STATE OF NEW JERSEY v. GREGORY WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6237-03T46237-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY WILLIAMS,

Defendant-Appellant.

____________________________________________________

 

Submitted March 13, 2006 - Decided March 22, 2006

Before Judges Fall and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 03-01-0074 and 02-03-0453.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was charged, by way of Indictment No. 02-03-0453I, with having committed on December 28, 2001 third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree possession of CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7. In addition, defendant was charged, by way of Indictment No. 03-01-00074I, with having committed on May 15, 2002 third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a). Defendant was charged in Indictment No. 03-01-00073I, with having committed on May 15, 2002 fourth-degree criminal contempt for disobeying an order issued pursuant to the Drug Offender Restraining Order Act (DOROA), N.J.S.A. 2C:29-9(a). And, defendant was charged in Indictment No. 03-01-00046I, with having committed, on September 3, 2002, fourth-degree criminal contempt for disobeying an order issued under the Drug Offender Restraining Order Act (DOROA), N.J.S.A. 2C:29-9(a).

In Indictment No. 02-03-0453I, defendant moved to suppress evidence on July 31, 2002 (the first suppression motion). After hearing testimony and argument, Judge John F. Malone denied that motion for reasons expressed in an oral opinion. In Indictment No. 03-01-00074I, defendant moved to suppress evidence on September 5, 2003 based upon certain stipulated facts (the second suppression motion). Judge Malone also denied that motion for reasons expressed in an oral opinion.

On September 24, 2003, pursuant to a plea bargain, defendant pleaded guilty to (1) possession of CDS with intent to distribute in Indictment No. 02-03-00453I; (2) possession of CDS in Indictment No. 03-01-00074I; and (3) contempt in Indictment No. 03-01-00046I. On January 16, 2004, defendant pleaded guilty to violating the terms of probation in Indictment No. 00-10-1204I, an unrelated case, for failing to remain offense free.

On January 16, 2004, Judge Malone sentenced defendant, pursuant to the plea agreement, to a term of imprisonment of seven years with a three-year period of parole ineligibility on the possession with intent to distribute conviction; a concurrent five-year term of imprisonment for the possession conviction; and a concurrent one-year term of imprisonment on the contempt conviction. Defendant was also discharged from probation without improvement on Indictment No. 00-10-1204I. The mandatory fines and assessments were also imposed, and the remaining charges were dismissed.

Defendant appealed, asserting the following arguments:

I. THE STATE FAILED TO PROVE THAT THE WARRANTLESS SEARCH AND SEIZURE OF THE DEFENDANT ON DECEMBER 28, 2001 . . . COMPLIED WITH THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. PAR. [sic] 7 OF THE NEW JERSEY CONSTITUTION.

II. THE SEARCH AND SEIZURE ON MAY 15, 2002 WAS UNLAWFUL BECAUSE THE RESTRAINING ORDER, WHICH THE DEFENDANT PURPORTEDLY VIOLATED, HAD BEEN ISSUED UNLAWFULLY.

III. THE DEFENDANT'S SENTENCE IS EXCESSIVE.

A. THE IMPOSITION OF THE SEVEN-YEAR EXTENDED TERM SHOULD BE VACATED BECAUSE THE TRIAL COURT DID NOT INDEPENDENTLY REVIEW THE PROSE-CUTOR'S DECISION TO SEEK AN EXTENDED TERM.

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

C. THE TRIAL COURT IMPROPERLY BAL-ANCED THE AGGRAVATING AND MITIGATING FACTORS.

We reject these arguments and affirm.

In Point I, defendant argues that Judge Malone should have granted his first suppression motion. On July 31, 2003, after hearing the testimony of both Detective Thomas Robertson of the Plainfield Police Department and defendant, Judge Malone rendered the following oral findings of fact and conclusions of law:

On December 28, 2001 at approximately 7:30 in the evening Plainfield Police Officers Robertson and Simeon conducted a surveillance in the 1200 block of West Front Street [in Plainfield] using an unmarked vehicle parked on . . . the street.

This is an area known to the police and specifically Officer Robertson to be a high narcotics area in which numerous CDS arrests have occurred. On that occasion . . . Officer Robertson made an observation of four males standing on the north side of the street.

He observed a black female approach and saw that person speak briefly to one of the males who he identified as the defendant. After that brief conversation, the defendant crossed West Front Street and went to the alleyway alongside of 1177 West Front.

He was out of sight of the officer for a brief period of time. He re-emerged from the side of the house in about 20 seconds and returned to the black female, who had now crossed the street and was standing . . . near the front of 1177.

Officer Robertson observed what appeared to be . . . a transaction between them, in that he saw [defendant] hand something to the black female [who then] left the area and . . . [defendant] returned across West Front Street.

Approximately five minutes later an automobile pulled up. [Defendant] engaged in a brief conversation with the driver of the automobile, ran across the street, again went along the side of 1177 West Front, which is an alleyway shared with 1175 West Front where the defendant indicates he was residing.

He emerged shortly after entering that alleway. He turned to the vehicle, got into the car. [T]he driver drove . . . off, went a short distance, followed by the police officers, when voluntarily the Volvo pulled over.

Officer Robertson exited the police vehicle, approached the car, observed the defendant seated in the front seat counting money. He appeared to be nervous, and upon observing the officer he said ["]oh, shit, it's the narcs.["]

. . . Officer Robertson opened the door, ordered [defendant] out of the car, conducted a pat down, felt a bulge in his right pocket, conducted then a search, removed the bulge, which turned out to be a quantity of CDS. It, the CDS together with the money the defendant had, was seized.

The issue here is whether the officer had probable cause to effect the arrest of [defendant] based upon the circumstances as set forth in the statement of facts.

Certainly the statement of facts contains items which . . . individually [do not] give . . . rise to probable cause, standing . . . on this street, speaking to a group of people, entering an alleyway, returning, having a conversation with a person who approached, as taken individually do not give rise to probable cause, but it is . . . [the] totality of the circumstances which is operative.

The circumstances here are that in a high narcotics area a trained, experienced police officer observed conduct of [defendant] consistent with narcotics activity.

He specifically observed, after a brief conversation . . . with a black female [defendant] leave the immediate area, run into an alleyway, return, and hand something to the black female.

[I]n my view, . . . Officer Robertson [was] candid in his testimony that he could not identify or describe the object, but it is not necessary that he be able to discern that in fact the object was narcotics. It was an object handed to the female who then immediately left the area.

Based upon his training and experience, the officer believed he had [formed] the reasonable belief that he had observed a narcotics transaction. There was therefore a well-grounded suspicion that criminal activity had occurred, giving rise to probable cause to arrest the defendant.

Observing a hand-to-hand transaction has been found . . . to be a sufficient basis to give rise to probable cause. . . .

The stop, therefore, or the approach . . . to the defendant when the automobile in which he was a passenger some five minutes later by Officer Robertson, with Officer Robertson opening the vehicle and directing the defendant to exist and . . . patting him down, was all done with probable cause to believe that criminal activity had occurred, that [defendnat] had engaged in a narcotics transaction.

There is no violation of defendant's fourth amendment rights presented to the [c]ourt in this matter . . . .

We have carefully scrutinized the record and conclude that Judge Malone's findings are based upon evidence contained in the record and are, therefore, entitled to our deference. State v. Arthur, 184 N.J. 307, 320 (2005); State v. Locurto, 157 N.J. 463, 472 (1999). We affirm the order that denied defendant's first suppression motion, substantially for the reasons set forth by Judge Malone in his oral opinion of July 31, 2003.

In Point II, defendant contends that Judge Malone erred in denying his second suppression motion. In response to that motion, the State argued that a restraining order had previously been entered and served upon defendant, which prohibited defendant from being in a particular location. The State claimed that, upon finding defendant in that location, the police had probable cause to suspect defendant of criminal activity and, therefore, the police were entitled to stop defendant and search him incident to an arrest for violating the restraining order. Defendant argued that the restraining order was both objectively and subjectively unclear.

In denying this second suppression motion, Judge Malone stated:

The [restraining] order reads as follows: That the defendant was prohibited and restrained from entering, and/or returning to the following location: 1200 block of West Front Street, and 200 feet in every direction therefrom.

It seems to me to be clear on its face as to what was prohibited. That [defendant], whom acknowledged receipt of this order, was not to be within a certain location. And clearly he was within that area.

The conduct of the defendant from being in the area gave rise to probable cause to the police to believe that he was committing a violation of the law. For two reasons I believe that there was probable cause to arrest him:

Either he actually was in violation of the restraining order, and I think he was, since, as I said, it's clear on its face, or the police in good faith having this order in front of them believed that they had reasonable suspicion that the defendant was violating the law.

It gave them probable cause to stop him, to arrest him, and once having been arrested, he was subject to search, incident to the arrest, and therefore, the bags of cocaine that he was trying to discard from his pocket were lawfully seized by the police incident to that arrest.

The fourth amendment was not violated by the conduct of the Plainfield Police in connection with this matter.

We affirm the order that denied this second suppression motion substantially for the reasons set forth by Judge Malone in his oral decision of September 5, 2003.

Lastly, we conclude that the arguments contained in Point III regarding the sentence imposed on defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-6237-03T4

March 22, 2006