STATE OF NEW JERSEY v. FREDERICK GANIE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6586-03T46586-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FREDERICK GANIE,

Defendant-Appellant.

_______________________________________

 

Submitted May 1, 2006 - Decided May 30, 2006

Before Judges Fall and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-05-0588.

Yvonne Smith Segars, Public Defender, attorney for appellant (Diane Uniman, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Mary E. McAnally, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was charged with Donte Ashe (Ashe) under a Mercer County indictment with robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (count one); theft by unlawful taking, N.J.S.A. 2C:20-3a and N.J.S.A. 2C:2-6 (count two); possession of weapon for an unlawful purpose, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:2-6 (count three); unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b and N.J.S.A. 2C:2-6 (count four); aggravated assault, N.J.S.A. 2C:12-1b(4) and N.J.S.A. 2C:2-6 (count five); and theft by receiving stolen property, N.J.S.A. 2C:20-7 and N.J.S.A. 2C:2-6 (count six). Defendant was also charged with possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b (count seven). Defendant moved to suppress certain evidence derived from a search of a motor vehicle. The motion was denied. Defendant thereafter entered a plea of guilty on count one. The judge sentenced defendant to a twenty-year term of incarceration with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appeals his conviction and the sentence imposed. He raises the following contentions:

POINT I: THE COURT ERRED BY NOT TAKING TESTIMONY AT THE MOTION TO SUPPRESS HEARING.

POINT II: THE TRIAL JUDGE ABUSED HER DISCRETION IN DENYING THE MOTION TO SUPPRESS EVIDENCE.

POINT III: THE DEFENDANT WAS MISINFORMED AT THE PLEA HEARING REGARDING THE CONSEQUENCES OF PAROLE UNDER THE NO EARLY RELEASE ACT (Not raised below).

POINT IV: THE COURT IMPROPERLY APPLIED A MANDATORY EXTENDED TERM SUCH THAT THE TWENTY-YEAR SENTENCE IMPOSED IS ILLEGAL AND EXCESSIVE (Not raised below).

A. THE DEFENDANT SHOULD HAVE BEEN CHARGED AS A SECOND-DEGREE OFFENDER.

B. THE PROSECUTOR FAILED TO PROVIDE ADEQUATE PROOFS ON THE RECORD REGARDING PRIOR CONVICTIONS.

C. THE SENTENCE VIOLATES PRINCIPLES OF APPRENDI v. NEW JERSEY, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and BLAKELY v. WASHINGTON, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

We begin our consideration of this appeal with a brief statement of the relevant facts. On the evening of January 11, 2003, two men robbed the J&C deli in Trenton. The police were called and an alert was issued advising that the suspects were two black men, wearing dark clothing and masks, with one in possession of a gun. Sergeant Hill (Hill) and two officers of the Trenton Police Department responded to the deli. The incident had been captured on the deli's video surveillance tape. Hill spoke with John Lee (Lee), one of the victims of the robbery, and viewed the videotape. Hill broadcast another alert, which advised that the suspects were two black males with matching blue hooded sweatshirts and blue pants. Hill's broadcast indicated that one of the suspects was wearing black and white sneakers and one of the suspects was in possession of a handgun. The broadcast also advised that the two men fled on foot.

Officers Fink and Suschke heard the initial dispatch as well as Hill's subsequent broadcast. The officers responded and one block from the deli observed two men wearing blue hooded sweatshirts. The men were later identified as defendant and co-defendant Ashe. According to the officers, defendant and Ashe saw the police car and turned their heads away. The men got into a gray Mazda. Ashe sat in the driver's seat. He immediately started the vehicle and backed the car up the street. The officers turned their vehicle around and pulled up behind the Mazda, stopping the car on the corner of Webster Street and Dickinson Street.

When the officers approached the stopped car, they noticed that the occupants were moving around inside. The officers ordered defendant and Ashe out of the vehicle at gunpoint. They observed that defendant was wearing black and white sneakers, which corresponded to the information broadcast by Hill. Shortly thereafter, Hill arrived and identified defendant and Ashe as the perpetrators he had seen on the deli's videotape. The officers searched the Mazda and found a semi-automatic handgun under the driver's seat.

Defendant first argues that the judge erred in not taking testimony at the hearing on the motion to suppress. We disagree. When a motion is made to suppress evidence, and the State files its statement of facts in respect of that motion, defendant is required to "file a brief and counter statement of facts no later than three days before the hearing." R. 3:5-7(b). "If material facts are disputed, testimony thereon shall be taken in open court." R. 3:5-7(c). An evidentiary hearing is only required when the defendant's counter statement raises a genuine issue of material fact. State v. Green, 346 N.J. Super. 87, 90-91 (App. Div. 2001) (citing State v. Hewins, 166 N.J. Super. 210, 213-15 (Law Div. 1979), aff'd, 178 N.J. Super. 360 (App. Div. 1981)).

In this matter, defendant did not file a brief in support of his motion to suppress. He relied instead on a brief submitted on behalf of his co-defendant Ashe, in which Ashe's attorney only disputed certain facts set forth in the State's brief, specifically the statements that the officers had observed the suspects looking startled or nervous and engaging in furtive behavior. Counsel stated that he did not otherwise dispute the "major points of the State's version of facts as contained in the State's brief." In addition, Ashe's counsel argued that the "critical issue" before the court on the motion to suppress was the description of the suspects broadcast by the police. Counsel asserted that the description of two black males in dark clothing was too generalized. Counsel also argued that the suspects' gender and the manner in which they were clothed could not be discerned from the videotape.

We are not convinced that these assertions were sufficient to raise a genuine issue of any material fact which required the judge to take testimony at the suppression hearing. Defendant did not dispute the "major points" in the State's version of the events. The State offered to present testimony and defendant did not insist upon having the officers testify. Because the facts material to the judge's decision were not in dispute, the judge did not abuse her discretion in deciding the suppression motion without taking testimony.

We also are convinced that the judge correctly denied the motion to suppress. The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures by requiring the police to obtain a warrant based on probable cause unless the search or seizure falls within one of the recognized exceptions to the warrant requirement. State v. Rodriguez, 172 N.J. 117, 125 (2002) (citing State v. Maryland, 167 N.J. 471, 482 (2001)). A police officer does not require a warrant when making an investigatory stop if the stop is based on "specific and articulable facts which, taken together with rational inferences from those facts," give rise to a reasonable suspicion of criminal conduct. Id. at 126 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). "[R]easonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." Id. at 127 (quoting State v. Stovall, 170 N.J. 346, 356 (2002)).

Moreover, when making an investigative stop, a police officer is permitted to conduct a protective search for weapons if "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." State v. Thomas, 110 N.J. 673, 679 (1988) (emphasis omitted) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909)). A police officer may undertake a protective search for weapons when the officer has a reasonable suspicion that a suspect was involved in a violent crime or has a "specific and objectively credible reason to believe the suspect is armed." Id. at 680.

In this case, the judge correctly found that the officers had "reasonable suspicion" to make an investigatory stop of defendant and Ashe. The record shows that Hill broadcast his description of the suspects of the robbery as two black males wearing matching blue pants and hooded blue sweatshirts. Furthermore, Hill's broadcast alerted the officers that one of the suspects possessed a handgun and they fled from the deli on foot. Officers Fink and Suschke observed two men whose clothing matched the description. They were seen on foot one block from the deli soon after the robbery was reported. These facts provided the officers with "reasonable suspicion" that defendant and Ashe had been engaged in criminal activity. Moreover, since both the initial alert and Hill's broadcast indicated that one of the two suspects was armed, the officers had reasonable grounds to undertake a protective search of the vehicle for weapons.

We turn to defendant's assertion that he was misinformed at the plea hearing concerning the consequences of parole under NERA. Defendant notes that under NERA, after completion of his sentence of incarceration, he is subject to an additional five-year period of parole supervision and a violation of the conditions of parole supervision could result in re-incarceration for the remainder of the parole supervision period. Defendant alleges that he was not fully informed of the parole and penal consequences of parole supervision under NERA.

The record shows that at his plea hearing, defendant acknowledged that he had signed a supplemental plea form for NERA cases. Defendant did not answer question # 2, which stated that he understood that the judge must impose a five-year term of parole supervision to begin upon completion of the sentence of incarceration. However, defendant answered question # 3, which indicated that he understood that a violation of parole would cause his parole to be revoked and, in the circumstances, he could be returned to prison to serve all or any portion of the remaining parole supervision period.

We have substantial doubt as to the merits of defendant's contention that he was not fully informed of the potential penal consequences of a violation of a condition of parole supervision under NERA in view of the plain language of question # 3 and defendant's indication by way of his response that he understood the question. Defendant's failure to answer question # 2 does not establish that defendant was in any way confused by question # 3. Moreover, defendant has not shown that if he had a better understanding of the consequences of parole supervision of NERA, he would have rejected the plea. In this regard, we note that the plea agreement resulted in the dismissal of six other charges, including two second-degree offenses.

Nevertheless, we have held that "where application of NERA has been acknowledged at the time of a negotiated plea, the defendant must first make an application in the trial court to vacate the plea." State v. Hernandez, 338 N.J. Super. 317, 323 (App. Div. 2001). An initial application to the trial court is necessary so that "the record will be clear that [the defendant] understands that a successful attack on the sentence means that all charges may be resurrected." Ibid. (citing State v. Cheung, 328 N.J. Super. 368, 370 (App. Div. 2000). We therefore affirm the conviction, without prejudice to defendant's right to move in the trial court to withdraw the plea. State v. Staten, 327 N.J. Super. 349, 360 (App. Div.), certif. denied, 164 N.J. 561 (2000).

Defendant further contends that the judge erred in sentencing him to a mandatory extended term pursuant to N.J.S.A. 2C:44-3d as a second offender with a firearm. Defendant contends that the prosecutor failed to submit sufficient proofs regarding the prior conviction. Defendant also argues that the sentence violates Sixth Amendment principles under Apprendi, supra, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435, and Blakely, supra, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403.

We reject defendant's assertion that he should not have been subject to a mandatory extended term as a second offender pursuant to N.J.S.A. 2C:44-3d. Defendant contends that because all of the weapons offenses were dismissed as part of the plea argument, he somehow assumed that he would not be faced with a mandatory extended term on the remaining robbery charge.

The record shows, however, that at the plea hearing the assistant prosecutor stated that defendant would be pleading guilty to count one of the indictment, in which defendant was charged him with robbery in the first degree. The assistant prosecutor further asserted that the State was recommending a twenty-year custodial term with 85% of that term to be served without parole. Moreover, the assistant prosecutor stated that defendant was eligible for a mandatory extended term under N.J.S.A. 2C:44-3d, which the prosecutor said "speaks to second offender with a firearm." The record thus makes clear that when he entered the plea, defendant would be subject to extended term sentencing under N.J.S.A. 2C:44-3d.

The State concedes, however, that the matter must be remanded so that sufficient proof may be placed on the record of defendant's prior Graves Act conviction to establish a factual basis for the imposition of a mandatory extended term pursuant to N.J.S.A. 2C:44-3d. See State v. Martin, 110 N.J. 10, 17-19 (1988).

Defendant additionally contends that imposition of a mandatory extended term in this case violates the Sixth Amendment principles enunciated in Apprendi and Blakely. We disagree. Here, defendant admitted that, on the evening in question, he and Ashe used a gun to rob the deli. "When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding." State v. Natale, 184 N.J. 458, 477 (2005) (quoting Blakely, supra, 542 U.S. at 310, 124 S. Ct. at 2541, 159 L. Ed. 2d at 417). See also State v. Franklin, 184 N.J. 516, 538 (2005) (use of defendant's plea admissions for purposes of imposing an enhanced sentence under N.J.S.A. 2C:44-3d is not prohibited judicial factfinding). Furthermore, the sentence imposed in this case was at the bottom of the range for a first-degree offense. N.J.S.A. 2C:43-7a(2). Thus, the mandatory extended term sentence does not violate defendant's right to trial by jury under the Sixth Amendment.

We therefore affirm defendant's conviction without prejudice to an application by defendant to withdraw his guilty plea based on his claim that he was not properly informed of the penal consequences of parole supervisions under NERA. We also affirm defendant's sentence, subject to submission of proof by the State on remand that defendant is eligible for sentencing under N.J.S.A. 2C:44-3d.

Affirmed in part and remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

Defendant is referred to as "Frederick D. Gaines" in the notice of appeal and in the judgment of conviction. However, during the plea hearing, defendant referred to himself as "Frederick Ganie" and spelled it "G-A-N-I-E" which is consistent with the spelling in the adult pre-sentence report. We therefore have corrected the caption of this appeal.

(continued)

(continued)

13

A-6586-03T4

May 30, 2006