STATE OF NEW JERSEY v. DAUVON DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0869-07T40869-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAUVON DAVIS,

Defendant-Appellant.

____________________________

 

Submitted March 24, 2009 - Decided

Before Judges Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-06-1187.

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

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On June 6, 2006, a Monmouth County Grand Jury charged defendant Dauvon Davis with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (Count One); second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(2) (Count Two); and third-degree possession of a CDS with intent to distribute within 1,000 of school property, N.J.S.A. 2C:35-7 (Count Three). On September 26, 2006, defendant filed a motion seeking to suppress evidence; the court denied the motion on November 29, 2006. On December 19, 2006, defendant pled guilty to Count Three pursuant to a negotiated plea agreement, in exchange for the State agreeing to dismiss Counts One and Two. Under the plea agreement, the State agreed to recommend an extended-term sentence, pursuant to N.J.S.A. 2C:43-6f, of eight years of imprisonment with a forty-two month period of parole ineligibility, and defendant reserved his right to appeal the denial of his motion to suppress evidence.

On March 30, 2007, the court granted the State's motion for an extended-term sentence, defendant having previously been convicted on two separate occasions of distribution of a CDS and possession of a CDS. After finding aggravating sentencing factors N.J.S.A. 2C:44-1a(3), (6) and (9), and no mitigating factors, the court sentenced defendant in accordance with the plea agreement. The court also imposed all appropriate fines and penalties and dismissed Counts One and Two.

On appeal, defendant argues:

POINT I.

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE [UNITED STATES CONSTITUTION] AND ART. I, PAR. 7 OF THE [NEW JERSEY CONSTITUTION] WAS VIOLATED BY THE ILLEGAL SEARCH AND SEIZURE.

POINT II.

THE SENTENCE IS EXCESSIVE.

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

B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

C. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

We affirm.

In Point I, defendant challenges the trial court's denial of his pre-trial motion to suppress evidence. Defendant contends that the police initially arrested him for trespassing without probable cause, and therefore, the search incident to arrest leading to the seizure of the contraband was invalid. Because of the diversity of facts testified to at the suppression hearing by Patrolman Daniel Kowsaluk of the Asbury Park Police Department on behalf of the State and defendant, we briefly restate their testimony from the transcript of the hearing.

Patrolman Kowsaluk testified that on March 5, 2006, at approximately 11:30 p.m., he conducted surveillance of a "high narcotics area" on Borden Avenue in Asbury Park. During that surveillance, he observed defendant engage in hand-to-hand transactions with two individuals in front of a residence at 215 Borden Avenue. Specifically, on the first occasion, a person handed money to defendant, and defendant handed the individual an item in return. On the second occasion, although he did not see the purchaser hand defendant money, he did observe defendant hand the individual an item, after which the individual walked away.

Because Kowsaluk believed defendant was engaging in hand-to-hand narcotics transactions, he contacted Officer John Sosdian to meet him in front of 215 Borden Avenue. When the two officers arrived at the premises, they observed defendant on the porch with a woman and another man, Tujane Smith. After ascertaining that the woman did not live at the residence and was not visiting anyone there, the police arrested her for trespassing.

The officers advised defendant and Smith that they had witnessed suspected narcotics transactions, and in turn asked them for identification. Because defendant did not have any documentation identifying him as a resident at the premises, Kowsaluk told defendant that he was going to issue him a citation for trespassing, but refrained from doing so after another female "came downstairs and pretty much said that he lived there." The officers then conducted active warrant checks on both defendant and Smith. After the inquiries proved positive as to both men, the officers placed defendant and Smith under arrest and searched them. It was during this search that Kowsaluk found CDS on defendant's person.

On May 23, 2006, Kowsaluk testified before the Grand Jury, stating that he initially arrested defendant for trespassing. On November 29, 2006, the court conducted a hearing on defendant's motion to suppress evidence. At the hearing, Kowsaluk clarified that he initially arrested defendant because of the active arrest warrant. He confirmed that a trespass citation was never issued to defendant, and the only person arrested for trespassing was the woman on the porch.

Contrary to Kowsaluk's testimony, defendant testified that on the evening in question he returned to 215 Borden Avenue at approximately 11:15 p.m., where he and Smith stood in the street next to a car. Although a few people walked by, he never engaged in hand-to-hand transactions with any of them. According to defendant, on the officers' arrival at the premises, they instructed him and Smith "to go up on the porch and sit down." Defendant and Smith complied.

Once on the porch, the officers asked defendant if he lived at the residence. After he answered "yes," the officers asked him for identification. Defendant provided the officers with a driver's license designating his residence in Neptune Township at his mother's home. However, at the time of the incident, he had been living at 215 Borden Avenue for approximately nine months.

Defendant testified that the officers next inquired whether he had weapons, and even though he answered "no," they patted him down. According to defendant, Kowsaluk recovered the CDS during the pat down, arrested him, and only then ran his name for active arrest warrants. Defendant stated the officers told him at the scene that they initially arrested him for trespassing, not because of the active arrest warrant.

Because the trial court determined that Patrolman Kowsaluk's testimony was more credible than that of defendant, the court concluded that defendant's arrest was valid and denied the motion. In so doing, the court reasoned:

So what the [c]ourt has to do is make a determination as to what the truth is, what is the truth. What happened?

I know that the officer testified at the Grand Jury that he arrested both defendants for trespassing. That is inconsistent with what he testified here[,] and it is also inconsistent with what is in his police report.

Submitted to me in the first part of this motion, which is really relevant to this[,] is what the officer's report says. He says I advised the subject I was conducting a narcotic investigation. I asked the female, later identified as McNeil, what she was doing. She did not provide me with an answer. Davis and Smith both stated they did not know the subject[,] and she does not live at 215 [Borden Avenue]. Called Asbury Park dispatcher, requested warrants.

Smith was placed under arrest on an active warrant. Davis was also placed under arrest on active confirmed warrants out of Monmouth County Superior Court.

I am not going to draw any negative conclusions to the fact that there was a warrant for the defendant[,] but I note that the testimony of the officer here in court and his report are consistent [but his] Grand Jury testimony is not consistent [--] doesn't make any sense. Anyway, I find that Mr. Davis' testimony is incredible. It is just not believable.

He says he is standing out on the street talking to another man, doing nothing with anybody. Then two officers come up and say get on the porch and sit down. Then they are going to be arrested for trespassing. Makes no sense to me at all. I don't find that happening.

I think that Mr. Davis tries the patience of the [c]ourt by saying something like that because it is just incredible, not believable.

So I find that the testimony of the officer is the truth. Several ways the [c]ourt makes determination as to credibility, believability of one or both sides of the case.

One [way] has to do [this is to ask] is it logical[?] Is it reasonable[?] Mr. Davis'[s] testimony was illogical and unreasonable. I didn't believe it.

Second, one of the other ways the [c]ourt makes determination as to whether or not somebody has an interest in the outcome of the case, will be more prone to lie when they have an interest in this case. Mr. Davis has a freedom interest as to whether or not he is convicted of a crime or not.

At this stage, this is not a conviction but an issue as to whether or not evidence should be suppressed. He has an interest in the case. Using all the methods of determining credibility, I find that the credibility lies with the State.

Defendant argues that because Patrolman Kowsaluk had previously testified before the Grand Jury that he arrested defendant for trespassing, the court should have disregarded Kowsaluk's testimony that he arrested defendant because of the active arrest warrant. Defendant contends that the police conducted the active warrant search after his arrest and after they found the CDS on his person. Defendant asserts that the "evidence should have been suppressed because the police lacked probable cause to arrest [him] for trespassing." Accepting defendant's argument would violate our standard of review.

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.

We have considered defendant's argument in light of the record and the above legal standard, and affirm substantially for the reasons expressed by Judge Kreizman in his thoughtful oral decision of November 29, 2006. The trial court determined Patrolman Kowsaluk's testimony credible, and defendant's testimony "incredible. It is just not believable." The court concluded, based on the officer's experience and his observations of the hand-to-hand narcotics transactions, "that the officer had a reasonable and articulable suspicion that criminal activity had taken place and that this defendant was involved in that criminal activity." Further, the court accepted Kowsaluk's testimony that after the investigatory stop, he conducted a warrant search that proved positive and properly arrested defendant, leading to the search incident to the arrest. Because the trial court's credibility findings are based on credible evidence in the record, we reject defendant's argument that the court erred in denying his motion to suppress evidence. Ibid.

Defendant argues next that his sentence was excessive. Defendant contends that the imposition of an extended-term sentence was improper and that he should only have been sentenced to a term "of three years and certainly nothing in excess of five years." Defendant asserts that the trial court improperly balanced the aggravating and mitigating sentencing factors and improperly made his own independent findings of fact to enhance the sentence.

When reviewing a sentence, we determine whether the trial court exercised its discretion "based upon findings of fact that are grounded in competent, reasonably credible evidence," and whether the court applied the correct legal principles to those findings. State v. Roth, 95 N.J. 334, 363 (1984). We will only reverse a sentence where the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 364. "The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994); accord State v. Cassady, 198 N.J. 165, 180-81 (2009).

We have considered defendant's arguments challenging his sentence in light of the record and applicable law and are satisfied that none of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

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A-0869-07T4

July 23, 2009