STATE OF NEW JERSEY v. DONALD E. BOYD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5554-04T45554-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD E. BOYD,

Defendant-Appellant.

____________________________

 

Submitted March 21, 2006 - Decided April 27, 2006

Before Judges Lefelt and Seltzer.

On appeal from a Judgment of Conviction

of the Superior Court of New Jersey, Law

Division, Criminal Part, Bergen County,

01-12-3098.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael

Confusione, Designated Counsel, of

counsel and on the brief).

John L. Molinelli, Bergen County

Prosecutor, attorney for respondent

(Catherine A. Foddai, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction on a charge of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), and the sentence imposed on that conviction. We affirm the conviction but remand for the imposition of a new sentence.

The record reveals the following facts. On July 26, 2001, Officer Robert Challener was patrolling the George Washington Bridge when he noticed a car operated by defendant westbound on the upper level of the bridge. Challener determined, by reference to his own speedometer, that defendant's car was exceeding the speed limit by approximately twenty miles per hour.

When defendant's car reached the New Jersey side of the bridge, the officer activated his lights and defendant pulled to the side of the road. As Challener approached the stopped vehicle, he noticed that defendant was nervous and agitated. When Challener asked defendant for his driver's license, registration and insurance information, he saw that defendant was sweating, spoke very rapidly, and had inflamed nostrils. Based on his experience, the officer concluded that defendant was under the influence of narcotics. Defendant was able to produce a registration and an insurance card but was unable to produce a driver's license. A field inquiry confirmed that defendant's license had been suspended.

Defendant was arrested and, after a cursory search for weapons, handcuffed and transported to the police station several blocks away. Before placing defendant in a cell, the officer made a more detailed search that required, among other things, removing defendant's shoes. As a result of the search, a silver packet, ultimately determined to contain cocaine, was discovered in defendant's shoe. Defendant admitted to being a drug user who had "fallen off the wagon."

Defendant moved to suppress the evidence of the drugs found in his shoe. A hearing on that motion was scheduled for February 15, 2005, immediately before a jury was to be selected. Before the hearing began, defendant requested an adjournment, asserting that he had been involved in an altercation in jail the night before, as a result of which he had sustained "severe abrasions" and a "nearly closed" right eye. He also claimed that he had not received his blood pressure medication and had not slept or eaten in thirty hours. The judge declined to adjourn the matter, noting that his observations led him to conclude that the defendant was mentally astute and fully aware of the proceedings. Defense counsel did not press the matter further.

After the presentation of evidence at the suppression hearing, the judge found the facts to be as we have recited them and denied the motion to suppress. The proceedings were adjourned to the next day at which time a jury was to be selected. When he appeared for jury selection, defendant, who, we infer, had been negotiating with the prosecutor, announced that he would like to plead guilty in return for the State's agreement not to seek an extended term. The judge refused to accept that arrangement since the "plea cut-off" date had passed. See R. 3:9-3(g).

Defendant then agreed to waive his right to a jury trial and requested, jointly with the State, that the judge decide the matter based on the testimony received during the suppression hearing. Counsel elicited from defendant his understanding of, and his willingness to follow, this procedure. Based on that testimony, the judge found defendant guilty and sentenced him to a custodial term of fifty-four months with a twenty-month parole ineligibility period. On appeal, defendant makes the following five arguments:

POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.

POINT II DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL (Not Raised Below).

POINT III THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS BY PERMITTING SUPPRESSION HEARING TESTIMONY TO BE USED AS SUBSTANTIVE EVIDENCE OF DEFENDANT'S GUILT AND BY EFFECTIVELY ACCEPTING A GUILTY PLEA TO THE CHARGE AT ISSUE WITHOUT ENSURING THAT

IT WAS KNOWING, VOLUNTARY, AND INTELLIGENT (Not Raised Below).

POINT IV THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST TO ADJOURN THE MATTER IN LIGHT OF DEFENDANT'S WOUNDS AND CONDITION AND THEIR EFFECT ON HIS ABILITY TO ASSIST HIS COUNSEL.

POINT V THE SENTENCE IMPOSED BY THE TRIAL COURT IS IMPROPER AND SHOULD BE REMANDED TO THE TRIAL COURT PURSUANT TO STATE v. NATALE.

We are satisfied that Points I through IV lack sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following brief comments.

Although not all violations of a motor vehicle statute require anything other than a summons, the arrest of a person driving while on the suspended list or under circumstances suggesting a danger to the driver or others is clearly proper. See State v. Pierce, 136 N.J. 184, 189-95 (1994). The arrest of defendant who exhibited signs of drug use while driving on the revoked list was more than justified.

The search of defendant at the scene of his arrest did not preclude a further search at the police station. The interests implicated by that later search were more expansive than those implicated by the initial search and included the interest of ensuring that defendant had no contraband. Illinois v. Lafayette, 462 U.S. 640, 645, 103 S. Ct., 2605, 2609, 77 L. Ed. 2d 65, 70-71 (1983). The arrest and the ensuing search were lawful and the motion to suppress was properly denied.

Defendant's claim of ineffective assistance of counsel is premised on the belief that allowing the guilt of defendant to be determined on the evidence adduced at the suppression hearing was constitutionally defective representation. To prevail on this claim defendant was required to show both that counsel's performance was objectively unreasonable and that the deficient performance materially contributed to the conviction. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).

Neither showing was made here. Defendant's guilt was overwhelming and the tactical decision to accept a bench trial after which, apparently, the State had informally agreed not to seek an extended term, was hardly deficient. The decisions of counsel are not to be second-guessed and are insulated to the extent they represent reasonable tactical choices. State v. Fisher, 156 N.J. 494, 500 (1998). Moreover, although the procedure utilized in trying the case on the suppression evidence is unusual, the same result was more than likely to have been reached after a jury trial. Defendant does not suggest that a jury would have reached a different result.

We also reject defendant's claim that the procedure used was substantively equivalent to a guilty plea without the necessary finding that it was entered voluntarily and with an understanding of the nature of the charge and the consequences of the plea. See R. 3:9-2. This proceeding was a bench trial. It was no more the equivalent of a plea than is any trial at which the defendant produces no evidence. Finally, the judge's refusal to continue the matter was well within his discretion. We will not disturb that decision where the judge made independent findings, based on his observations, that defendant was not laboring under disabilities so great as to affect his ability to fully participate in the hearing.

Although we find no defect in the conviction, we are satisfied that defendant's sentence must be reversed and the matter remanded for a new sentence. Defendant was convicted of a third-degree crime and sentenced to a fifty-four month custodial term with a twenty-month parole ineligibility. The sentence was to run consecutively to a custodial sentence defendant was then serving. At the time of sentencing, the New Jersey Penal Code provided for the imposition of sentence on a third-degree crime of a term from between three years and five years, N.J.S.A. 2C:43-6(a)(3), with a presumptive term of four years N.J.S.A. 2C:44-1(f)(d).

The sentence imposed here exceeded the presumptive term. In imposing the sentences, the judge found three of the aggravating factors described in N.J.S.A. 2C:44-1(a): "(3) The risk that defendant would commit another offense; . . . (6) The extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; . . . [and] (9) The need for deterring defendant and others from violating the law[.]"

As the result of constitutional challenges to the sentencing provisions of the Code, the Supreme Court eliminated presumptive terms and required re-sentencing of any defendant who had received a term of imprisonment that (1) exceeded the presumptive term and (2) was based on aggravating factors other than defendant's prior criminal record. State v. Natale, 184 N.J. 458 (2005). Since the trial court here imposed a sentence above the presumptive term and relied on factors other than defendant's prior criminal record, we are constrained by the language of Natale to remand for re-sentencing.

The State argues that since the sentences were based upon factors (3), (6), and (9), a remand is not necessary. We disagree. The language of State v. Abdullah, 184 N.J. 497, n.2 (2005), upon which the State relies, does not permit the use of factors (3), (6) and (9) to increase a sentence above the presumptive sentence in all cases. It only suggests that such use might be permissible if "the trial court [finds] that aggravating factors (3), (6) and (9) related to defendant's prior convictions as the basis for increasing defendant's sentence above the presumptive[.]". Id.

The judge made no such findings with respect to factor (9), noting only that "[A]ggravating factor nine applies . . . ." Because the judge did not relate factor (9) specifically to defendant's prior convictions, his comments are not sufficient to avoid a remand, even if we were to conclude from the Abdullah footnote that the use of factors (3), (6) and (9) are constitutionally permissible.

The convictions are affirmed and the matter is remanded for re-sentencing.

 

Defendant does not suggest that the imposition of a consecutive sentence was improper.

(continued)

(continued)

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A-5554-04T4

April 27, 2006