STATE OF NEW JERSEY v. JANET MILLS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5700-04T45700-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JANET L. MILLS,

Defendant-Appellant.

______________________________________________

 

Submitted June 7, 2006 - Decided June 30, 2006

Before Judges Weissbard and Sapp-Peterson.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County, Ind. No. 04-03-0768.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Philip Lago, Designated Counsel,

of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for

respondent (Jeanne Screen, Deputy Attorney General,

of counsel and on the brief).

PER CURIAM

Defendant Janet Mills appeals her conviction following a jury trial on a single count indictment charging possession of a controlled dangerous substance, cocaine. N.J.S.A. 2C:35-10a(1). On May 13, 2005, defendant was sentenced to time served (fifteen days), and two years probation with conditions related to substance abuse. Appropriate penalties and assessments were imposed as well as a six-month loss of driving privileges.

On appeal defendant presents three arguments for our consideration:

POINT I

THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE COCAINE SEIZED FROM DEFENDANT.

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.

POINT III

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL. (Not presented below)

We find defendant's second point to be without sufficient merit to warrant discussion. R. 2:11-3(e)(2). Judged by the appropriate standard, defendant's motion pursuant to R. 3:18-1 was properly denied. See State v. Reyes, 50 N.J. 454, 458-59 (1967).

Defendant contends that her motion to suppress the evidence which led to her indictment and conviction was improperly denied. After hearing testimony from Detective Michael Bonanno of the Neptune Township Police Department and defendant, Judge DeStefano made the following findings:

First, as, far as credibility, I found Det. Bonanno to be credible and straight forward. Ms. Mills, her testimony was somewhat rambling and somewhat marginally coherent at points but I understood the points that she was trying to make and I'm going to make the following findings of fact.

Ms. Mills was indicted by the Monmouth County Grand Jury on Indictment 04-03-768 for possession of CDS pursuant to 2C:35-10a(1). The defendant has filed a motion to suppress on the basis that the police officer's question to the defendant about contraband amounted to a consent search without reasonable suspicion and the evidence should therefore be excluded. The Court denies the motion.

This case arises from a motor vehicle stop which occurred on November 6th, 2003 in Neptune Township. Det. Michael Bonanno of that department was on patrol when he observed a green Ford Taurus nearly strike another vehicle and then speed down the street through a red light. The driver was charged with careless driving and eventually driving while suspended.

The Taurus driven by Janet Mills eventually stopped at 115 Atkins Avenue. When the police car approached, the defendant backed the car further up the driveway and into the backyard. The officer then exited his patrol car, approached the vehicle and asked the defendant for her credentials. The driver was unable to produce a driver's license. At the same time the officer detected an odor of alcoholic beverage and the defendant stated that she had been drinking that night.

. . . .

THE COURT: . . . . When the officer asked Ms. Mills if she had contraband on her, the defendant began to cry, said that she did not want to go to jail or lose her job. She then said that she had "something" and when asked, admitted that "something" was a rock of crack in her pocket. The defendant removed and handed the crack to the officer and was placed under arrest.

The first question the Court must consider is whether the stop of the defendant's vehicle was lawful. I believe it was in light of the officer's observations before the stop. It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and a reasonable suspicion that the driver has committed a motor vehicle offense -- State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979)); State v. Murphy, 238 N.J. Super. 546, 554 (App. Div. 1990).

To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor vehicle violation occurred -- State v. Williamson, 138 N.J. 302 (1994).

Here the evidence indicates that the defendant ran a red light and almost caused an accident. These are both motor vehicle offenses under N.J.S.A. 39:4-120.9 and 39:4-97. This provided sufficient reasonable suspicion to justify the car stop.

The defense then argues that by asking the defendant if she had contraband or in this question, if she had something, the officer engaged in the equivalent of a consent search. Once again I disagree. State v. Hickman, 335 N.J. Super. 623 (App. Div. 2000) is directly on point. In Hickman a defendant was stopped because another officer advised that he was driving, was a driver, that he was driving without a license. The defendant was stopped because he advised another officer that he was driving without a license. The defendant, when asked if he had contraband, said that he had "something in his shoe" and then produced a rock of crack cocaine.

On these very similar facts the Court decided that there was no constitutional violation. The Court held that "if a motor vehicle is subject to a valid police stop, the police may question the occupants even on the subject unrelated to the purpose of the stop so long as such questioning does not extend the duration of the stop."

Here, as in Hickman, defendant had only been stopped for a few moments before the officer asked about contraband or "something." Given the smell of alcohol and the defendant's inability to produce a driver's license, it is likely that the detention incident to the stop would have continued for an additional period of time, certainly long enough to have asked this question.

Even if, as the defendant argues in [her] brief, the officer was required to have a reasonable suspicion of criminal activity to inquire about contraband, and I'm not convinced that there is, that that is the requirement, in fact I don't think it is, he certainly had a basis for such suspicion. The officer had already determined that the defendant had no driver's license in her possession, had an odor of alcohol coming, emanating from her breath and the defendant acted strangely by backing the car into the backyard when the officer approached. This gives rise to a reasonable basis to conduct further questioning.

As such, the questioning of the defendant was constitutionally permissible and the motion to suppress evidence seized without a warrant is denied.

We defer to the judge's factual findings. State v. Locurto, 157 N.J. 463, 474 (1999). Our scope of review of such fact finding is "extremely narrow." State v. De La Paz, 337 N.J. Super. 181, 190 (App. Div.), certif. denied, 168 N.J. 295 (2001). Under that standard, we see no basis to disturb the judge's findings. We also conclude that applying established legal principles to the facts found to be credible, the judge reached the proper determination. The validity of the stop is not in question here since Detective Bonnano did not actually stop the car. Rather, defendant managed to arrive at her home and stop the car in her driveway before the officer could effectuate the stop. However, it is clear that he had sufficient basis to make a stop and had manifested his intention to do so by activating his lights and siren.

Putting the stop aside, defendant's claim is "that the interrogation at the scene was the equivalent of a search conducted without any probable cause." We disagree. This case is, as the judge concluded, governed by State v. Hickman, 335 N.J. Super. 623 (App. Div. 2000), in which we sanctioned brief questioning of the driver of a car subjected to a valid police stop, so long as the questioning "does not extend the duration of the stop." Id. at 636. We see no reason why Hickman is not applicable to the facts presented here. Defendant cannot avoid the consequences of a stop simply because she was able to reach home and pull into her own driveway. Had this stop taken place on the street, both the stop and the questioning would have been permissible. So too here. As a result, there was no violation of defendant's constitutional rights, and the motion to suppress was properly denied.

Finally, defendant claims that she received ineffective assistance of counsel, State v. Fritz, 105 N.J. 42 (1987) (adopting the standard of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Her claim is based on a single statement made by her attorney in summation, as follows:

I would submit to you there is one thing that Ms. Mills told you that probably isn't the truth. And I think she did it unintentionally. When she was asked by the Prosecutor, are you mad at Det. Bonanno, I think you could infer, despite what she said, she was probably indignant as could be then and remains so today if what she's saying is the truth. There was a point in time when she was testifying where Det. Bonanno was sitting next to [the prosecutor] and she basically glared at him. She was shooting arrows out of her eye at him and she didn't look to me, the questioner, or to you, ladies and gentlemen, during this exchange. She looked directly at Det. Bonanno. And I submit to you that gives you a little window into her mind and what happened back at her place, 115 Atkins Avenue, on November 6th, 2003.

Defendant claims that this statement undermined her credibility when the case depended entirely on her credibility. Indeed, defendant argues that her "defense was doomed to failure once counsel called his own client's credibility into question."

Normally we would bypass this issue in favor of allowing defendant to raise it in post-conviction proceedings. We see no reason to do so in this case. We agree with the State that defense counsel did not undermine defendant's credibility but, rather, emphasized that she was truthful in all important respects. The quoted comment was clearly designed to demonstrate defendant's righteous indignation toward Detective Bonanno for testifying falsely. Rather than undermine her credibility, it was intended to enhance her credibility. This type of strategic decision by counsel does not provide a basis for reversal except in the most extreme case. State v. Loftin, 146 N.J. 295, 365 (1996); State v. Davis, 116 N.J. 341, 357 (1989). Such tactical decisions are entitled to deference. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. That the jury did not "buy" counsel's argument, or defendant's testimony, does not make his assistance constitutionally ineffective. We find no error in this regard.

 
Affirmed.

(continued)

(continued)

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A-5700-04T4

June 30, 2006