STATE OF NEW JERSEY v. SHANE LEWIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1678-05T51678-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHANE LEWIS,

Defendant-Appellant.

____________________________________

 

Submitted December 18, 2007 - Decided

 

Before Judges Fuentes, Grall and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

02-11-2531.

Harkavy, Goldman, Goldman, Caprio & Gerstein,

attorneys for appellant (Martin S. Goldman,

on the brief).

Anne Milgram, Attorney General, attorney for

respondent (Joie Piderit, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant Shane Lewis pled guilty to one count of third-degree possession of heroin and ecstasy within 1000 feet of school property, N.J.S.A. 2C:35-7; one count of second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7; and to an unrelated accusation charging him with third-degree bail jumping, N.J.S.A. 2C:29-7. In pleading guilty, defendant reserved his right to appeal the trial court's denial of a motion to suppress evidence. As part of the negotiated plea agreement the court dismissed the remainder of the charges against defendant, which were outlined in an eighteen-count indictment.

The court sentenced defendant to a term of ten years with five years parole ineligibility on the drug charge; to a concurrent term of five years with five years of parole ineligibility on the firearm possession; and to a concurrent three-year term for bail jumping. Defendant was also ordered to pay the mandatory fines and penalties associated with these offenses.

Defendant now appeals. We affirm defendant's conviction, but remand for re-sentencing. We will address the legal issues raised by defendant in the context of the record developed before the trial court.

In the early evening hours of June 7, 2002, Jersey City Police Officer Thomas McVicar, was stationed in the area of 20-22 Siedler Street, when he observed a male juvenile standing in front of 20-22 Siedler Street. A white Oldsmobile was parked directly across from this location, with three individuals inside. McVicar recognized defendant as the driver; he did not know the other two occupants. He knew defendant by sight, because over the course of several months, McVicar had been involved in an ongoing investigation concerning illicit narcotics trafficking in the area. Specifically, McVicar had information from numerous sources that an individual identified as Shane Lewis was engaging in drug activity in the area of 20-22 Siedler Street. These informants had also implicated the Oldsmobile as an instrument of distribution.

McVicar had received information that the communications of narcotics officers were possibly being monitored on "channel five;" and that individuals in the area of Siedler Street were using "small family radio service radios to communicate amongst themselves." As a result, McVicar had been supplied with a radio that allowed him to scan sixteen separate channels, with the hope of detecting illicit transmissions.

At one point, McVicar observed defendant pick up a small radio; put it to his mouth and, at the same time, heard a voice come through his police radio that stated "yo' dog, yo' dog, you up son." He then heard a second male voice state "I got it, I got it." McVicar then saw defendant put the radio up to his mouth and start speaking. He then heard the same voice from the first transmission say "you stay on it, the narcos are coming out, they're getting in their cars." At the end of this transmission, McVicar observed defendant move the radio away from his mouth and saw the Oldsmobile pull out and proceed off of Siedler Street.

During the course of his surveillance, McVicar observed the Oldmosbile travel back and forth through the area of Siedler Street several times. He then observed an unidentified female enter the area, approach the juvenile male standing in front of 20-22 Siedler Street, and hand him paper currency. The juvenile ran into 20-22 Siedler Street and returned with a number of small items, which he handed to the female. Immediately thereafter, the police detained the female and recovered two bags of suspected heroin from her person.

McVicar received a secured radio transmission from another officer that defendant had driven past them in the white Oldsmobile and had observed them conducting their surveillance. McVicar then saw the white Oldsmobile turn onto Siedler Street and proceed toward 20-22 Siedler Street at a high rate of speed. At the same time, a male's voice came over the radio stating "shut it down, shut it down." The white Oldsmobile then pulled up in front of 20-22 Siedler Street. McVicar saw defendant lean out of the driver's side window and yell an inaudible message at the male juvenile; who in turn walked into 20-22 Siedler Street, quickly re-emerged, and began to walk away from the area. The juvenile was eventually detained and arrested.

The police were unable to locate the Oldsmobile. That same day, McVicar reported to the narcotics base and prepared an application for a warrant for defendant's arrest charging him with conspiracy, employing a juvenile for illicit narcotics distribution, and obstructing governmental function. No warrant was actually issued. McVicar thereafter learned from an informant that defendant was transporting narcotics from somewhere in the area of Maple and Pacific Avenues to 20-22 Siedler Street, using the white Oldsmobile.

The investigation of this case, consisting of surveillance operations, did not start again until July 21, 2002, forty-four days after McVicar first began his surveillance of defendant. Other than monitoring defendant's activities, the police did not take any action for the first few days. The only contact with defendant occurred when the police stopped him for a routine traffic violation. Defendant was stopped, issued several motor vehicle summonses, and his vehicle was impounded. Defendant was then released without further incident.

The officers recovered forty-nine bags containing suspected heroin from 20-22 Siedler Street. Thereafter, McVicar, who had continued his surveillance of 370 Pacific Avenue, observed a gray Buick pull up to that location, with defendant in the passenger seat. Defendant entered 370 Pacific Avenue, and stuck his head out of a second floor window of the apartment building. He left the building carrying a brown paper bag and returned to the Buick.

This time, McVicar radioed perimeter units to stop defendant. He was arrested for the charges related to the June 7, 2002, incident. The brown paper bag seized from defendant contained a banana peel and an empty box of juice; no drugs were found. Defendant was transported to the narcotics base for processing. While engaged in this process, defendant stated that 370 Pacific Avenue was the home of his aunt, Minnie Brown; he regularly stayed in a back bedroom of the apartment. According to defendant, his aunt and other members of the household had access to his room.

Armed with this information, Officers McVicar, Trobich, Ludwig, Sakalofski and Sergeant O'Callahan responded to 370 Pacific Avenue, where they encountered Minnie Brown. The police informed her that defendant (her nephew) had been arrested, and that they believed that there might be illicit drugs or other unlawful paraphernalia in her apartment.

At this point, the facts diverge. According to the police, they asked Brown for her consent to search the apartment, and informed her of her right to refuse consent. She signed the consent form freely and without intimidation. After searching the back of the bedroom, the police found three automatic firearms, 2,306 bags of suspected heroin, seven suspected ecstasy pills, and $12,477 in cash. According to the Officers who testified at the suppression hearing, Brown told them that she occasionally entered the room, and that other members of the household frequently used the room as well. Defendant admitted ownership of these items.

Brown, who also testified at the motion to suppress hearing, claimed that the officers were rude and overbearing; they threatened that unless she consented to the search, they would have the Division of Youth and Family Services forcibly remove and take legal custody of her children and grandchildren. She signed the consent search form after the search was completed, and as a direct consequence of the improper intimidation tactics.

Against these facts, Judge Tolentino found the police officers' testimony credible, and rejected Brown's version of the events. Specifically, she accepted "that there was an ongoing investigation in this case for forty-seven days." The testimony of the officers regarding the investigation showed that there "were steps with respect to the issue of totality of the circumstances" and that "all of the information they had right from the beginning does support the fact that their actions were reasonable."

Defendant raises the following arguments in support of his appeal.

POINT I

THE EVIDENCE SHOULD BE SUPPRESSED BECAUSE THE POLICE USED AN IMPROPER PRETEXT FOR ENTERING THE PREMISES ON JULY 23 BY UIILIZING AN UNDOCKETED ARREST WARRANT DRAFTED ON JUNE 7 AND UNSUPPORTED BY JUDICIAL REVIEW.

POINT II

THE AUNT'S CONSENT TO SEARCH WAS NOT VOLUNTARILY GIVEN, AND, THUS, THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE WARRANTLESS SEARCH WAS VIOLATIVE OF THE FOURTH AMENDMENT AND ARTICLE I, PARA. 7 OF THE STATE CONSTITUTION.

POINT III

THE WARRANTLESS SEARCH OF DEFENDANT'S BEDROOM AFTER DEFENDANT HAD BEEN ARRESTED WAS NOT JUSTIFIED UNDER ANY JUDICIALLY RECOGNIZED EXCEPTION TO THE WARRANT REQUIREMENT.

POINT IV

IMPOSITION OF THE MAXIMUM TERM ON COUNT THREE VIOLATES DEFENDANT'S CONTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below)

We reject the arguments reflected in Points I, II, and III. As to Point IV, although we reject defendant's constitutional argument, we are bound to vacate the sentence imposed and remand for re-sentencing.

As to Point I, we are satisfied that the police had probable cause to arrest defendant, even without a judicially sanctioned arrest warrant. State v. Moore, 181 N.J. 40, 46 (2004). Defendant's arguments in Points II and III lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). A search conducted pursuant to a valid consent by the homeowner is a "well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search of a home." State v. Domicz, 185 N.J. 285, 305 (2006).

Brown's access to defendant's bedroom, as the lawful occupant of the apartment, vested her with authority to consent to the search. State v. Farmer, 366 N.J. Super. 307 (App. Div.), certif. denied, 180 N.J. 456 (2004). As an appellate court, we are bound by Judge Tolentino's factual findings concerning Brown's credibility, as that bore on the question of whether the consent to search the apartment was freely given, and not the product of improper intimidation or duress by the police. State v. Locurto, 157 N.J. 463, 471 (1999).

With respect to the sentence, we are satisfied that the sentencing judge (not Judge Tolentino) properly applied the holding in State v. Natale, 184 N.J. 458, 489 (2005); however, we are nevertheless compelled to remand the matter for re-sentencing. In the process of arriving at the sentence imposed, the court found aggravating factors three, six, nine and eleven, and no mitigating factors. N.J.S.A. 2C:44-1. Defendant's criminal history supports the court's findings as to aggravating factors three, six, and nine; and no mitigating factors. State v. Roth, 95 N.J. 334, 364 (1984).

There is no rational basis, however, for aggravating factor eleven, because defendant pled guilty to violation of N.J.S.A. 2C:39-7, an offense that mandates a term of imprisonment of not less than five years. State v. Dalziel, 182 N.J. 494, 502-03 (2005).

On remand, the court must reweigh the remaining aggravating factors, and impose the sentence it deems appropriate. This process may lead the court to conclude that the original sentence remains appropriate; or it may not. We leave that ultimate decision to the sound discretion of the sentencing judge.

Defendant's conviction is affirmed. The matter is remanded for re-sentencing consistent with this opinion. We do not retain jurisdiction.

This ten-year term obviously exceeds the maximum ordinary term of incarceration authorized by N.J.S.A. 2C:43-6(a)(3) for a third-degree offense. The record does not contain any explanation for this occurrence. Our independent review of the Pre-sentence Investigation Report indicates that defendant has one prior conviction for violation of N.J.S.A. 2C:35-7. Defendant thus appears to fall within the purview of N.J.S.A. 2C:43-6(f), requiring the court to impose a mandatory extended term "upon the application of the prosecuting attorney." Rule 3:21-4(e) requires the State to move for the imposition of such an extended term within fourteen days from the date defendant entered his guilty plea. There is nothing in the record before us, however, that shows that the State complied with this Rule. We expect the trial court to address this issue on remand.

At the hearing, Officer McVicar stated that narcos is a street term for narcotics plain clothes officers.

Aggravating factor eleven provides "[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices." N.J.S.A. 2C:44-1.

(continued)

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11

A-1678-05T5

March 26, 2008