STATE OF NEW JERSEY v. CURTIS O. HARRELL, Jr

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2967-06T42967-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CURTIS O. HARRELL, Jr.,

Defendant-Appellant.

_______________________________

 

Submitted January 5, 2009 - Decided

Before Judges R. B. Coleman, Sabatino and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-03-0197.

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

Anne Milgram, Attorney General, attorney for respondent (Robert E. Bonpietro, Deputy Attorney General, of counsel and on the brief; Natalie A. Schmid Drummond, Deputy Attorney General, on the brief).

PER CURIAM

A grand jury indicted defendant for first-degree possession of a controlled dangerous substance (CDS), heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count one); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2a (count four); and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1.

Following the denial of defendant's motion to suppress, he was tried by a jury and convicted on counts one through four and on the lesser offense on count five of disorderly persons obstructing the administration of law. At sentencing, the trial judge granted the State's motion for a mandatory extended-term sentence and imposed a fifteen-year term of imprisonment with a five-year period of parole ineligibility on count one and a concurrent five-year term of imprisonment with a three-year period of parole ineligibility on count two. The judge merged counts four and five into count three and imposed a concurrent five-year term of imprisonment with a two-and-one-half-year period of parole ineligibility. The judge also imposed the appropriate penalties and assessment and suspended defendant's driver's license for two years.

On appeal, defendant raises the following contentions:

Point 1

The trial court erred in denying defendant's motion to suppress.

A. Under at least our state constitution, defendant was "seized" once Officers Regan and Reiner began pursuing and approaching him on foot from two different directions and Reiner appeared in defendant's path.

B. Since defendant was "seized" before he tossed the narcotics on the ground, the police actions in pursuing defendant before this time had to be justified by reasonable suspicion of criminal activity. They were not.

C. "Abandonment" cannot support admission of the discarded narcotics because defendant discarded them in response to the unlawful police pursuit.

D. Reversal and suppression furthers the protections afforded under our state constitution.

Point 2

References to defendant's "parole" and to the granting of a "search warrant by the Superior Court" were prejudicial and infringed defendant's right to a fair trial (plain error).

Point 3

Defendant's sentence is excessive.

Except to remand for correction of defendant's sentence to merge the sentencing on counts one and two, we affirm.

The following facts are summarized from the record. At approximately 11:46 p.m. on February 12, 2004, Officers Brian Regan and Mark Reiner, experienced narcotics investigators from the Franklin Township Police Department, were patrolling in uniform in a marked car in a high-crime area known for daily narcotic activity. Prior to their shift, the officers had been advised of a series of purse snatchings in the area.

As the officers entered a well-lit parking lot, they observed a male, later identified as defendant, emerge from a parked Acura. Defendant saw the officers and, according to Reiner, began looking "in all directions, much more than what the average person walking into an apartment complex would do." While walking away, defendant constantly looked back at the officers. Reiner testified that defendant then stepped behind a building and

[peeked] around the corner several times to see if, what we were doing, whether we were standing there, whether we got out of the car. But he continuously had looked around the corner, [peeked] back around so we couldn't see him, and then he [peeked back out again to see if we were still there, and went back to the corner.

Defendant's behavior aroused the officer's suspicion that he was engaged in criminal activity. They decided to investigate further. They drove from the parking lot, continuing to observe defendant peeking around the corner of the building. Regan then parked the patrol car out of defendant's sight. The officers then exited the car and walked back toward the area where they last saw defendant. The officers saw defendant emerge from behind the building and continue walking. Reiner stepped from behind another building and faced defendant. When defendant saw Reiner, he made what Reiner described as an "abrupt" "90-degree" turn, accelerated his pace, and quickly walked away. Unaware that Regan was approaching from behind, defendant walked between a parked van and car, dropped a package to the ground, and briskly walked away. Regan, who had observed this activity, immediately knew that the package contained decks of heroin.

Reiner then told defendant to stop and asked to speak to him. Defendant did not comply and began fumbling inside his jacket pockets. Because of known gun activity in the area, Reiner thought that defendant may have a gun. He became concerned for his safety and ordered defendant several times to take his hands out of his pockets and to keep them where they could be seen. Defendant ignored these commands, threw a set of keys to the ground, and ran.

Defendant then saw Regan approaching him from behind. Regan ordered defendant to stop and to keep his hands where they could be seen. Defendant did not comply and continued running. The officers pursued defendant, ordering him numerous times to stop. Defendant was eventually apprehended after a foot chase. He violently resisted arrest.

Regan immediately returned to the area near the van and recovered the package that defendant had dropped, which contained 500 wax folds of heroin. He also recovered the keys, which belonged to the Acura from which the officers saw defendant emerge. The Acura, which defendant did not own, was transported to police headquarters after a trained police dog reacted to narcotics within the vehicle. A search of the car, conducted pursuant to a search warrant, revealed 1,352 wax folds of heroin, two parking receipts from Robert Wood Johnson Hospital where defendant worked, and two photographs of defendant's son.

Defendant challenged the seizure of the drugs. The trial judge found the seizure lawful because defendant had abandoned the package and had not been seized at that time he dropped it.

In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We "'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We should not change the lower court's findings simply because we "might have reached a different conclusion were [we] the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side[.]" Johnson, supra, 42 N.J. at 162. Rather, we should only modify a trial court's findings if they are so clearly mistaken and "so plainly unwarranted that the interests of justice demand intervention and correction[.]" Ibid. In that instance, "[we] should appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid. Applying these standards, we review defendant's contentions.

Defendant first contends that he was "seized" before he discarded the narcotics when the officers pursued him on foot and when he saw Reiner approaching him. He also contends that the officers' actions were unlawful because they lacked reasonable and articulable suspicion of criminal activity to conduct an investigatory stop. Thus, evidence obtained as a result should have been suppressed. We disagree.

Absent any impermissible reason for questioning a defendant, police officers are permitted to make a field inquiry "'without grounds for suspicion.'" State v. Maryland, 167 N.J. 471, 483 (2001) (quoting State v. Contreras, 326 N.J. Super. 528, 538 (App. Div. 1999)). See also Elders, supra, 192 N.J. at 246. "'[M]ere field interrogation, without more, by a police officer does not involve 'detention' in the constitutional sense so long as the officer does not deny the individual the right to move.' Without detention by the police, the Fourth Amendment is simply not implicated in such cases." Maryland, supra, 167 N.J. at 483 (quoting State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973)).

Here, the officers' conduct never reached the level of a field inquiry, let alone an investigatory stop, before defendant discarded the narcotics. Neither officer had spoken to defendant at that point. Nothing Reiner did could constitute a detention, and defendant was not even aware of Regan's presence. The fact that Reiner, a police officer in uniform, approached defendant does not "convert the encounter into a seizure requiring some level of objective justification." Id. at 483 (quoting Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)).

Also, a "defendant is obligated to submit to an investigatory stop, regardless of its constitutionality." State v. Williams, 192 N.J. 1, 10 (2007). "[A] person has no constitutional right to flee from an investigatory stop 'even though a judge may later determine the stop was unsupported by reasonable and articulable suspicion.'" Id. at 11 (quoting State v. Crawley, 187 N.J. 440, 458, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006)). "Under New Jersey's obstruction statute, when a police officer commands a person to stop, . . . that person has no right to take flight or otherwise obstruct the officer in the performance of his duty." Ibid. (citing Crawley, supra, 187 N.J. at 451, 458-59). Thus, even if defendant's mere sighting of Reiner constituted a seizure, or even if the officers lacked reasonable and articulable suspicion to conduct an investigatory stop, defendant's failure to obey the officers' order to stop negates any constitutional violation.

Further, a defendant has no expectation of privacy in property that he or she has abandoned. State v. Burgos, 185 N.J. Super. 424, 428 (App. Div. 1982). "For purposes of search-and-seizure analysis," a defendant who abandons property "no longer retain[s] a reasonable expectation of privacy with regard to it at the time of the search." State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006) (citations omitted). "In the context of the Fourth Amendment a defendant 'abandons' property when he voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question[.]" State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981) (citing United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973)), certif. denied, 88 N.J. 497 (1981), aff'd o.b., 89 N.J. 378 (1982); see also Carroll, supra, 386 N.J. Super. at 160; State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999).

We are satisfied that there is sufficient evidence in the record indicating that defendant abandoned the narcotics before the search, and thus, relinquished any expectation of privacy in them. See Carroll, supra, 386 N.J. Super. at 160-61 (finding abandonment of defendant's vehicle and the plastic bag left in it where defendant, after crashing the vehicle into a parked vehicle, left the vehicle's doors open and fled); Gibson, supra, 318 N.J. Super. at 5, 11 (finding abandonment of contraband where defendant, after seeing an unmarked police car approaching him, dropped contraband onto a driveway); State v. Hughes, 296 N.J. Super. 291, 296 (App. Div.) (finding abandonment of a container filled with bags of cocaine where defendant, who was riding a bicycle, threw the container against a curb when he noticed police were approaching and continued to bicycle another fifty feet away), certif. denied, 149 N.J. 410 (1997); Farinich, supra, 179 N.J. Super. at 6-7 (finding abandonment of a suitcase where defendant, after being approached by the police in an airport, dropped it and started to flee).

Defendant next contends that he was denied a fair trial by a police officer's reference to the search warrant for the Acura, and by a defense witness' reference that defendant was on parole at the time of the incident. Defense counsel did not object to these references, suggesting that counsel did not perceive any prejudice. State v. Bethea, 243 N.J. Super. 280, 285 (App. Div.), certif. denied, 122 N.J. 401 (1990). Further, the failure to object deprived the trial judge of an opportunity to take appropriate remedial action if necessary, such as giving a curative instruction. State v. Douglas, 204 N.J. Super. 265, 274 (App. Div.), certif. denied, 102 N.J. 378 (1985).

Because defense counsel did not object to these references, we are guided by a plain error standard of review. See R. 1:7-2 and R. 2:10-2. See also State v. Macon, 57 N.J. 325, 337 (1971). Under that standard, we "must disregard any error unless it is 'clearly capable of producing an unjust result.' Reversal of defendant's conviction is required only if there was error 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95 (2004)); State v. Macon, 57 N.J. 325, 333 (1971); R. 2:10-2.

Applying these standards, we discern no error, let alone plain error, caused by either of the references. Contrary to defendant's argument, there is nothing inherently wrongful about a prosecutor either referring to a properly issued search warrant or eliciting trial testimony about it. State v. Marshall, 148 N.J. 89, 239-40, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. McDonough, 337 N.J. Super. 27, 32-33 (App. Div.), certif. denied, 169 N.J. 605 (2001). "[T]he fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly." Marshall, supra, 148 N.J. at 240. Thus, as long as the existence of the warrant does not have the capacity to mislead the jury in the particular context of the case, it is not improper to refer to it. Ibid.

Here, the reference to the search warrant did not imply that the State had presented any incriminating evidence to a Superior Court judge when the police obtained the warrant that it did not also present at trial. Also, the fleeting reference to defendant's parole status did not imply his guilt in this matter. To be sure, the jury heard extensive evidence which would have established probable cause for the search warrant, and there was overwhelming evidence of defendant's guilt in this case.

We now address defendant's sentence. Defendant admits that he is eligible for a mandatory extended-term sentence. He contends that his fifteen-year sentence is not supported by adequate findings below, and that the judge failed to make a qualitative assessment of the aggravating and mitigating factors. We disagree.

We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). When reviewing a judge's sentencing decision, we "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence, and decide whether application of the guidelines make a particular sentence clearly unreasonable that it shocks the judicial conscience. Roth, supra, 95 N.J. at 364-65; O'Donnell, supra, 117 N.J. at 215-16.

Here, the mandatory extended-term sentencing range for count one (first-degree possession of a CDS) is ten to twenty years. The judge sentenced defendant within that range. In imposing the sentence, the judge found aggravating factors N.J.S.A. 2C:44-1a(3) (the risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (the need for deterring defendant and others from violating the law). The judge did not find any mitigating factors.

The record indicates that defendant has two prior New Jersey convictions for distribution of CDS, and one in New York for possession of CDS; he possessed more that 1,800 wax folds of heroin for distribution in a school zone; and he fled the police and violently resisted arrest. We are satisfied that the judge's findings are supported by sufficient evidence in the record and that the fifteen-year sentence is appropriate.

However, based on the applicable statutes and case law, we conclude, and the State agrees, that the judge should have merged count two (third-degree possession of CDS with intent to distribute within 1000 feet of school property) with count one for sentencing. Therefore, we reverse and remand solely so that defendant's conviction on count two can be merged with his conviction on count one.

 
Affirmed in part, reversed in part and remanded for correction of defendant's judgment of conviction consistent with this opinion.

(continued)

(continued)

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A-2967-06T4

April 21, 2009