STATE OF NEW JERSEY v. SAMAR SMILEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5091-07T45091-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMAR SMILEY,

Defendant-Appellant.

________________________________________________________________

 

Submitted August 4, 2009 - Decided

Before Judges Lihotz and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-02-0265.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Samar Smiley appeals from his January 26, 2007 conviction, following a trial by jury on third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (count two), for which the judge sentenced him to a five-year term of imprisonment on count one, consecutive to an eighteen-month term of imprisonment on count two. We reject defendant's arguments that the judge wrongly denied his pretrial motions and imposed an excessive sentence. We affirm defendant's conviction, but remand for a correction of the judgment of conviction (JOC).

I.

In the late afternoon of November 25, 2005, the Atlantic City police department received a 9-1-1 call from a distraught woman who alleged that a man named Samar wearing a tan coat had attempted to stab her. She also alleged the man was armed with a handgun. In response to the call, police arrived at the Drexel Avenue Court public housing units, which Officer Michael Ruzzo described as an "area known for criminal activity," where he had made numerous arrests for weapons offenses, drug offenses and fights. Upon his arrival, a female whom Ruzzo identified as "Mrs. Faulkner" ran up to him yelling, "he's trying to leave." While saying that, Faulkner pointed to a man standing in the parking lot wearing a tan coat, whom Ruzzo recognized as defendant Samar Smiley.

As Ruzzo ran toward defendant, Faulkner "ran with [him]," and told Ruzzo that defendant "threw a gun in the car and . . . tried to stab her." Ruzzo patted defendant down, and found neither the gun nor the knife that Faulkner had described. Hearing the victim accuse him of trying to stab her, defendant asserted that it was one of the men in the courtyard who had done so, to which Faulkner continued to insist "no, no, no. It's Samar." Ruzzo directed Officer Howard Mason to peer into defendant's 2000 Buick to see if there was a handgun in the car "because the victim was so adamant" that defendant had hidden a gun inside.

Like Ruzzo, Mason had made numerous weapons and narcotics arrests at Drexel Avenue Court. Mason described the scene that day as "crazy" with "a lot of people upset and screaming." At Ruzzo's direction, Mason looked in the car and saw two "bricks" on the floor of the driver's side wrapped in a magazine or a newspaper. Based upon his experience with illegal narcotics, Mason recognized the "bricks" as five bundles of heroin. Mason testified that his discovery of the CDS in defendant's car was entirely inadvertent because when he peered into defendant's car, he was looking only for the gun Faulkner had described and he had no suspicion that two bricks of heroin would be lying on the floorboard.

Once Mason saw the two bricks on the floor of defendant's vehicle, he reported what he had seen to Ruzzo, who directed a third officer to arrest defendant. Upon hearing that he was about to be arrested, defendant stated, "it was only some bags of weed," and immediately ran. After running fifty feet, defendant collapsed and was taken into custody. After telling defendant that the vehicle was about to be towed, Ruzzo asked defendant whether anyone should be notified, to which defendant responded that even though the vehicle was registered in his girlfriend's name, the car was actually his.

Judge Isman denied defendant's motion to suppress, finding Faulkner's repeated accusations that defendant had hidden a gun in the car, when combined with the unruly crowd in the high crime area of Drexel Avenue Court, created exigent circumstances that justified the warrantless search of defendant's vehicle. The judge also held that the search was justified by the plain view exception to the warrant requirement.

At the Miranda hearing, the judge held defendant's statement that the drugs were only "weed" was not the result of police interrogation and therefore was admissible despite the absence of Miranda warnings. The judge made the same finding concerning defendant's statement that the car was his.

At trial, the State called Ruzzo and Mason, whose testimony mirrored their testimony at the Miranda and suppression hearings. The State also called Officer Dean Dooley, who corroborated Ruzzo's testimony that defendant fled. Dooley also testified that after defendant was arrested, a search of his person yielded more than $1,600 in cash. The State's final witness was Officer Paul Gautier, who testified that the packaging of the heroin in two bricks was consistent with an intent to distribute. The jury found defendant guilty of the two offenses we have described.

On appeal, defendant raises the following claims:

I. THE TRIAL JUDGE ERRED IN FAILING TO GRANT DEFENDANT'S APPLICATION TO SUPPRESS IMPROPERLY RETRIEVED EVIDENCE WHERE THE STATE FAILED TO SHOW EITHER EXIGENT CIRCUMSTANCES OR PROBABLE CAUSE TO SEARCH THE AUTOMOBILE WITHOUT A WARRANT.

A. The trial court erred in denying defendant's motion to suppress where the warrantless search of the automobile was not based on exigent circumstances.

B. The plain view exception did not apply and thus, the search of the automobile was unlawful.

II. THE TRIAL COURT SHOULD HAVE EXCLUDED THE ORAL STATEMENTS BY DEFENDANT WHICH WERE THE PRODUCT OF CUSTODIAL FUNCTIONAL INTERROGATION AND ADDITIONAL IMPERMISSIBLE QUESTIONING, NOT PRECEDED BY MIRANDA WARNINGS.

III. BASED ON A CAREFUL SCRUTINY OF THE TOTALITY OF THE CIRCUMSTANCES, A GUILTY VERDICT ON THE CHARGE OF RESISTING ARREST WAS CLEARLY AGAINST THE WEIGHT OF THE EVIDENCE.

IV. THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.

V. THE TRIAL COURT'S IMPOSITION OF CONSECUTIVE SENTENCES FOR EACH CONVICTION, RESULTED IN AN OVERALL SENTENCE THAT WAS MANIFESTLY EXCESSIVE AND CLEARLY UNREASONABLE.

II.

In Point I, defendant argues the trial judge erred in failing to grant his suppression motion because the State failed to show either exigent circumstances or probable cause to search his vehicle without a warrant. Warrantless searches and seizures are presumptively unreasonable and are therefore invalid unless falling within a recognized exception to the warrant requirement. State v. Pe a-Flores, 198 N.J. 6, 18 (2009). The burden is on the State, as the party seeking to uphold a warrantless search, to demonstrate that such search falls within one of the recognized exceptions. Ibid. The two exceptions the judge relied upon here -- the automobile exception and plain view -- are among the exceptions the Court has recognized. Ibid.

In Pe a-Flores, the Court held that the warrantless search of an automobile "is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impractical to obtain a warrant." Id. at 28. The Court observed that exigency must be determined on a "case-by-case basis" and "[n]o one factor is dispositive; courts must consider the totality of the circumstances." Ibid. However, the analysis remains constant because "the issues of officer safety and the preservation of evidence [are] the fundamental inquiry." Id. at 28-29.

In Pe a-Flores, the Court identified a number of factors that support the existence of exigent circumstances, including:

the location of the [search]; the nature of the neighborhood; the unfolding of the events establishing probable cause; . . . whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

[Id. at 29.]

Here, the testimony presented at the suppression hearing satisfied those factors. In particular, the scene was chaotic with a number of screaming people congregated near the vehicle; the car was located in a high crime neighborhood known for narcotics and weapons arrests; and Faulkner had repeatedly asserted that the vehicle contained a gun. These factors together demonstrate that "the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk." Ibid.

Under those circumstances, we agree with the judge's conclusion that the evidence presented amply demonstrated the existence of exigent circumstances. We reject defendant's contention that because police waited a period of time for the car to be towed, they could have sought and obtained a warrant while waiting. Seeking a telephonic warrant, a procedure approved and recommended in Pe a-Flores, id. at 34-35, would have occupied one of the three officers present at the scene for a considerable period of time, thereby endangering the other two in the highly volatile circumstances that were presented.

We likewise reject defendant's contention that the officers lacked probable cause to believe a gun was located in the vehicle. Defendant points to evidence in the record that police observed no stab wounds on Faulkner, and argues her claims that defendant had attempted to stab her and had stashed a gun in the vehicle were therefore not credible. We disagree. Faulkner merely claimed that defendant had attempted to stab her, and thus the absence of stab wounds or injuries would be of no consequence. Therefore, we agree with Judge Isman's conclusion that exigent circumstances and probable cause justified the warrantless search of the vehicle.

Moreover, we concur in his determination that the plain view exception to the warrant requirement also justified the warrantless search that occurred here. At the time police observed the two bricks of heroin, police were lawfully in the viewing area, their discovery of the CDS was inadvertent, and it was immediately apparent to police that the items on the floor of the vehicle were contraband. No more is required under the plain view exception to the warrant requirement. State v. Bruzzese, 94 N.J. 210, 236-38 (1983). We affirm the denial of defendant's motion to suppress.

III.

Defendant asserts in Point II that the judge erred in refusing to suppress the statements he made at the scene. We agree with Judge Isman's conclusion that defendant's statement -- "it was only weed" -- was an unsolicited and spontaneous remark that was not the product of police questioning. Defendant's statement that he owned the car was in response to a neutral police question about notifying the owner of the vehicle. Under those circumstances, the incriminating statements were not the result of police interrogation and no Miranda warnings were required. State v. Cryan, 363 N.J. Super. 442, 451-54 (App. Div. 2003).

IV.

In Point III, defendant maintains that a guilty verdict on the charge of resisting arrest was against the weight of the evidence and his conviction on that count should consequently be reversed. In particular, defendant asserts that the evidence presented at trial was insufficient to support his conviction under N.J.S.A. 2C:29-2a(3)(a) and (b), which provided that a person is guilty of third-degree resisting arrest if he "[u]ses or threatens to use physical force or violence against the law enforcement officer or another" or "[u]ses any other means to create a substantial risk of causing physical injury to the public servant or another." A person is guilty of fourth-degree resisting arrest "if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2a(2).

Ordinarily, we would not entertain this claim because a defendant is barred from arguing on appeal that the evidence was insufficient unless he has filed a motion for a new trial on that ground in the Law Division. See R. 2:10-1. However, because we conclude that the error complained of can be addressed by a clerical correction to the JOC, we exercise our discretion to entertain this claim.

We agree with the State that the second count of the indictment was inartfully drafted. In particular, while the narrative portion of the indictment properly specified that defendant "did, by flight, purposely prevent or attempt to prevent a law enforcement officer . . . from effecting a lawful arrest," which is a violation of N.J.S.A. 2C:29-2a(2), the indictment in two other places specifies that the conduct in question constitutes a violation of N.J.S.A. 2C:29-2a(3), which is the third-degree form of resisting arrest and requires the use of physical force or violence. Incongruously, the indictment twice mentions N.J.S.A. 2C:29-2a(3), but then specifies that the crime is one of the "fourth-degree," labeling the charge "RESISTING ARREST- FLIGHT." Thus, it is evident that the indictment intended to charge only the resisting arrest by flight form of the offense, and incorrectly refers to the subsection (3) form rather than the intended subsection (2) form.

Unquestionably, the evidence presented at trial was more than sufficient to justify a conviction for fourth-degree resisting arrest by flight. Indeed, at the charge conference defendant agreed that the jury should be charged on N.J.S.A. 2C:29-2a(2), resisting arrest by flight. We thus agree with the State's argument that "in essence, defendant was tried for and found guilty of violating N.J.S.A. 2C:29-2a(2)" even though the indictment refers to N.J.S.A. 2C:29-2a(3). We agree with the State's argument that the JOC should be amended to delete the references to "2C:29-2a(3)" and substitute instead "2C:29-2a(2)." The JOC should also be amended to reflect that the conviction was for a crime of the fourth-degree, rather than the third-degree. Thus, other than this clerical error in the indictment, defendant's argument in Point III lacks merit. We remand for correction of the JOC.

V.

In Points IV and V, defendant maintains that his sentence was excessive for three reasons: each sentence was at the top of the applicable sentencing range; the judge required the two sentences to be served consecutively; and the judge failed to find the existence of mitigating factor ten, defendant is likely to respond affirmatively to probation, N.J.S.A. 2C:44-1b(10). Defendant's arguments lack merit. Suffice it to say, the two crimes were independent of each other, offended different governmental interests and occurred at different times. Under those circumstances, a consecutive sentence was appropriate. State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

Moreover, a five-year sentence for possession of CDS, and an eighteen-month sentence for resisting arrest, do not "shock the judicial conscience," State v. Roth, 95 N.J. 334, 365 (1984), in light of defendant's prior criminal record that includes a conviction for unlawful possession of a weapon and two convictions for drug distribution.

The judge's failure to find mitigating factor ten -- a mitigating factor that was not urged at sentencing and is being raised for the first time on appeal -- was correct. A defendant who has already incurred three indictable convictions is not likely to respond affirmatively to probation. Thus, mitigating factor ten was not "fully supported by the evidence" and the judge was not required to find it. State v. Dalziel, 182 N.J. 494, 504-05 (2005). Defendant's sentencing claims are meritless.

 
The conviction is affirmed; remanded for an amendment of the judgment of conviction.

Ruzzo testified he did not remember Faulkner's first name.

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

Gautier provided other testimony as an expert, which we will not describe because the jury did not find defendant guilty of possession of CDS with intent to distribute.

The sentence imposed on this count was an eighteen-month term of imprisonment, which is the upper end of the sentencing range for a fourth-degree crime.

Mitigating factor ten, N.J.S.A. 2C:44-1b(10), provides that a defendant is "particularly likely to respond affirmatively to probationary treatment[.]"

(continued)

(continued)

13

A-5091-07T4

August 14, 2009