STATE OF NEW JERSEY v. JAN SORIANO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6333-04T46333-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAN SORIANO,

Defendant-Appellant.

____________________________

 

Submitted September 25, 2008 - Decided

Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-03-0658.

Law Office of Paul W. Bergrin, attorneys for appellant (Robert Carter Pierce, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Jan Soriano and co-defendant Robert Cerone were charged by a Monmouth County Grand Jury with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1). On August 18, 2004, the trial court denied their motion seeking to suppress evidence. On January 4, 2005, the court denied defendant's motion seeking to suppress statements he made to the police after his arrest. Tried to a jury, defendant was found guilty of unlawful possession of a CDS and co-defendant was found not guilty of the charge, but guilty of aiding defendant in the unlawful possession of the cocaine. On June 17, 2005, the trial court sentenced defendant to eighteen months of probation and a suspension of his driving privileges for a period of six months. All appropriate fines and penalties were also imposed.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT ERRED IN DENYING DR. SORIANO'S MOTION TO SUPPRESS AS THE POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY TO JUSTIFY THE MOTOR VEHICLE STOP.

POINT II.

THE TRIAL COURT ERRED IN DENYING DR. SORIANO'S MOTION TO SUPPRESS HIS STATEMENT THAT HE HAS A DRUG PROBLEM AS DETECTIVE SCULLY'S CONDUCT WAS THE FUNCTIONAL EQUIVALENT OF INTERROGATION IN VIOLATION OF MIRANDA.

POINT III.

PATROLMAN TOWNSEND'S AND DETECTIVE SCULLY'S EXPERT OPINION TESTIMONY ON HOW CDS IS DISTRIBUTED WITHOUT BEING PACKAGED WAS IMPROPERLY INTRODUCED TO THE JURY IN VIOLATION OF N.J.R.E. 702 AND REQUIRED THE TRIAL COURT TO INSTRUCT THE JURY ON EXPERT TESTIMONY. (NOT RAISED BELOW).

After considering defendant's arguments in light of the record and applicable law, we affirm.

I.

The arguments presented in Points I and II challenge the trial court's denial of defendant's pretrial motions to suppress evidence and to suppress his post-arrest statements. Accordingly, we briefly state the facts as adduced from the transcripts of the hearings on the motions.

On September 28, 2003, at approximately 8:30 p.m., Detective-Sergeant James Scully and Detective Jay Clark of the Monmouth County Prosecutor's Narcotics Task Force, along with Patrolman Brian Townsend of the Asbury Park Police Department, were on patrol in the City of Asbury Park. The officers were in an unmarked police vehicle equipped with concealed emergency lights, and were wearing black police vests printed with the word "POLICE" in large white letters on the front and back. They also had police badges hanging from their necks. Scully was driving, Clark was in the front passenger seat, and Townsend was in the back seat.

Shortly after 9:00 p.m., the officers drove to the 900 block of Bond Avenue, an area known as a "high narcotics area." On Bond Avenue, they observed a red Toyota automobile parked in the middle of the street. Two people were in the automobile, a driver and a front-seat passenger, later identified as co-defendant and defendant, respectively. A male was standing in the street at the passenger's side door of the automobile, leaning into the automobile through the passenger's window and conversing with defendant. None of the officers observed the unidentified male hand anything to either defendant or co-defendant, nor did the officers see anyone inside the automobile hand anything to the unidentified male.

As the officers pulled up behind the Toyota, the unidentified male moved away from the automobile. Townsend could not state what was in the unidentified male's hands, but he testified that from his position in the police vehicle, it appeared that the male was counting what "looked like U.S. currency." Although Townsend identified a known narcotics dealer in the immediate area, he had never seen the unidentified male before. Based on his observations, Townsend believed he had just witnessed a narcotics transaction between the unidentified male and defendant.

Scully stopped the police vehicle, and Townsend got out to speak with the unidentified male. After Townsend approached the man, shined his flashlight on him, and identified himself as a police officer, the man fled. Townsend initially chased the man, but stopped after a short distance when the suspect jumped over two fences running from the scene. In the interim, the Toyota pulled away from the police car. Townsend reentered the police vehicle, and the officers drove toward First Avenue where they observed the red Toyota stopped at a traffic light. Although none of the officers observed the Toyota violate any traffic laws, Scully pulled up next to the automobile and proceeded to conduct an investigatory motor vehicle stop by activating his emergency lights.

The officers got out of their vehicle and approached the Toyota. Townsend approached the rear passenger side, illuminated the car's interior with his flashlight, and identified himself as a police officer. Upon asking defendant for identification, Townsend observed defendant's "right hand clenched and [that there were] white particles of a white[-]like substance on his pants." Townsend asked defendant to unclench his right hand, at which point defendant passed something from his right hand to his left hand, clenched the left hand, and then opened his right hand showing Townsend that it was empty. Townsend then asked defendant to exit the motor vehicle. As defendant opened the door, he placed his left hand between his legs and dropped an item onto his seat. Believing that the item was rock cocaine, Townsend retrieved it from the automobile. A subsequent test of the substance proved positive for cocaine.

Defendant was arrested and transported to the Asbury Park police headquarters, whereupon arrival, Scully directed Townsend to book defendant and begin the arrest reports. Although arrested, defendant was never informed of his Miranda rights, either at the time of his arrest, or at anytime while in custody at the police station.

While waiting to be processed, defendant asked Scully if he was "in charge," and Scully responded "yes." Defendant proceeded to ask Scully "if there was anything we could do about this . . . before it went any further"; that he "had a problem"; "that he was a doctor"; and he was "worried about his [medical] license." Scully told defendant that he had five children and would not want a doctor who smoked crack to treat his children. Scully did not record defendant's statements, did not tell anybody about the statements, and did not put the statements in the arrest report or incident report. Scully denied that he said anything to defendant before being asked by defendant if he was in charge.

II.

In Point I, defendant argues that the trial court erred in denying the motion to suppress evidence. Defendant contends that "[t]he trial court's conclusion that the police had 'reasonable suspicion of criminal activity' to stop the motor vehicle was clearly erroneous and not based upon the testimony introduced at the suppression hearing." We disagree.

An appellate court's scope of review of a trial court's factual determination is limited. We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

The Fourth Amendment to the United States Constitution and Art. 1, par. 7 of the New Jersey Constitution prohibit law enforcement officers from conducting unreasonable searches and seizures. State v. Williams, 192 N.J. 1, 9 (2007). Under those constitutional provisions, an investigatory stop is valid "'if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). A determination of reasonable suspicion is fact sensitive and the totality of the circumstances facing the officer at the time of the encounter must be considered in evaluating whether an officer had a reasonable suspicion to conduct a brief investigatory stop. Pineiro, supra, 181 N.J. at 22. An officer's experience and knowledge are factors courts consider in applying the totality of the circumstances test. Ibid. A seizure, however, cannot be justified solely on the basis of a police officer's hunch. State v. Elders, 192 N.J. 224, 247 (2007).

Mere presence in an area known for its high narcotics trafficking activity does not support a finding of reasonable suspicion. State v. Williams, 381 N.J. Super. 572, 583-584 (App. Div. 2005), rev'd on other grounds, 192 N.J. 1 (2007). Likewise, flight alone will not give rise to reasonable suspicion. Pineiro, supra, 181 N.J. at 26. However, reasonable suspicion may be derived from a combination of factors, each of which taken in isolation may be consistent with completely innocent behavior. State v. Stovall, 170 N.J. 346, 368 (2002); see also State v. Arthur, 149 N.J. 1, 12 (1997) (holding the aggregation of several "innocent" facts, when viewed by an experienced police officer, constituted reasonable suspicion justifying an investigatory stop of the defendant's vehicle). In Arthur, a police officer was engaged in a covert surveillance in an area known for heavy narcotics activity. Id. at 3. The officer observed the defendant park his car on the street; a woman entered the car on the passenger side, sitting next to the defendant and engaging him in conversation for a short time; she then exited the vehicle using "furtive movements" and tried to conceal a paper bag, which she did not possess at the time she entered the car. Id. at 10. The officer knew paper bags were often used to transport drugs. Ibid. Based on his observations, the officer concluded the defendant had just engaged in illegal drug activity. Ibid.

Following the defendant's arrest, he was charged with third-degree possession of cocaine. Id. at 6. Defendant moved to suppress evidence, asserting that the police had no legal basis for stopping his motor vehicle. Ibid. Based on the cumulative facts previously expressed, the trial court denied the motion. Ibid.

On appeal, we reversed the denial of the motion to suppress evidence, determining that the officer did not actually observe a "transaction," and that "[n]othing was known about these individuals other than the fact that their conversation was taking place in a high crime area known for drug trafficking." State v. Arthur, 287 N.J. Super. 147, 153 (App. Div. 1996), rev'd, 149 N.J. 1 (1997). We further noted that "[p]urely innocent connotations may be ascribed to the observed conduct." Ibid.

On certification granted, the Supreme Court reversed this court's determination, holding that in light of the officer's experience, his observations gave rise to a reasonable and articulable suspicion that the defendant was engaged in illegal narcotics activity, and, thus, the stop of his vehicle was justified. Arthur, supra, 149 N.J. at 12. In so doing, the Court concluded that this court had "failed to ascribe sufficient weight to the officer's knowledge and experience and to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." Id. at 10-11. Moreover, the Court held that although "[p]olice officers should consider whether a defendant's actions are more consistent with innocence than guilt," just because a defendant's actions might have some "speculative innocent explanation[,] does not mean [those actions] cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt." Id. at 11.

Here, the investigatory stop of the vehicle was based on more than the officers' hunch or a "sixth sense." State v. Costa, 327 N.J. Super. 22, 29 (App. Div. 1999) (concluding that a police officer's non-specific "sixth sense" hunch, does not equate with "reasonable suspicion that criminal activity is afoot") (quoting State v. Branch, 301 N.J. Super. 307, 318 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998)). Townsend's testimony at the suppression hearing provides specific and articulable facts which, when taken together with rational inferences, give rise to a reasonable suspicion that defendant was engaged in an illegal drug transaction immediately before the stop. The facts here are analogous to Arthur, supra, where the Court held that a surveilling police officer need not actually observe the "transaction." 149 N.J. at 10-11. Rather, the cumulation of several otherwise apparent innocent facts can support reasonable suspicion to justify an investigatory stop. Id. at 11-12.

The encounter between defendant and the unidentified male who fled from Townsend, although having some innocent connotations, provided sufficient reasonable suspicion in light of the officer's knowledge and six years of experience as a patrolman, and the totality of all the circumstances present. The area was known for drug trafficking; a known narcotics dealer was identified in the immediate area; the individual who had been leaning in the window conversing with defendant appeared to be counting money as he walked away from the vehicle; and, the individual fled the scene when approached by Townsend. Although Townsend could not testify with certainty that the individual was holding money, he observed the individual's "hand motions [that] looked like he was counting" what Townsend "believed" to be "U.S. Currency." Trial Judge Mellaci found the officer's testimony to be "highly credible," and, based on a cumulation of the facts surrounding the encounter between defendant and the unidentified male, determined that the police had reasonable suspicions that an illegal drug transaction had taken place, justifying the stop of the Toyota automobile. We agree. Accordingly, we affirm the denial of defendant's motion to suppress evidence substantially for the reasons expressed by Judge Mellaci in his cogent oral decision of August 18, 2004.

III.

In Point II, defendant argues that the trial court erred in denying his motion to suppress statements that he made to the police while in custody following his arrest. Defendant contends that the police did not inform him of his Miranda rights and that the statement "that he has a drug problem" was made during a conversation with Detective-Sergeant Scully "that was the functional equivalent of [an] interrogation." We find the argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

In Miranda, the United States Supreme Court determined that custodial interrogation by law enforcement officers is inherently coercive and thus triggers the Fifth Amendment right against self-incrimination. Supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706, Law enforcement officers are required to give Miranda warnings and to secure a waiver of Miranda rights when they seek to conduct a custodial interrogation of a suspect. However, if statements made by the police to a defendant while in custody do not constitute an "interrogation," then Miranda does not apply. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689- 90 L. Ed. 2d 297, 308 (1980). In Innis, the Supreme Court explained:

[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

[Id. at 300-01, 100 S. Ct. at 1689-90, 65 L. Ed. 2d at 307-08.]

The Supreme Court emphasized, "the police surely cannot be held accountable for the unforeseeable results of their words or actions." Id. at 301-02; 100 S. Ct. at 1690; 64 L. Ed. 2d at 308. New Jersey courts follow the Innis standard in determining whether police conduct constitutes an interrogation. See State v. Cryan, 363 N.J. Super. 442, 454 (App. Div. 2003) (determining that unsolicited statements made by a defendant while in police custody and without the benefit of Miranda warnings were properly admitted into evidence because they were not the product of police interrogation or its functional equivalent); State v. Mallozzi, 246 N.J. Super. 509, 516 (App. Div.) (determining that unexpected incriminating statements made by a defendant while in custody in response to non-investigative questions by the police without prior Miranda warnings were admissible), certif. denied, 126 N.J. 331 (1991).

Here, Scully's response to defendant's inquiry as to whether Scully was in charge and whether there was "anything we could do about this" did not constitute purposeful enticement or encouragement designed to elicit an incriminating response from defendant. Scully simply and briefly responded to defendant's unsolicited inquiries made during the booking process by stating that he was in charge and there was nothing that could be done for him. Such unsolicited and non-investigative comments by the police do not constitute "interrogation" because an incriminating response to such comments is not reasonably foreseeable.

Defendant also argues that Scully enticed or led him into making the statement that he had a drug problem, having only made it in response to Scully's "insult" of not wanting a crack-smoking doctor treating any of his children. Defendant asserts that Scully should have known that his statement would likely illicit an incriminating response, and therefore, was the functional equivalent of interrogation. We reject this argument for several reasons.

First, our reading of the transcript of the Miranda hearing discloses that Scully's statement to defendant that he would not want him treating his children was the last statement made during the colloquy between Scully and defendant and therefore no response was provided by defendant.

Prosecutor: And what happened next?

Detective Scully: Well, I was waiting, I was checking on Townsend's progress on finishing with this. I was basically just sitting there waiting for him. Mr. Soriano asked me if I was in charge and I said I was. And he asked me if there was anything we could do about this, you know, before it went any further because Townsend was just starting the complaints. And I told him there wasn't.

And he explained to me that he had a problem. That he was a doctor. His license was in jeopardy. And he was kind of pleading with me, you know, can we try to do something about this because of the fact that he was a doctor he was worried about his license.

And at one point I remember saying to him, you know, well, you're smoking crack, as a doctor. I have five children and I wouldn't want you treating my children. And that's kind of how I left it with him. That was my final answer.

Second, even if defendant's statement that he had a drug problem was made in response to Scully's statement, we are satisfied that it is not foreseeable that defendant would have responded with such an incriminating statement.

In denying defendant's motion to suppress his statements, Judge Mellaci found Detective Scully's testimony concerning the facts surrounding defendant's statements were credible, and determined that "[t]he statements allegedly attributed to [defendant] in my estimation are volunteered statement[s, a]nd volunteered statements are admissible even if the defendant was in custody when the statement was made and no Miranda warnings had been given . . . ." The judge reasoned:

Moreover, unexpected incriminating statements made by an in[-]custody defendant in response to non-investigative questions by the police without prior Miranda warnings are admissible . . . .

The protections of Miranda do not attach upon mere custody, but upon custodial interrogation. There was no custodial interrogation in this case.

To sum up, I find that the warnings were not given here. I find also that Miranda does not apply because this was not an interrogation, although it was a custodial situation. I further find that the statements were voluntarily made and were not the subject of any implied or direct questioning by Scully. He was responding to voluntary statements made by [defendant].

We agree. Accordingly, we affirm the denial of defendant's motion to suppress his statements for the reasons expressed by Judge Mellaci in his oral decision of January 4, 2005.

IV.

Defendant argues next that the trial court erred in admitting Townsend's and Scully's opinion testimony. Defendant contends that Townsend and Scully improperly provided expert opinion "that the common practice of drug dealers in Asbury Park is not to package crack cocaine for sale, but to carry a large chunk and break off a piece to sell to the buyer." Defendant asserts that both witnesses were permitted to testify as experts without first qualifying under N.J.R.E. 702.

Because there was no objection to the testimony during trial, we review the matter under the plain error standard. R. 1:7-2; R. 2:10-2. Appellate courts will disregard an unpreserved error unless it is "clearly capable of producing an unjust result." State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2); State v. Bakka, 176 N.J. 533, 547-48 (2003). "In other words, the error must be 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" Daniels, supra, 182 N.J. at 95 (quoting State v. Macon, 57 N.J. 325, 336 (1971)) (alteration in original).

Although we agree the testimony would have been better left unsaid, determining that it was not relevant to the sole charge of possession of cocaine, we conclude the officers' testimonies harmless. Defendant was not charged with possession with intent to distribute, only with possession. There is overwhelming evidence in the record based on Townsend's testimony that defendant was in possession of CDS at the time of the investigatory stop.

Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Although the trial judge denied defendant's motion seeking to suppress his statements, the judge ruled that the State could not introduce Scully's statement that he would not want a doctor who smoked crack treating his own children, determining that the statement was prejudicial to defendant.

(continued)

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A-6333-04T4

October 29, 2008