STATE OF NEW JERSEY v. TERRELL WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6019-04T46019-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRELL WILLIAMS,

Defendant-Appellant.

________________________________________________________________

 

Submitted July 18, 2006 - Decided August 8, 2006

Before Judges Parker and Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment No. 03-08-1020.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Kevin G. Byrnes,

Designated Counsel, on the brief).

Zulima V. Farber, Attorney General of New

Jersey, attorney for respondent (Maura K.

Tully, Deputy Attorney General, of counsel

and on the brief).

PER CURIAM

Following denial of defendant's motion to suppress, he entered a plea of guilty to one count of third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). He was sentenced to a term of four years concurrent to a term he was then serving.

The charges arose out of events that occurred on July 3, 2003 during which New Brunswick Police Officers John Yurkovic and James Bobadilla observed defendant go down an alleyway in a residential area at 5:28 a.m. Both officers were familiar with defendant, and Bobadilla, who identified him by sight, knew that he was not a resident of the area. The officers called for backup and followed defendant. They found him sitting on the step of a private residence at the end of the alleyway.

Yurkovic testified at the suppression hearing that defendant appeared startled when he heard the officers approaching and told them that he had been drinking all night and was resting. Yurkovic observed a black plastic bag protruding from defendant's right hand. He asked defendant what he was doing in the backyard and what he was holding in his hand. Defendant did not respond initially and when asked the questions a second time, he stood up and took a "fighting stance."

When Yurkovic again asked defendant what he had in his hand, defendant moved his hand toward his mouth. Bobadilla grabbed defendant's hand and seized the bag. After a struggle, Yurkovic obtained the bag and, when he realized it contained cocaine, placed defendant under arrest.

During the suppression hearing, Bobadilla testified that he grabbed defendant's hand as defendant moved it toward his mouth because he knew that drug dealers often try to put narcotics in their mouths to conceal or destroy the drugs.

After hearing the testimony, Judge Jane B. Cantor denied the suppression motion for the following reasons:

Let me start by saying that I do believe that this was a field inquiry. I do not believe that people on private property cannot be questioned by police officers. On the other hand, if they are questioned, there has got to be a basis for an officer walking up to private property and asking a question or some reason to make an inquiry. That private property does not create a shield around the public or one that can be pierced much more easily than one is on private property. The public property and the private property distinction it doesn't make, it doesn't win in my mind because these officers made no attempt to determine whether this person was lawfully on private property or not lawfully on private property. So except for the fact they knew he didn't live in the area, it doesn't, it doesn't take away his rights to exist in private space in and of itself, so I do find it was a field inquiry. But I do feel that the officers had the right to walk over and speak to Mr. Williams for a number of reasons; one, because it was a high crime area. And even if it is constantly a high crime area, it is a high crime area, and when they do see someone who doesn't belong there in an area with knowledge that there's a lot of drug activity going on and recent burglaries, they have the right to stop and ask this person what he is doing there and what's going on. Under field inquiry the police have the right to ask questions so long as they're not harassing, overbearing or accusatory.

In this case the questions asked of Mr. Williams were neither harassing, overbearing, nor accusatory. They said what are you doing here. What's in your hand. That is it. Why were you here. What are you doing here and what's in your hand. Those are not unreasonable questions. On the other hand, Mr. Williams had the right to get up and walk away and choose not to listen to the questions, go on his way and not answer any of the questions, but he didn't, but he didn't do that. And although he had this right, I have to acknowledge that very few individuals would feel free when faced with four officers in uniform in an alleyway to get up, ignore what they're saying and walk away. So this was a detention there which requires more. But again I think the officers had, at that point, reason to stop and to detain Mr. Williams and again they had it because of the high crime area, because they knew he didn't live there. Because of the time of day. It is five o'clock in the morning when he's walking around an area where he doesn't live. All of this gives them the right to stop and question him. It's only when he responds to their questions by twofold; one, standing up and getting into a, what appeared to be a boxer stance, that might heighten the officer's security. While Officer Yurkovic testified that there [were] no safety concerns, I don't know how to take that response. I have to talk about the officer who testified for a moment. First of all, I find him to be very experienced, but he was under training by Officer Bobadilla and I rely on Officer Bobadilla, the training officer, in his statements to Yurkovic in finding that there was an experienced officer on the scene who was familiar with the way people act and the way the neighborhood operates. I think when one takes a combative stand there's a risk of safety to the officers. I think when Officer Bobadilla said he grabbed the arm of Mr. Williams because he thought he was going to swallow whatever was in the bag, I think that's based on experience of an officer and that's part of the totality of the circumstances. Those may have innocent and guilt-type inferences to their actions, but an experienced officer is allowed to rely on his experience in knowing how people with black bags who bring them to their mouth when they're being questioned by police officers respond to use that information in deciding to stop the movement to the mouth with a clenched black bag.

Now, what I thought about in chambers was that I think it's also common experience that people who drink sometimes keep open alcohol in bags. It is usually a paper bag that people buy alcohol in. But in listening to the way the bag was described with it being partially within a fist and protruding only a little bit out of the bottom, it doesn't sound like one would be confused as to whether this was a bottle of alcohol or some other type object. And I do also take that into consideration in considering the response of Officer Bobadilla to the actions of the defendant.

So at this point in time I believe the officers did have specific and articulable suspicion that would warrant the intrusion.

Now, I have got a high crime neighborhood and a person who doesn't belong there. A person who's making an aggressive stance with their body and a person who's making what I would consider a furtive gesture by trying to move this bag to their mouth.

For all those reasons I think their actions were appropriate and I am going to deny the application to suppress the evidence.

Defendant appealed and argues:

POINT ONE

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED

A. THE POLICE LACKED REASONABLE SUSPICION TO JUSTIFY THE DETENTION OF THE DEFENDANT

B. THE POLICE LACKED PROBABLE CAUSE TO ARREST AND TO CONDUCT A WARRANTLESS SEARCH OF THE DEFENDANT

C. THE INFORMATION PURPORTEDLY ESTABLISHING THE JUSTIFICATION FOR THE SEARCH AND SEIZURE WAS STALE

POINT TWO

THE SENTENCE IS EXCESSIVE

A. THE TRIAL COURT ERRED BY IMPROPERLY BALANCING THE AGGRAVATING AND MITIGATING FACTORS

B. THE DEFENDANT MUST BE RESENTENCED BECAUSE HE WAS SENTENCED ON THE BASIS OF AN UNCONSTITUTIONAL SENTENCING SCHEME

We have carefully considered the record in light of defendant's arguments and the applicable law and we are satisfied that his arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Cantor in her oral decision on February 16, 2005. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.

The officers' approach of defendant after observing him walk down an alleyway in a residential area where they knew he did not reside is appropriate police conduct under the community caretaking doctrine. State v. DiLoreto, 180 N.J. 264, 275-76 (2004). "'Community caretaking . . . is a service notion that police serve to ensure the safety and welfare of the citizenry at large.'" Id. at 276 (quoting John F. Decker, Emergency Circumstances, Police Responses, and Fourth Amendment Restrictions, 89 J. Crim. L. & Criminology 433, 445 (1999)). "'Neither a field inquiry nor community caretaking function requires that the police demonstrate probable cause or an articulable suspicion to believe that evidence of a crime will be found.' When courts review those forms of citizen-police encounters they 'employ a standard of reasonableness to determine the lawfulness of police conduct.'" DiLoreto, supra, 180 N.J. at 276 (quoting Kevin G. Byrnes, New Jersey Arrest, Search and Seizure 14.1-1 at 289 (2003)).

The officers' initial contact with defendant was pursuant to their community caretaking function and their preliminary questions as to why he was there and what he had in his hand constituted a reasonable field inquiry under the circumstances. State v. Nishina, 175 N.J. 502, 510 (2003) (holding that a field inquiry "may be conducted 'without grounds for suspicion'") (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)); State v. Davis, 104 N.J. 490, 497 (1986) (citing Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)).

Probable cause arose when defendant stood up, took a fighting stance and moved his hand containing the bag toward his mouth. State v. Sheffield, 62 N.J. 441, 444-48, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973). Thus, the officers lawfully approached defendant in the alleyway and there was sufficient probable cause for them to arrest defendant and to search him incident to the arrest. Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969); State v. Dangerfield, 171 N.J. 446, 461 (2002).

We find no merit in defendant's sentencing arguments. Judge Cantor sentenced defendant in accordance with the negotiated plea agreement and stated:

He has four prior indictable convictions: possession with intent to distribute in '88, possession in '89, possession with intent to distribute in '98, simple assault in '93, conspiracy and possession in 2002, and there are three violations of probation. There are also three disorderly persons convictions.

Although the judge found no presumption for or against incarceration, she found aggravating factors 3, 6 and 9 and no mitigating factors. N.J.S.A. 2C:44-1a and b.

Here, defendant argues that the court should only have applied aggravating factor 6, the extent of his criminal record, N.J.S.A. 2C:44-1a. He further argues that the court should have considered two mitigating factors: his drug addiction as mitigating factor 4 and his waiver of the right to trial and admitted guilt as mitigating factor 12. N.J.S.A. 2C:44-1b. Defendant maintains that his sentence should, therefore, be reduced to three years because the mitigating factors would outweigh the aggravating factors. We disagree.

 
We have considered the record in light of defendant's arguments and we are satisfied that the trial judge applied the appropriate aggravating factors based upon competent and credible evidence in the record. We are further satisfied that she gave detailed reasons for accepting the negotiated disposition. There is no basis for disturbing the sentence. State v. Roth, 95 N.J. 334, 366-67 (1984); State v. Mastapeter, 290 N.J. Super. 56, 60 (App. Div.), certif. denied, 146 N.J. 569 (1996).

Affirmed.

(continued)

(continued)

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A-6019-04T4

 

August 8, 2006