arguendo, that the informer's actions did not rise to the level of active participation in the investigation, the informer's identity should still have been disclosed because his or her testimony would have been essential to his defense in that it would have directly related to issues of whether he possessed cocaine on the premises of 1119 Empire Avenue and whether defendant engaged in the distribution of cocaine from this location. However, the jury found defendant guilty of possessing and distributing cocaine even without any of the information provided by the informant being entered into evidence. Therefore, since the State proved its case independent of any evidence provided by the informant, disclosure of the informant's identity would not have helped defendant dispute the charges against him. Moreover, defendant did not have a reasonably plausible entrapment defense, since the informant played no part in the surveillance, drug transactions, or defendant's arrest. Indeed, defendant's arguments that "the informant was not used merely for investigatory or informational purposes" and that "[t]he informant may or may not have been involved in the distribution scheme" are speculative, at best.

III.

Defendant further contends that the trial court committed plain error by failing to suppress evidence obtained by the State as a result of defendant's "unlawful arrest." Defendant's trial counsel did not file a motion to suppress this evidence with the court below. However, defendant argues that in the interests of justice, we should consider his appeal under the plain error standard of review. See R. 2:10-2; State v. Macon, 57 N.J. 325 (1971).

Rule 3:5-7(f) provides that if a timely motion to suppress evidence is not made, a "defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained." This rule has been applied to bar post-conviction relief applications based on the alleged illegality of a search. State v. Martin, 87 N.J. 561, 566-67 (1981); State v. Jenkins, 221 N.J. Super. 286 (App. Div. 1987), certif. denied, 113 N.J. 343 (1988), cert. denied, 488 U.S. 1032, 109 S. Ct., 102 L. Ed. 2d 975 (1989); State v. Jordan, 115 N.J. Super. 73, 76-77 (App. Div.), certif. denied, 59 N.J. 293 (1971). In Jordan, we explained:

Suppression motions are required to be made and determined before trial, otherwise they are deemed waived. R. 3:5-7. Thus, the losing party may move before trial for leave to appeal. R. 2:2-4 and R. 2:5-6. To permit defendant to go beyond the record made on the suppression motion would destroy the purposes and the scheme of the rules. The rules contemplate a full airing of the evidence before trial.

[Jordan, supra, 115 N.J. Super. at 76-77.]

Despite the absolute language of R. 3:5-7(f), it is "clear that trial counsel's failure to move for suppression may nevertheless constitute the basis of a post-conviction ineffective assistance of counsel claim." Pressler, Current N.J. Court Rules, comment 6 on R. 3:5-7 (2006). Furthermore, R. 2:10-2 permits an appellate court to reverse an error that was not brought to the trial court's attention if the appellant can demonstrate error "clearly capable of producing an unjust result." R. 2:10-2. The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336. In State v. McLendon, 331 N.J. Super. 104 (App. Div. 2000), we held that although "[u]sually, judicial economy is best served by resolving these issues pre-trial," we would "entertain a late application to suppress" for good cause shown, and, therefore, remanded the case for a post-trial hearing on the Fourth Amendment issues. Id. at 107, 109. Considering defendant's argument on the merits, it is undisputed that the search of defendant in the present case was warrantless. A warrantless search is prima facie invalid unless the State can establish that the search fell under one of the exceptions to the warrant requirement. State v. Patino, 83 N.J. 1, 7 (1980). Probable cause is required to justify a search. State v. Novembrino, 105 N.J. 95, 106 (1987). Probable cause is defined as a "'well grounded suspicion' that a crime has been or is being committed." State v. Martin, 87 N.J. 561, 568 (1981). It is more than a mere suspicion, but less than proof beyond a reasonable doubt. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280; 69 L. Ed. 543 (1925); State v. Hammer, 346 N.J. Super. 359, 366 (App. Div. 2001). In assessing whether probable cause has been established, a police officer's special training and expertise may be considered. State v. Smith, 155 N.J. 83, 99 (1998). However, this does not lower the quantum of evidence required. Ibid. In a suppression hearing, the State may establish probable cause through evidence that otherwise would be inadmissible before a jury, including hearsay evidence or knowledge of defendant's prior arrests or convictions. See Jordan, supra, 115 N.J. Super. at 76.

The United States Supreme Court first recognized the search incident to a lawful arrest exception to the warrant requirement in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). See State v. Alston, 88 N.J. 211, 232-33 (1981). This exception allows officers to search for and seize "any evidence on the arrestee's person in order to prevent its concealment or destruction." Chimel, supra, 395 U.S. at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694. Thus, the scope of a search incident to arrest is "limited to the person of the arrestee and the area from within which he might gain possession of a weapon or destructible evidence." Alston, supra, 88 N.J. at 235 (internal citations omitted).

In light of the informant's tip and Detective Ramos's observations, there was clearly probable cause to arrest defendant and Koonce when their car was stopped. Although defendant argues that "there is no evidence that the police had a subjective intent to arrest the defendant and Koonce when they were stopped and subjected to a search," Ramos's instruction to the officers to stop the car after observing two drug transactions could reasonably have meant that the officers should stop the car and arrest defendant and Koonce. This interpretation is supported by the fact that the officers searched defendant and Koonce after they had stopped the car, whereas they only patted down the other two occupants who they did not intend to arrest.

In State v. Judge, 274 N.J. Super. 94 (App. Div. 1994), we held that a search was justified incident to an arrest where an officer stopped a vehicle for speeding, detected the odor of burnt marijuana, removed the occupants from the vehicle, and searched the occupants and the car, because defendant and the other occupants were being arrested for violating N.J.S.A. 39:4-49.1 and N.J.S.A. 2C:35-10. Id. at 197-205. Likewise, here, based on Detective Ramos's observations, there was probable cause to arrest defendant and Koonce for violating N.J.S.A. 39:4-49.1, since there was a "well-grounded suspicion" that they possessed illegal narcotics.

The search of defendant was also permissible under the automobile exception to the warrant requirement, which was initially recognized by the United States Supreme Court in Carroll v. U.S., 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). The automobile exception "holds a search warrant unnecessary when the police stop an automobile on the highway and have probable cause to believe that it contains contraband or evidence of a crime." Alston, supra, 88 N.J. at 230-31. "The primary rationale for this exception lies in the exigent circumstances created by the inherent mobility of vehicles that often makes it impracticable to obtain a warrant." Id. at 231. Thus, "[u]nder the New Jersey Constitution, Article I, Paragraph 7, a warrantless search of an automotive requires both probable cause and exigent circumstances." Hammer, supra, 346 N.J. Super. at 366 (citing State v. Cooke, 163 N.J. 657, 664 (2000)).

Here, both probable cause and exigent circumstances existed, justifying the search of defendant under the automobile exception. State v. Paturzzio, 292 N.J. Super. 542 (App. Div. 1996) is instructive. In Paturzzio, a police officer received a tip from an informant not previously proven to be reliable that defendant possessed a large quantity of phencyclidine (PCP) and marijuana, and that she would be leaving a certain residence shortly. Id. at 545. Surveillance was established at the residence in question, and three individuals matching the descriptions provided by the informant soon emerged from the residence and drove away. Id. at 548. The police stopped and searched the car. Id. at 546. We concluded that the search was valid under the automobile exception and as a search incident to lawful arrest because the police "had sufficient facts to corroborate the information provided by the source that illegal drug activity was occurring, and . . . they had probable cause to stop the vehicle." Id. at 548. The Court explained that "[p]robable cause to support the search of an automobile and its occupants can result even when a tip is provided by an informant not previously proven to be reliable when there is sufficient corroboration by police observation." Id. at 549.

Here, the informant's tip was sufficiently corroborated by Detective Ramos's surveillance to provide the officers with a well-grounded suspicion that a drug transaction had been committed and that defendant possessed evidence or contraband connected with the crime in the Oldsmobile. Further, there were exigent circumstances due to "the inherent mobility of vehicles" and the possible destruction of evidence. Alston, supra, 88 N.J. at 231. Thus, in light of the probable cause and exigent circumstances presented in this case, it was not necessary for the police to obtain a warrant before stopping the Oldsmobile and searching the defendant and Koonce. Paturzzio, supra, 292 N.J. Super. at 570-71. As such, the trial court's failure to move sua sponte to suppress the evidence obtained from this search cannot be considered an error "clearly capable of producing an unjust result." R. 2:10-2.

IV. Defendant also asserts that the search of 1119 Empire Avenue was invalid because Waugh's consent to search was not "freely and voluntarily given." We disagree.

Initially, we conclude that defendant has standing to contest the validity of Waugh's consent to search his own residence at 1119 Empire Avenue. Standing in New Jersey is significantly broader than under federal law. See State v. Bruns, 172 N.J. 40, 59 (2002); Alston, supra, 88 N.J. at 225-26. The Court established a "broader" rule of standing under which "a person's ownership of or possessory interest in personal property seized by law enforcement officials is quite sufficient to confer standing to claim that personal Fourth Amendment privacy rights have been violated." Alston, supra, 88 N.J. at 227. Thus, since defendant had a proprietary interest in the cocaine found at 1119 Empire Avenue immediately following his arrest, he has standing to object to the search of Waugh's residence. Id. at 222-23.

Consent "is a well-recognized exception to the search warrant requirement." State v. Suazo, 133 N.J. 315, 319-20 (1993); State v. Farmer, 366 N.J. Super. 307, 313 (App. Div.), certif. denied, 180 N.J. 456 (2004). "A valid consent to search must be clear, knowing, voluntary, unequivocal, and express." State v. Dolly, 255 N.J. Super. 278, 284 (App. Div. 1991) (internal citations omitted). Such consent may be either express or implied from all attendant circumstances. Suazo, supra, 133 N.J. at 322; State v. Arias, 283 N.J. Super. 269, 284 (App. Div. 1992). "Consent may be obtained from the person whose property is to be searched, from a third party who possesses common authority over the property, or from a third party whom the police reasonably believe has authority to consent." State v. Maristany, 133 N.J. 299 (1993) (internal citations omitted). Thus, Waugh clearly had the authority to consent to a search of the residence at 1119 Empire Avenue since he was a tenant of the residence.

However, under New Jersey law, for consent to be valid, the consenting party must understand his or her right to refuse consent. Suazo, supra, 133 N.J. at 323. Indeed, New Jersey requires a higher burden than the Federal Constitution, under which consent to search need only be voluntary. State v. Todd, 355 N.J. Super. 132, 139 (App. Div. 2002). As our Supreme Court explained in State v. Johnson, 68 N.J. 349 (1975),

under Art. I, par. 7 of our State Constitution the validity of a consent to a search, even in a non-custodial situation, must be measured in terms of waiver; i.e., where the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent.

Many persons, perhaps most, would view the request of a police officer to make a search as having the force of law. Unless it is shown by the State that the person involved knew that he had the right to refuse to accede to such a request, his assenting to the search is not meaningful. One cannot be held to have waived a right if he was unaware of its existence.

However, in a non-custodial situation, such as is here presented, the police would not necessarily be required to advise the person of his right to refuse to consent to the search. Our decision is only that in such a situation if the State seeks to rely on consent as the basis for a search, it has the burden of demonstrating knowledge on the part of the person involved that he had a choice in the matter.

[Id. at 553-54.]

In evaluating whether a person had knowledge of his or her rights, a signed consent form may be considered evidence of voluntary consent. State v. Chapman, 332 N.J. Super. 452, 470-71 (App. Div. 2000); State v. Jackson, 268 N.J. Super. 194, 204 (Law Div. 1993); State v. Oberlton, 262 N.J. Super. 204, 210 (Law Div. 1992).

Conversely, it has been held that a signed consent form was not sufficient where the State failed to establish that defendant, who was physically seized and pushed against a wall by police outside his apartment and signed a consent form after police had escorted him back inside the apartment and conducted a search, had knowingly and voluntarily consented to the search. State v. Alexander, 170 N.J. Super. 298, 306-07 (Law. Div. 1979), aff'd, 173 N.J. Super. 260 (App. Div. 1980).

Here, Detective Sampson testified that Waugh consented to his request to search the premises and signed a consent-to-search form. The court permitted Detective Sampson to read the consent form into evidence. It read:

Charles Waugh, having been informed that I have a constitutional right to refuse, allow law enforcement officers to search my property or property over which I exercise control without a search warrant. That I have the right to refuse to consent to such a search. That the law enforcement officers will respect my refusal to consent to search. And anything uncovered by the search could be used in evidence against me or another party. I hereby authorize Det. Shane Sampson [] HIDTA of the Camden County Prosecutor's Office, Camden, New Jersey, to conduct a complete search of 1119 Empire Avenue, Camden, New Jersey and to seize therefrom any materials which in their opinion may be of evidential value to their investigation. This consent to search/ seize is being given to me - to the above-named individuals voluntarily and without threats or promise of any kind.

The form was dated "7/03/02 . . . 10:09 p.m." and was signed by Waugh. According to Detective Sampson, Waugh signed the form in his presence, prior to the commencement of the search.

On cross examination of Waugh by defense counsel, however, Waugh indicated that when they were at 1119 Empire Avenue on the night of July 3, 2002, the police had badgered and threatened him and handcuffed him to a wall. Waugh admitted that he signed the consent form, but claimed that the police had started searching his home before he signed it. However, this claim conflicted with Detective Sampson's testimony, and was not explored more fully since defense counsel chose not to contest Waugh's consent or file a motion to suppress, as previously noted.

In Alexander, supra, the court held that a signed consent form may, in certain circumstances, be some evidence of voluntary consent despite the untimely signing thereof. 170 N.J. Super. at 306-07. Thus, even if defendant had established that the police had begun their search before Waugh gave his consent which was not established and which Detective Sampson denied the trial court's allowance of the fruits of this search into evidence, after hearing no objection from defense counsel, cannot be considered plain error. This is particularly reasonable considering that three hollow-nosed bullets that were also seized at 1119 Empire Avenue were not entered into evidence pursuant to an agreement between the parties which took place in the presence of the judge at the onset of the trial. This indicates that all of the parties accepted the validity of Waugh's consent at the time of trial, contrary to defendant's contention that his counsel's failure to move to suppress amounted to ineffective assistance of counsel and was not a strategic decision.

The waiver form signed by Waugh, which informed him of his right to refuse to consent, satisfied the State's burden of demonstrating that the search was voluntary and that Waugh knew he had a choice whether to consent. The trial court did not commit plain error by allowing the cocaine found at 1119 Empire Avenue to be entered into evidence upon receiving a signed consent form and hearing no objection from defense counsel. In addition, since a full record on the suppression record was not adduced, defendant may raise this issue again in a motion for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460-61 (1992).

V.

At trial, defendant objected to the proffered testimony by Detective Sampson that when he was outside the residence at 1119 Empire Street, he heard a male voice from behind the door state "it's the cops, get rid of it." The trial court conducted an admissibility hearing pursuant to N.J.R.E. 104. Following a voir dire examination of Detective Sampson, the court ruled that the statement was "admissible under Rule 803b(5) as a statement of a co-conspirator in furtherance of the conspiracy."

Defendant contends that the trial judge abused his discretion in admitting this statement because "the State never established who made it or who it was made to." In support of this argument, defendant points out that "while Det. Sampson believed that Charles Waugh made this statement, he did not see the person who made it[;]" that "we have no idea what items are being referred to when the voice said 'get rid of it[;]'" and that "Detective Sampson admitted that at the time this statement was made, [defendant] Clark was in police custody." Further, defendant argues that he "was severely prejudiced by such a statement and therefore his right to a fair trial was compromised."

The evidentiary rulings of a trial court are "entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." Ibid. (internal quotations omitted). Indeed, "[t]raditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998).

"A statement, made other than by the witness while testifying, offered to prove the truth of the content of the statement is hearsay evidence and is inadmissible unless it falls within one of the hearsay exceptions." State v. Savage, 172 N.J. 374, 402 (2002) (quoting State v. Phelps, 96 N.J. 500, 508 (1984)). The exceptions to the hearsay rule "are justified primarily because the circumstances under which the statements are made provide strong indicia of reliability." Ibid.

N.J.R.E. 803(b)(5) provides a hearsay exception for a co-conspirator's statement "made at the time the party and the declarant were participating in a plan to commit a crime," where the statement was "made in furtherance of that plan" and is being utilized against another member of the conspiracy. Savage, supra, 172 N.J. at 402 (citing N.J.R.E. 803(b)(5)). "The rationale for the co-conspirator exception is that 'because conspirators are substantively liable for the acts of their co-conspirators, they are equally responsible for statements by their confederates to further the unlawful plan.'" Ibid. (quoting State v. Harris, 298 N.J. Super. 478, 487 (App. Div.), certif. denied, 151 N.J. 74 (1997)). To qualify for admissibility under N.J.R.E. 803(b)(5):

(1) the statement must have been made in furtherance of the conspiracy; (2) the statement must have been made during the course of the conspiracy; and (3) there must be evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it.

[Ibid. (internal citations omitted).]

Here, the statement was made in furtherance of this conspiracy because the declarant was attempting to induce third parties to further the conspiracy's goals by disposing of incriminating evidence. The statement was made in the course of the conspiracy because the conspiracy was ongoing and the statement was made in an attempt to preclude prosecution. "Mere completion of the criminal act does not necessarily end the conspiracy for purposes of" N.J.R.E. 803(b)(5), nor does the arrest of one conspirator. State v. James, 346 N.J. Super. 441, 458-59 (App. Div.), certif. denied, 174 N.J. 193 (2002); see State v. Phelps, 96 N.J. 500, 508 (2004).

There was independent evidence of the existence of the conspiracy as well. Indeed, based on the evidence presented, including Detective Ramos's observations, and Waugh's admission that he permitted defendant to deal drugs in his home, the jury found defendant guilty beyond a reasonable doubt of being part of a conspiracy to possess drugs with the intent to distribute. Therefore, all of the requirements to admit a co-conspirator's statement have been met. Savage, supra, 172 N.J. at 402.

Furthermore, defendant's contention that the State never established who made the statement or to whom the statement was made is without merit. Detective Sampson identified Waugh as the man speaking from behind the door at 1119 Empire Avenue. And, given the totality of the evidence in this case, there is little doubt that Waugh's warning to "get rid of it" referred to the other people in the house "getting rid of" illegal drugs. Moreover, the statement had not been offered for the truth of the matter asserted.

Therefore, we find no misapplication of discretion by the trial judge in ruling that the statement overheard by Detective Sampson was admissible as a statement by a co-conspirator. In addition, the inherent trustworthiness of Waugh's statement is further solidified by its additional status as an excited utterance admissible pursuant to N.J.R.E. 803(c)(2).

VI. Defendant moved for a judgment of acquittal at the end of the State's presentation of evidence, arguing that the State had failed to establish a prima facie case with respect to the charges against him. The trial judge denied this motion, stating:

The State's testimony includes testimony that puts Mr. Clark in and out of 1119 Empire Avenue on the date in question. Cocaine is found at 1119. There are two observed transactions involving Mr. Clark that according to Det. Ramos appeared to be drug transactions. One of those transactions was with Koonce and, in fact, the bag of cocaine was found on him and he was arrested. $592 in cash was found on Clark when he was arrested.

Waugh says that the agreement that they had, he and Clark had, was that Waugh allowed Clark to use 1119 Empire Avenue to bag cocaine and that Clark gave Waugh cocaine to ingest. Waugh being a cocaine addict.

There's ample evidence here, direct and circumstantial, such that giving the State [the] benefit of all its favorable testimony and all the favorable inferences it could reasonably be drawn therefrom a reasonable jury could find this defendant guilty of all the charges beyond a reasonable doubt, so the motion is denied.

Rule 3:18-1 provides that at the close of the State's case, or after all of the parties' cases have been closed, "the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses . . . if the evidence is insufficient to warrant a conviction." R. 3:18-1. When faced with a motion for a judgment of acquittal, the trial judge must determine:

whether viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Kittrell, 145 N.J. 112, 130 (1996) (quoting State v. Reyes, 50 N.J. 454, 458-59 (1967)).]

Defendant's contention that "[n]o reasonable jury" should have convicted him based upon the evidence offered by the State because there was no showing that defendant sold cocaine to the unknown African-American female or to Raymond Koonce, and there was no showing of a conspiracy between defendant and Charles Waugh, is without merit. The State presented credible evidence that on the evening of July 3, 2002, Detective Ramos observed defendant exit 1119 Empire Avenue and conduct two hand-to-hand exchanges of suspected drugs for money. Officers subsequently arrested defendant and one of these suspected buyers, Koonce. Defendant possessed $592 cash and Koonce possessed a bag of cocaine. Shortly thereafter, a detective knocked on the door to 1119 Empire Avenue, announced his presence, and heard Waugh say "it's the cops, get rid of it." When the detective entered the premises, he received consent to search and found several bags of cocaine next to Waugh that were identical to the bag found on Koonce. Waugh testified that he and the defendant were part of a drug distribution enterprise whereby defendant would utilize Waugh's residence for drug dealing and Waugh would receive drugs in exchange.

Thus, the State presented ample direct and circumstantial evidence to find defendant guilty of the crimes charged beyond a reasonable doubt, especially when giving the State the benefit of all favorable testimony and inferences to be drawn therefrom. Kittrell, supra, 145 N.J. at 130.

VII.

Defendant further argues that the jury's verdict should be set aside because it was against the weight of the evidence and constituted plain error an argument that defendant did not raise to the trial court. R. 2:10-1 provides that

the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.

Pursuant to R. 2:10-1, an appellate court will normally not consider an argument that a jury's verdict was against the weight of the evidence unless the appellant moved for a new trial on that ground. Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 (App. Div. 1998); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974)). Nevertheless, an appellate court may choose to proceed on the merits despite the absence of a new trial motion if it is in the interest of justice, particularly in a criminal appeal. State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div. 1992), certif. denied, 134 N.J. 476 (1993); see R. 1:1-2. The State argues that defendant forfeited his right to claim that the verdict was against the weight of the evidence when he failed to move the trial court for a new trial on this basis. However, defendant contends that the interests of justice require this Court to evaluate the merits of his claim despite his failure to move the trial court for a new trial. Because this is a criminal appeal, we elect to evaluate defendant's substantive argument despite the procedural deficiency. Fiore, supra, 311 N.J. Super. at 362-63.

In so doing, we must "decide whether 'it clearly appears that there was a miscarriage of justice under the law.'" Id. (quoting R. 2:10-1). "[T]he standard of review is whether the error was of such a nature as to have been clearly capable of producing an unjust result." State v. Spruell, 121 N.J. 32, 42 (1990) (citing R. 2:10-1). "Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." State v. Smith, supra, 262 N.J. Super. at 511-12 (citing State v. Haines, 20 N.J. 438, 446-47 (1956)).

Applying this standard, we cannot conclude that the jury's verdict constituted "a miscarriage of justice under the law." Smith, supra, 262 N.J. Super. at 511-12. The State presented ample evidence to prove defendant guilty beyond a reasonable doubt. The sole defense witness offered to rebut the State's evidence was Raymond Koonce, who testified that he did not buy cocaine from the defendant on July 3, 2002, and that the cocaine found in his possession was due to the officers' sticking the bag to his stomach. However, the jury had to weigh Koonce's testimony against Detective Ramos' testimony that he witnessed what appeared to be a drug exchange between defendant and Koonce, Detective Sampson's testimony that he witnessed the search and the cocaine was found not on Koonce's stomach, but in his right front pocket, Koonce's own admission to the officers on the scene that the cocaine belonged to him, and Koonce's subsequent guilty plea to possession of the cocaine. The verdict indicates that the jury credited the testimony of the State's witnesses, Detectives Ramos and Sampson and Waugh, over that of Koonce.

We may not overturn a verdict based on a jury's assessment of credibility unless it finds "clear evidence on the face of the record that the jury was mistaken or prejudiced." Smith, supra, 262 N.J. Super. at 511-12. Defendant has presented no evidence that the jury was prejudiced, or that they made errors "of such a nature as to have been clearly capable of producing an unjust result." State v. Spruell, 121 N.J. 32, 42 (1990). The evidence adduced by the State was more than sufficient to authorize the jury to find defendant guilty beyond a reasonable doubt. State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973).

VIII.

Defendant further contends that the failure of his trial counsel to file a motion to suppress evidence acquired through the "illegal" searches of defendant, Raymond Koonce, and 1119 Empire Avenue, or a motion for a new trial on the basis that the jury verdict was against the weight of the evidence, resulted in undue prejudice to defendant, thereby depriving him of his constitutional right to adequate assistance of counsel.

It is axiomatic that a "criminal defendant is entitled to the assistance of reasonably competent counsel." State v. Fritz, 105 N.J. 42, 58 (1987). Therefore, "if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right [to counsel] will have been violated." Ibid. As the United States Supreme Court explained in Strickland v. Washington:

The benchmark for judging any claim for ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result.

[ 446 U.S. 688, 691-96, 104 S. Ct. 2052, 2066-69, 80 L. Ed. 2d 674, 695-98 (1984).]

To state an ineffective assistance of counsel claim under the Sixth Amendment of the United States Constitution or Article I, paragraph 10, of the New Jersey Constitution, "a defendant must first establish that counsel's representation fell below an objective standard of reasonableness." State v. Timmendequas, 161 N.J. 515, 598 (1999) (internal citations omitted). "Second, he must show a reasonable probability that the result of the proceeding would have been different but for counsel's deficiencies." Ibid. (citing Strickland, supra, 466 U.S. at 691-96, 104 S. Ct. at 2066-69, 80 L. Ed. 2d at 695-98). "The reasonableness of counsel's performance should be evaluated in light of all relevant circumstances at the time the alleged error occurred." Id. at 599 (citing Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2067-68, 80 L. Ed. 2d at 694-95). "The inquiry must include the possibility that counsel's decisions were based on sound trial strategy rather than incompetence or deficiency." Ibid. (citing Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695-96a). "Defendant bears the burden of proving that counsel's performance was unreasonable under the prevailing professional norms." Ibid. (citing Strickland, supra, 466 U.S. at 687-91, 104 S. Ct. at 2064-66, 80 L. Ed. 2d at 693-95).

Regarding the first prong, to determine whether counsel's performance fell below an objective standard of reasonableness, we must start by presuming that defense counsel acted within the wide range of reasonable professionalism. Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). Defense counsel's reasons for his strategy are not disclosed in the record. However, the record supports the conclusion that trial counsel made the professional judgment not to file a frivolous motion. See R.P.C. 3.1. In fact, defendant's attorney did successfully keep out of evidence the informant's statements that led to the surveillance of 1119 Empire Avenue, as well as three 38 hollow point bullets which Detective Sampson found inside 1119 Empire Ave. Furthermore, after defendant complained about his attorney at the sentencing hearing, the trial court noted for the record that "Mr. Clark did receive a fair trial. All of his rights were protected and he was represented by outstanding counsel. Not just adequate counsel, but outstanding counsel."

Moreover, under the second prong, defendant cannot demonstrate a reasonable probability that the result of the proceeding would have been different but for counsel's deficiencies. Timmendequas, supra, 161 N.J. at 598. Defendant argues that "since the police conducted an illegal search of Clark and Koonce and of the house located at 1119 Empire Ave., in all likelihood the defendant would have prevailed on a motion to suppress." Further, regarding his trial attorney's failure to move for a new trial, defendant claims that "no reasonable jury should have convicted [him] based on the evidence presented. Trial counsel's failure to perform at the minimum level of competence deprived him of a fair trial." However, defendant would not have prevailed on any of these motions. Therefore, defendant has failed to satisfy the second prong of this analysis.

IX.

Lastly, defendant argues that the trial judge abused his discretion by (a) imposing an extended term of imprisonment, "as he failed to determine that there was a need to protect the public"; (b) imposing a term of imprisonment greater than the presumptive term, "as this determination violated defendant's constitutional rights to a trial by jury and due process of law"; and (c) by imposing a consecutive sentence with respect to defendant's violation of probation on indictment number 1147-04-01. Conversely, the State contends that defendant's overall sentences are well deserved, and comport with the State's sentencing principles and Blakely v. United States, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

The New Jersey Code of Criminal Justice requires a sentencing court to "state on the record" how he or she arrived at a particular sentence. State v. Natale (Natale II), 184 N.J. 458, 488 (2005) (citing N.J.S.A. 2C:43-2(e); R. 3:21-4(g)). "The touchstone is that the sentence must be a reasonable one in light of all the relevant factors considered by the court." Ibid. As such, trial judges are required to "identify the aggravating and mitigating factors and balance them to arrive at a fair sentence." Ibid.

On the review of a sentencing decision by the trial court, this Court will determine,

first, whether the correct sentencing guidelines . . . have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

[State v. Roth, 95 N.J. 334, 365-66 (1984); see also State v. Carey, 168 N.J. 413, 430 (2001).]

It is imperative that an appellate court avoid the substitution of its own judgment for the trial court's judgment. Roth, supra, 95 N.J. at 365. Furthermore, "an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by sufficient evidence in the record." Carey, supra, 168 N.J. at 426-27 (internal citations omitted). Indeed:

An appellate court may modify a sentence only if the sentencing court was "clearly mistaken." That standard is satisfied "if the sentencing guidelines were not followed or applied" or "if the aggravating and mitigating factors found by the sentencing court were not based on sufficient evidence in the record." "Consideration of an inappropriate aggravating factor violates the guidelines and thus is grounds for vacating sentence." Although appellate courts possess original jurisdiction over sentencing, the exercise of that jurisdiction "should not occur regularly or routinely; in the face of a deficient sentence, a remand to the trial court for resentencing is strongly to be preferred."

[State v. Kromphold, 162 N.J. 345, 355 (2000) (internal citations omitted).]

Here, defendant's sentencing hearing was conducted on January 9, 2004. First, the State moved to sentence defendant to an extended term as a persistent offender. The trial judge reviewed defendant's previous convictions, and acknowledged that "both of these convictions occurred within ten years and after Mr. Clark turned 18 so he is - he does qualify as a persistent offender under the statute. And he is eligible for an extended term." Prior to sentencing defendant under indictment number 340-01-03, the judge stated:

The defendant's prior history includes juvenile delinquency adjudication for two separate CDS related offenses in 1994. Then as an adult he has prior convictions within the last ten years for possession of CDS with intent to distribute within a thousand feet of school property, that in 1997, and for possession of CDS that in 2001.

The Aggravating Factors are Three, Six, and Nine. Factor Three, the risk that he'll commit another crime, Factor Six, the extent of his prior criminal record and the seriousness of the offenses of which he's been convicted, and Factor Nine, the need to deter him and others from violating the law as well as Aggravating Factor 11. There are no Mitigating Factors, and the Aggravating Factors dominate.

The school zone conviction which is Count Five not only requires a term of imprisonment but a mandatory minimum term between one third and one half of the sentence imposed or three years, whichever's greater, during which the defendant shall be ineligible for parole. Because of his criminal record and the nature of the present offenses a period of incarceration in excess of the presumptive term is mandated. Also, because he is what's referred to as a persistent offender, he's eligible for an extended term and that extended term is arranged under 2C:43-7. It's arranged to be fixed by the Court between five and ten years.

Therefore, on count five, possession with intent to distribute cocaine within 1000 feet of school property, the judge sentenced defendant to a ten-year term of imprisonment with a three-year period of parole ineligibility. On count two, distribution of cocaine, and count four, possession of cocaine with intent to distribute, defendant received a flat ten-year term of imprisonment, on each, concurrent with the sentence imposed on count five. Count one was merged with count three, and counts one and three were merged with count four. Count six, conspiracy to commit the crime of possession with intent to distribute, was dismissed.

Defendant also pleaded guilty to violating his probation with respect to his 2001 guilty plea for possession of cocaine, on Indictment Number 1147-04-01. On that conviction, the judge terminated defendant's probation, and sentenced him to a three-year term, to run consecutively to the other sentences imposed, stating:

I find that as a matter of law that you have violated your probation and that is because you failed to remain arrest free and specifically you were arrested and on October 30, 2003 you were convicted for possession of CDS, possession with intent to distribute, and possession of CDS with intent to distribute within a thousand feet of school property under Indictment 340-01-03. And, therefore, you have violated your probation.

* * * *

The aggravating factors which remain in effect are three, six, and nine. Mitigating factor ten no longer applies. The aggravating factors dominate.

Defendant's aggregate sentence was thirteen years imprisonment with a three year parole ineligibility period.

Pursuant to N.J.S.A. 2C:43-7, a defendant may be sentenced to an extended term of imprisonment if he or she is proven to be a "persistent offender," meaning a defendant who is:

convicted of a crime of the first, second, or third degree . . . who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes . . . is within ten years of the date of the crime for which defendant is being sentence.

[N.J.S.A. 2C:44-3(a).]

The ordinary term of imprisonment for a third degree crime is between three and five years. N.J.S.A. 2C:43-6. However, the extended term for a third-degree crime is between five and ten years. N.J.S.A. 2C:43-7. The procedure for determining whether to impose a discretionary extended term sentence is as follows:

First, the sentencing court must determine whether the minimum statutory predicates for subjecting the defendant to an extended term have been met. Second, the court must determine whether to impose an extended sentence. Third, it must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence. Finally, it must determine whether to impose a period of parole ineligibility.

[Id. at 89.]

"The standard for determining whether to impose an extended sentence upon an eligible defendant is whether it is necessary for the protection of the public from future offenses by defendant through deterrence." State v. Young, 379 N.J. Super. 498, (App. Div. 2005) (emphasis added; internal citations omitted). "The choice to impose the extended term sentence is within the discretion of the court." State v. Dunbar, 108 N.J. 80, 87 (1998).

Here, defendant conceded at sentencing that he had two prior convictions within the last ten years. On appeal, he does not dispute that he qualified for extended term treatment as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). Nevertheless, defendant contends that the trial judge abused his discretion in imposing this sentence because the judge "made no findings on the record to support this decision." Particularly, defendant maintains that the court never determined that he posed a threat to the public and that there was a need to protect the public against this threat.

Although the trial judge found defendant to be a persistent offender under the statutory definition in N.J.S.A. 2C:44-3(a), he did not make a specific finding that defendant posed a threat to the public. Nor did the judge explicitly make such a finding in his written explanation of defendant's sentence, which provided:

The State applies for an extended term of imprisonment, because defendant is a persistent offender under N.J.S.A. 2C:44-3a. He was over 21 years of age when the crimes in this case were committed, and has previously been convicted on two separate occasions of two crimes, committed at different times, when he was at least 18 years old, and the latest of those crimes was committed within 10 years of the date of the crimes for which defendant is being sentenced in this case.

* * * *

Since the aggravating factors dominate (there are no mitigating factors), and defendant clearly has propensities toward further persistent criminal conduct (defendant violated probation under I-1147-04-01), the presumptive term under [N.J.S.A.] 2C:44-1f(1), 7 years, should be adjusted upwards to 10 years.

However, although the trial judge did not use the specific words of art, he did state in his written explanation that defendant has propensities toward further persistent criminal conduct, and it is clear that the judge essentially concluded that an extended term was necessary to protect the public. See State v. Candelaria, 311 N.J. Super. 437, 452 (App. Div.), certif. denied, 155 N.J. 587 (1998). Therefore, we find no misapplication of discretion in imposition of an extended-term sentence. We also note that it appears defendant was eligible for a "mandatory" extended term under N.J.S.A. 2C:43-6f.

In imposing an extended sentence under N.J.S.A. 2C:43-7, it was within the trial judge's discretion to impose a period of incarceration between five and ten years, with a presumptive term of seven years pursuant to N.J.S.A. 2C:44-1(f). The judge found four aggravating factors, (factors 3, 6, 9, and 11), and no mitigating factors to be present. Since the aggravating factors "dominate[d]", the court sentenced defendant to ten years, which was the maximum term of imprisonment allowable under the extended term. Defendant argues that this sentence is unconstitutional in light of the United States Supreme Court's decision in Blakely, supra, since he was sentenced to three more years than the statutorily-mandated presumptive sentence of seven years. In Natale II, supra, 184 N.J. at 458, the Court modified New Jersey's sentencing scheme and eliminated presumptive terms.

After Natale II, a trial judge is still "authorized to sentence the defendant within a range consistent with . . . the defendant's prior convictions." Natale II, supra, 184 N.J. at 481 (citing Blakely, supra, 542 U.S. at 301, 124 S. Ct. at 2536, 2541, 159 L. Ed. 2d at 412; Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S. Ct. 1219, 1230, 140 L. Ed. 2d 350, 368 (1998) ("Recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence")). In Natale II, supra, the Court held "that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." 184 N.J. at 466. In State v. Young, 379 N.J. Super. 498, 510 (2005), we held:

We adhere to our prior holdings that the "prior conviction" exception permits imposition of an extended term under the persistent offender statute. . . . N.J.S.A. 2C:44-3a is clearly a recidivism statute and the judicial fact-finding thereunder is based on the "prior conviction" exception.

Hence, sentencing defendant to the statutory maximum of the extended term based on defendant's prior convictions was constitutional as long as there was a sufficient basis for his decision on the record.

In Natale II, supra, in order to bring New Jersey "into compliance with the Sixth Amendment in a way that the Legislature would have intended," the Court "eliminate[d] presumptive terms from the sentencing process," holding that judges may now "sentence defendants within the statutory range after identifying and weighing the applicable mitigating and aggravating factors" without reference to presumptive terms. 184 N.J. at 466. In Blakely, supra, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 542 U.S. at 301, 124 S. Ct. at 2536, 159 L. Ed. 2d at 412. As such, a sentencing judge must still justify his or her decision to depart from a mid-range sentence, and this justification must be based only on factors that have been proven beyond a reasonable doubt. See Young, supra, 379 N.J. Super. at 514-515.

Aggravating factors 3, 6, and 9 are considered "offender-based factors," based on a record of criminal convictions. Abdullah, supra, 372 N.J. Super. at 281-82. As we have noted, the Supreme Court has suggested that "aggravating factors (3), (6) and (9) related to [a] defendant's prior convictions" might be "the basis for increasing defendant's sentence above" what had been the presumptive term. Young, supra, 379 N.J. Super. at 514 (internal citations omitted). Here, however, the trial judge did not specifically state that defendant's statutory maximum sentence was exclusively based on defendant's prior convictions. Thus, the trial court's findings were not sufficiently clear to warrant imposition of the statutory maximum sentence.

The sentencing record does not contain an analysis of the aggravating and mitigating factors. Trial courts are required to state on the record the reasons for imposing the sentence and the factual basis supporting their findings of the particular aggravating or mitigating factors, in order to provide an intelligible record for review. N.J.S.A. 2C:43-2(e); R. 3:21-4(e). In addition, courts must describe the balancing process that led to the sentencing. State v. Martelli, 201 N.J. Super. 378, 385 (App. Div. 1985).

Here, the trial judge enumerated aggravating factors 3, 6, 9, and 11 but did not provide insight into why he was finding these factors and if they were based on factors other than defendant's prior convictions that had not been proven beyond a reasonable doubt or admitted by defendant.

Therefore, we are compelled to remand the matter to the Law Division for a new sentencing hearing in which "the sentencing judge shall follow the dictates of Natale II and Abdullah in fixing the specific term of the extended sentence." Young, supra, 379 N.J. Super. at 515. Although not raised by defendant, we note that if the judge decides to re-impose an extended term under N.J.S.A. 2C:44-3a, he must also consider the ability to impose multiple extended terms. See N.J.S.A. 2C:44-5a(2).

Finally, defendant argues that with respect to his probation violation, the trial judge should have imposed a term of imprisonment concurrent with the term of imprisonment on indictment number 0340-01 03, since a consecutive sentence was not warranted under the sentencing criteria and the judge did not state any reasons for imposition of this consecutive sentence.

Sentences for probation violations triggered by a defendant's commission of crimes while released on probation are presumed to be consecutive, subject to judicial discretion. N.J.S.A. 2C:44-5f(3); State v. Sutton, 132 N.J. 471, 482-85 (1993). In Abdullah, supra, the Court held that "the powers given to a judge by the Code to sentence a defendant to . . . consecutive sentences for multiple convictions do not run counter to the Sixth Amendment." 184 N.J. at 499. However, because the trial court did not articulate the reasons for imposing consecutive sentences in that case, the Court remanded for the trial court to put its reasons on the record. Id. 184 at 514-15.

Abdullah instructs that the sentencing court should articulate the reasons for its decisions with specific reference to the factors set forth in State v. Yarbough, 100 N.J. 627 (1985). Id. at 515. According to these guidelines:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.

[Yarbough, supra, 100 N.J. at 643-44.]

Here, defendant, while on probation for a third-degree crime, was convicted for further drug distribution crimes. Although it was within the trial judge's discretion to impose a consecutive sentence, the judge did not specifically enunciate the standards he utilized for imposing this sentence. Therefore, we remand this matter for resentencing wherein the trial judge can state for the record his reasons for imposing a consecutive term. See Abdullah, supra, 184 N.J. at 514-15; Spivey, supra, 179 N.J. at 245.

X.

In summary, we affirm defendant's convictions, affirm the court's grant of the State's motion for imposition of an extended term, but vacate the sentences imposed, and remand the case for resentencing to allow the trial judge to elucidate the reasons for defendant's sentence, and to conform the sentencing hearing to the redefined Constitutional and statutory standards discussed herein.

 
Affirmed and remanded for resentencing. We do not retain jurisdiction.

(continued)

(continued)

62

A-3213-03T4

January 30, 2006