STATE OF NEW JERSEY v. DONALD BRYANT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4613-06T44613-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD BRYANT,

Defendant-Appellant.

_______________________________

 

Submitted: October 16, 2008 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment Nos. 04-07-1113 and 05-05-0745.

Yvonne Smith Segars, Public Defender, attor ney for appellant (John A. Albright, Desig nated Counsel, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecu tor, attorney for respondent (Gina Giordano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Donald Bryant appeals from two judgments of con viction and orders for commitment, one under Indictment No. 05-05-0745 following a jury trial adjudicating him guilty of possessing a controlled dangerous substance (CDS) with intent to distribute within a thousand feet of a school (school-zone offense) on March 16, 2005, contrary to the provisions of N.J.S.A. 2C:35-7, a third-degree crime; possession of CDS with intent to distribute, contrary to the provisions of N.J.S.A. 2C:35-5(a)(1) and (b)(3), a third-degree crime; and possession of CDS contrary to the provisions of N.J.S.A. 2C:35-10(a)(1) and (a)(2), a third-degree crime. The second appealed judgment and order was entered on defendant's negotiated guilty plea under Indictment No. 04-07-1113, a ten-count indictment, to another third-degree school-zone offense that occurred on March 4, 2004.

The judge granted the State's motion for a mandatory extended-term sentence under N.J.S.A. 2C:43-6(f) with respect to the 2005 indictment because defendant had previously been found guilty of a school-zone offense. He sentenced defendant to a ten-year term of imprisonment, five years without parole, on the 2005 school-zone offense and merged the convictions for posses sion of CDS with intent to distribute and possession of CDS with the school-zone conviction for sentencing purposes. With respect to the 2004 indictment, the judge sentenced defendant in accordance with the State's recommendation of a four-year term of imprisonment with a two-year parole disqualifier to run concurrent to the sentence imposed on the 2005 charges.

The relevant facts begin with defendant's failure to appear before a Superior Court judge on October 18, 2004, and pay certain fines because he was in custody on another matter from October 5 through November 14, 2004. Defendant did not notify the court that he would not be able to appear on October 18, 2004, and the judge before whom he was to appear that day issued a bench warrant on November 4, 2004. The judge's staff appar ently did not make inquiry respecting defendant's custody status before the bench warrant was issued and defendant, thereafter, did not make an attempt to contact either his public defender or the judge to explain his absence on October 18.

The warrant remained outstanding until March 16, 2005, when Officer Nicola Flora of the Jersey City Police Department was assigned to a narcotics task force consisting of agents from the United States Marshals Service and the Federal Bureau of Inves tigation as well as personnel from the Union County Prosecutor's Office. The task force had been assembled to execute out standing warrants, including the warrant for defendant's arrest, which they confirmed was still open and outstanding before they attempted to arrest defendant. A group of about six officers and agents, including Flora, went to 190 Rose Avenue, Jersey City, to execute the warrant issued for defendant's arrest.

Defendant shared a bedroom with Iownna Shivers in the apart ment occupied by them with their two children and Shivers' sister, Yashika West, with her three children. When the offi cers knocked on the door to execute the arrest warrant, a U.S. Marshal showed the warrant to Shivers and she admitted the offi cers to the apartment, advising them that defendant was in their bedroom. Defendant was quickly apprehended, handcuffed, and held in the outside hallway. Agent William Cannon asked Shivers for consent to search the apartment, explaining defen dant was known to carry a gun and, because there were children present in the apartment, any gun should be removed. Shivers verbally agreed to the search and then signed a consent-to-search form after it had been explained to her and she reviewed it.

In conducting the search, the officers noted that the pos sessions in the bedroom shared by defendant and Shivers were female on one side of the bedroom and male on the other side. In a three-draw storage bin containing men's underwear and other men's clothing on the male side of the bedroom, the officers found ninety-three vials of cocaine with $100 in cash. No gun was located in the apartment. The officers informed Shivers of the items being seized and defendant was charged with three possession-of-narcotics offenses.

Before trial, defendant moved to suppress the evidence seized on March 16, 2005. After Officer Flora testified at the hearing on the motion, defendant called Shivers, who testified that the officers pulled her into the hallway when she unlocked the door. Her version of the events of March 16 differed in some essential respects from Flora's version, including the room from which the drugs were seized and the procurement of her con sent to the search. She testified that, other than a bed, there was no other furniture in her and defendant's shared bedroom. As to the written consent, Shivers claimed that she only signed a typed piece of paper without any hand written information and did not verbally consent to the search at all. Defendant also called West, who testified that she was brought out of the apartment and kept in the hallway while the apartment was searched. Like Shivers, she claimed that there was no furniture in defendant's bedroom other than the bed, although there was a three-drawer storage bin in her bedroom, which she shared with her children.

At the conclusion of the testimony, defendant argued that his witnesses were more credible than Flora and their version of the events of March 16 should be adopted by the judge; Shivers was under duress when she consented to the search, rendering it invalid; the warrant for defendant's arrest was itself invalid; and the officers lacked probable cause to enter the apartment. The State responded that both of defendant's witnesses lacked credibility; Shivers' consent to the search was knowing and vol untary; the warrant was valid; the officers were acting in good faith; and the arrest on the open warrant was proper.

The judge concluded that the warrant was valid at the time of the arrest, which consequently did not violate the law. He found that defendant's witnesses were not credible, explaining his reasons for his conclusion, and he rejected Shiver's testi mony that she signed a blank consent form as highly unbeliev able. He concluded that Flora, on the other hand, was credible and that his testimony was corroborated by West with respect to the officers' concern about the possible presence of a gun in the apartment. The judge also observed that he found it "highly unbelievable" that multiple federal, state, county, and munici pal officers would violate the constitutional rights of defen dant and his witnesses by "conducting an illegal search without a search warrant or consent to search." He then denied the motion to suppress.

Flora also testified at the jury trial on July 12, 2006, in a manner consistent with his testimony at the suppression hear ing. Additionally, he testified that before defendant's arrest, he saw him looking out of the bedroom he shared with Shivers and, after defendant was arrested and the search completed, he was permitted to return to the apartment to get dressed. Defendant went into the bedroom where the drugs had been found and gathered his clothing. Flora testified that this behavior cor roborated the other evidence that led the officers to charge defendant, rather than Shivers or West, with possession of the cocaine, including the fact that the drugs were in a three-drawer bin containing men's underwear and other items of men's clothing.

Detective Christopher Robateau from the Jersey City Police Department also testified at trial and was qualified as an expert in narcotics and related activities. He opined that the packaging of the narcotics and the small denominations of the paper money were consistent with drug distribution by a dealer. The parties then stipulated to the results of testing by the State Police Laboratory and the State rested.

Defendant sought a judgment of acquittal on the ground that Flora "presented no credible evidence for this Court that [defendant] was anywhere in relation to the narcotics in this case." The judge denied this motion on the following grounds:

Based upon the testimony that this jury has heard, with two occupants of a room[, t]here was male clothing on one side, female clothing on the other. The male who went back into the room, got the remainder of his clothes to get dressed from a section in the room where the male clothing was found and present.

Also, I think that the court can take into consideration testimony of Sergeant Flora when he said that the female occupant of the premises was shocked to find the drugs and she's the one that gave the con sent to search[. . .;] that plus the fact that this defendant was the only male in the premises; the fact that the [drugs] had [been] found in a drawer with nothing but male clothing, giving all of the inferences to the State, clearly establishes that the predominant person with nexus to the drugs was the defendant in this case and therefore I'm denying the motion.

Defendant then called his mother, Kathryn McKenzie, as a wit ness. She testified to the layout of defendant's apartment and the contents of the rooms, which was inconsistent with the testimony of Flora. On July 13, 2006, the jury returned its verdict finding defendant guilty on all three counts.

At sentencing on December 8, 2006, the presentence report on the 2005 offenses was corrected to reflect 633 days of jail credits and the report on the 2004 offenses was corrected to reflect 109 days of jail credits. After hearing argument on the State's motion for an extended term, the judge reviewed defen dant's record, which indicated four prior convictions in 1996 and 1997, including three school-zone offenses and one weapons offense. The judge then granted the State's motion. The judge found three aggravating factors bearing upon the sentences to be imposed, to wit, N.J.S.A. 2C:44-1(a)(3), (6), and (9), but found no mitigating factors. Based on the extent of defendant's prior record, the judge imposed the top of the extended-term range, ten years in New Jersey State Prison, of which five years would be without parole, for the 2005 school-zone offense after merg ing the related 2005 offenses. He also sentenced defendant to four years imprisonment, two without parole, on the 2004 school-zone offense, to run concurrent with the ten-year term. Various fines and penalties were imposed. This appeal followed.

Defendant raises the following issues on appeal:

POINT I - THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE IT RELIED ON A GOOD-FAITH EXCEPTION TO THE EXCLUSIONARY RULE [THAT] HAS BEEN EXPRESSLY REJECTED BY THE NEW JERSEY SUPREME COURT, AND THEREFORE, THE DEFENDANT'S CONVICTION MUST BE REVERSED.

A. There Is No Factual Dispute That The Arrest Warrant For The Defendant Was Issued In Error, Thus The Defendant's Arrest And The Subsequent Search Of The Apartment Violated State Constitutional Guarantees.

B. Any Purported Consent To Search The Apartment Is Tainted Fruit Of The Poisonous Tree.

POINT II - THE DEFENSE MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE THE STATE FAILED TO MAKE OUT A PRIMA FACIE CASE OF POSSESSION OF THE DRUGS BY THE DEFENDANT.

POINT III - THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE BECAUSE THE TRIAL COURT FAILED TO ARTICULATE ITS FINDINGS ON THE RECORD AND APPARENTLY DOUBLE-COUNTED THE DEFENDANT'S PRIOR DISTRIBUTION CONVICTION AS BOTH AN AGGRAVATING FACTOR AND AS A BASIS FOR AN EXTENDED TERM.

With respect to the suppression of the CDS evidence, defen dant urges that the arrest warrant was issued in error and was, thus, invalid. He argues that, in denying his motion to sup press, the judge erroneously relied on the federal good-faith exception to the "exclusionary rule," because our Supreme Court rejected such an exception under our State Constitution in State v. Novembrino, 105 N.J. 95, 159 (1987). He contends that the fruits of the search conducted at the time of his arrest should have been suppressed because the arrest warrant was not valid. Finally, he asserts that the consent to search is tainted fruit of the poisonous tree because the discovery of the drugs was not attenuated from the invalid arrest.

The validity of the arrest warrant is pivotal to defen dant's argument. On this issue, he relies exclusively on our opinion in State v. Moore, 260 N.J. Super. 12, 17 (App. Div. 1992). There, the Plainfield Municipal Judge on May 22, 1989, issued a bench warrant for the defendant's failure to appear and enter a plea to a charge of issuing a bad check, setting $250 as bail on the warrant. Id. at 14. The following day the warrant was faxed as a detainer to the Somerset County Jail, where defendant was being held on unrelated charges from Watchung. Ibid. On October 10, 1989, while defendant was still in jail, her family posted the $250 bail with the Plainfield Municipal Court, which then sent a bail receipt to the jail. Ibid. As a result, the jail released defendant on October 13, 1989, "effec tively lifting the bench warrant detainer." Ibid. On October 25, 1989, defendant pled guilty to the bad-check charge and "[t]he bench warrant then was marked: 'recalled, summons returned' by Plainfield court personnel." Ibid. Nevertheless, the Plainfield Police Department executed the warrant the fol lowing month and a search incident to the arrest found defendant in possession of two vials of cocaine. Id. at 15.

On the State's appeal from an order of suppression, we observed that "considerable murky testimony" had been devoted at the suppression hearing to identifying the persons responsible for the error, but found this effort futile. Id. at 15-16. Instead, we noted, "[t]he inescapable consequence, after the finger-pointing is over, is that defendant was arrested ille gally." Id. at 16. We rejected the State's arguments that the police acted properly as "no more than a plea for a 'good faith' exception to the exclusionary rule," which our Supreme Court had rejected in Novembrino, supra, 105 N.J. at 157-58. Moore, supra, 260 N.J. Super. at 16. In doing so, we refused to consider the mistaken-arrest situation before us as being distinguishable from the bad search warrant issued in Novembrino. Id. at 17.

Defendant's reliance on Moore is misplaced. As the State points out, even had the judge or his staff discovered on Octo ber 18, 2004, that defendant was in custody, the bench warrant could still have been issued and lodged as a detainer against the defendant's release from wherever he was in custody. The fact that the opportunity to detain defendant was lost does not vitiate the initial validity of the warrant. Defendant failed to appear and, unlike Moore, did not subsequently rectify that failure prior to his arrest by contacting his public defender or the court. Rather, he remained at large for four months while engaging in further criminal activity. We find no error in the judge's decision to deny the suppression motion.

Defendant next contends that the trial court erred in deny ing his motion for a judgment of acquittal at the close of the State's case. He argues that the State failed to prove a prima facie case of possession of the cocaine because there were two other adults in the apartment at the time of the search, either of whom could also have possessed it. He also points out that no evidence established that he was an occupant rather than an overnight guest at his girlfriend's apartment, his fingerprints were not found on the vials of cocaine or the bag in which they were found, and the cocaine was not found on his person.

In reviewing the denial of a motion for acquittal, we apply the same standard that governs the trial judge. State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Kit trell, 145 N.J. 112, 130 (1996); State v. Perez, 349 N.J. Super. 145, 151 (App. Div. 2002), rev'd on other grounds, 177 N.J. 540 (2003). In deciding a motion for acquittal made at the close of the State's evidence pursuant to Rule 3:18-1, the trial judge must determine whether the State's evidence, viewed in its entirety and giving the State the benefit of all favorable inferences, could permit a jury to find the defendant guilty beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967); see also State v. Wilder, 193 N.J. 398, 406 (2008) (Reyes "enunciated the present, well-established standard for determining the sufficiency of the evidence against an accused on a Rule 3:18-1 motion for acquittal"). "In assessing the sufficiency of the evidence, the relevant inquiry is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Martin, 119 N.J. 2, 8 (1990) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). "[T]he trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)).

Here, Shivers told the police that defendant shared the bed room with her and the evidence demonstrated that their two children lived in the apartment with them. The officers observed that the shared bedroom had female possessions on one side of the room and male possessions on the other side. The drugs were located in a drawer in a storage bin in the shared bedroom that contained only a man's clothing. Defendant returned to that shared bedroom to get dressed after the apart ment was searched. West and her children used the second bed room in the apartment. Finally, Shivers expressed shock and annoyance over the presence of drugs in the apartment. This evidence established each and every element of proof required to prove possession of CDS. See State v. Brown, 80 N.J. 587, 594-98 (1979). Defendant had "the 'capacity' to maintain control of and the 'ability to affect' the [drugs] during a span of time." State v. Schmidt, 110 N.J. 258, 271 (1988). The evidence, giv ing the State all favorable inferences, was more than sufficient to permit a reasonable jury to find that defendant was an occu pant rather than a mere "overnight guest," unlike the evidence in State v. Jackson, 326 N.J. Super. 276, 279-80 (App. Div. 1999). Accordingly, we find no error in the denial of the motion for acquittal at the close of the State's case.

Last, defendant contends that his ten-year sentence was man ifestly excessive because the judge failed to articulate his fact findings and apparently counted defendant's prior convic tions twice as both an aggravating factor and as a basis for an extended term. We find these issues without merit.

N.J.S.A. 2C:43-6(f) provides:

A person convicted . . . of . . . pos sessing with intent to distribute on or near school property . . . , who has been previ ously convicted of . . . possessing with intent to distribute a controlled dangerous substance . . . , shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by [N.J.S.A. 2C:43-7(c)], notwithstanding that extended terms are ordinarily discretionary with the court. The term of imprisonment shall . . . include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court . . . during which the defendant shall be ineligible for parole.

Here, the judge reviewed the defendant's undisputed criminal record, which revealed that he had three prior school-zone con victions, and concluded that extended-term sentencing was man dated. In this respect, only one such conviction is required to trigger mandatory extended-term sentencing under N.J.S.A. 2C:43-6(f) and the presence of additional school-zone convictions has no bearing on the statutory requirement.

The judge found that aggravating factor (6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1(a), was present, which finds evidential support from defen dant's two other school-zone convictions and the undisputed weapons conviction. We find no impermissible double counting of prior convictions here as was present in State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005). There, defendant had only one prior conviction, which was used to support the mandatory extended term and the aggravating factor (6). Ibid.

Defendant's prior record, excluding one of the school-zone convictions, also supports the judge's findings respecting aggravating factors (3), "[t]he risk that the defendant will commit another offense," and (9), "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a). Thus, the judge's findings with respect to all three aggravating factors were "grounded in competent, reasonably credible evidence" in the record. State v. Roth, 95 N.J. 334, 365-66 (1984). Indeed, the evidence was undisputed.

As to the alleged excessiveness of the ten-year term, sen tencing is committed to the sound discretion of the trial judge. State v. Nelson, 173 N.J. 417, 470 (2002). We should exercise our power of review sparingly. State v. Kirk, 145 N.J. 159, 175 (1996). We may modify a sentence only if the sentenc ing court was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990). The test is whether no reasonable sentencing judge could have imposed the sentence under review based on the evi dence before the court. State v. Ghertier, 114 N.J. 383, 388 (1989); State v. Munoz, 340 N.J. Super. 204, 222 (App. Div.), certif. denied, 169 N.J. 610 (2001).

Applying this standard to our review of the sentence imposed here, we cannot say that no reasonable sentencing judge could have given defendant a ten-year term. Defendant was eighteen years old at the time of his first indictable offense and twenty-seven at the time of his last. On April 1, 1996, he was found guilty of his first school-zone offense, which occurred on September 2, 1995, a weapons offense, which occurred on December 13, 1995, and a second school-zone offense, which occurred on December 13, 1995, and was sentenced to four years in prison. On May 25, 1999, he was found guilty of his third school-zone offense, which occurred on March 24, 1997, and was sentenced to five years in prison with two years of parole ineligibility. The next two offenses, which are the subject of this appeal, occurred on March 4, 2004, and March 16, 2005. He had served two prison sentences, one for a maximum of four years and the other for a maximum of five years. These did little to deter his criminal conduct. Indeed, the last offense was com mitted after defendant had been arrested for the March 4, 2004, and was awaiting trial. Based on this evidence, we cannot say that a ten-year term was an abuse of discretion.

Affirmed.

 

The record does not disclose whether the warrant was issued pursuant to Rules 1:10-2, 3:3-1, or 3:26-6, nor does it disclose the matter on which defendant was to appear on October 18, 2004.

The "exclusionary rule" precludes the introduction of evidence obtained in violation of federal and state constitutional protections against unreasonable searches and seizures. Mapp v. Ohio, 367 U.S. 643, 648, 81 S. Ct. 1684, 1687-88, 6 L. Ed. 2d 1081, 1086 (1961) (citing Weeks v. United States, 232 U.S. 383, 393, 34 S. Ct. 341, 344, 58 L. Ed. 652, 657 (1914)).

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A-4613-06T4

January 6, 2009