STATE OF NEW JERSEY v. FRANKY A. MUNIZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6630-03T46630-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANKY A. MUNIZ,

Defendant-Appellant.

_________________________________

 

Argued: September 19, 2006 - Decided December 18, 2006

Before Judges Kestin, Weissbard and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Ocean County, 03-04-0540.

Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Turner, of counsel and on the brief).

Maura K. Tully, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Acting Attorney General, attorney; Ms. Tully, of counsel and on the brief).

PER CURIAM

A sixteen-count indictment charged defendant and others with various crimes. Defendant was charged in count one with being a leader of a narcotics trafficking network (first-degree), N.J.S.A. 2C:35-3; in count two with first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a and -5b(1); in count six with attempted murder (first-degree), N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3a; in counts seven and ten with second-degree possession of weapons (handguns) for unlawful purposes, N.J.S.A. 2C:39-4a; in counts eight and eleven with third-degree unlawful possession of weapons (handguns), N.J.S.A. 2C:39-5b; in count nine with fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and in counts fifteen and sixteen with being a convicted person in possession of firearms (second-degree), N.J.S.A. 2C:39-7b.

Counts one and two were severed from the rest of the indictment and tried separately. In a pretrial motion, defendant moved to suppress evidence. That motion was denied. Following the eventual trial, at which some co-conspirators and persons charged as co-defendants testified for the State, the jury convicted defendant on both counts.

The trial court denied defendant's motion for a new trial, and granted the State's motions to sentence defendant to a mandatory extended term under N.J.S.A. 2C:43-6f and to a discretionary extended term as a persistent offender under N.J.S.A. 2C:44-3a. The court sentenced defendant, on the conviction for being a leader of a drug trafficking network, to a life term with a twenty-five year period of parole ineligibility; and, on the drug possession conviction, to a consecutive life term also with twenty-five years of parole ineligibility. Appropriate assessments, fees and penalties were ordered as required by statute; defendant's driver's license was suspended for six months on each conviction; and defendant was ordered to provide a DNA sample.

Several days later, defendant pled guilty, pursuant to a plea agreement, to count six of the indictment, amended to second-degree attempted aggravated assault, and to count fifteen. According to the verbatim record of the plea proceeding, the plea agreement provided for sentences that would be concurrent to those that had been imposed following the trial.

On appeal, defendant raises the following issues:

POINT I THE TRIAL JUDGE ERRED IN RULING THAT THE POLICE HAD REASONABLE SUSPICION TO BELIEVE THAT THE DEFENDANT WAS IN THE TRUCK SEIZED BY THE POLICE. THE POLICE ALSO LACKED PROBABLE CAUSE TO SEARCH THE CLOSED SHOE BOX IN THE CAR'S INTERIOR.

POINT II THE TRIAL JUDGE ERRED IN REFUSING TO CHARGE "MERE PRESENCE" AS PART OF THE CONSPIRACY CHARGE.

POINT III THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEAS ENTERED BY ALLEGED ACCOMPLICES DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not raised below)

We affirm.

Defendant's motion to suppress was based upon the argument that the police lacked probable cause to believe defendant was in a motor vehicle they had stopped and searched. The search produced a considerable quantity of cocaine that was eventually connected to defendant. We reject the State's argument that, because defendant was not an owner or occupant of the vehicle and, at the time of the search, had no proprietary, possessory, or participatory interest in the cocaine found therein, he lacks the standing to challenge the stop of the vehicle and the resulting seizure of the cocaine. The premises of that argument are entirely at variance with this State's broad principles of standing to challenge searches and seizures. See State v. Curry, 109 N.J. 1, 9 (1987); State v. Alston, 88 N.J. 211, 228-29 (1981); State v. Miller, 342 N.J. Super. 474, 478 (App. Div. 2001); see also State v. Cleveland, 371 N.J. Super. 286, 295-96 (App. Div. 2004). As a person against whom the fruits of the search were used in criminal prosecutions, defendant has the standing, under State law, to challenge both the search and the preceding stop.

The stop and search were valid, however. It is of no significance that, when the police stopped the vehicle, their belief defendant was an occupant turned out to be untrue. We are bound by the trial court's findings of fact on the motion to suppress. State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993); State v. Boone, 114 N.J. Super. 521, 525 (App. Div.), certif. denied sub nom., State v. Terry, 58 N.J. 595 (1971). Given the findings made, we are in substantial agreement with the trial court's view validating the stop, search, and seizure: that, based upon investigation, surveillance and reports, the police had reasonable grounds to believe defendant was an occupant and that, because of a report of a firearm in the vehicle, exigent circumstances existed.

We discern no merit sufficient to warrant discussion in a written opinion in defendant's argument that the trial court erred in declining to give a "mere presence" instruction to the jury in respect of the conspiracy element of the drug trafficking network leadership charge. R. 2:11-3(e)(2). Defendant was not charged as an accomplice but rather as a principal in the drug trafficking enterprise.

Defendant raises as plain error "the absence of a limiting instruction concerning the guilty pleas entered by alleged accomplices." Given the overwhelming evidence of defendant's guilt beyond that offered through showings of the guilty pleas of the co-conspirators and others charged, we discern no likelihood that a fuller instruction than the general "other crimes" charge that was given to the jury would have resulted in a different verdict. See, e.g., State v. Stefanelli, 78 N.J. 418, 436-37 (1979).

Defendant is entitled to a reconsideration of the sentences for the two first-degree convictions in the light of the Supreme Court's recent elucidations of sentencing policies and methodologies. See State v. Pierce, 188 N.J. 155 (2006); State v. Thomas, 188 N.J. 137 (2006); State v. Natale, 184 N.J. 458 (2005); State v. Abdullah, 184 N.J. 497 (2005). At minimum, defendant is entitled to a statement of reasons for any discretionary extended term and consecutive sentences imposed.

 
The convictions are affirmed. The matter is remanded for reconsideration of the sentences.

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A-6630-03T4

December 18, 2006