STATE OF NEW JERSEY v. PHILLIP WEBB

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6202-04T46202-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PHILLIP WEBB,

Defendant-Appellant.

________________________________________________________________

 

Submitted April 29, 2009 - Decided

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-03-0466.

Yvonne Smith Segars, Public Defender, attorney for appellant (Bernado W. Henry, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Vered Adoni, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Phillip Webb appeals from his June 15, 2005 conviction, following a trial by jury, on first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1) (count one), and third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count two). After merging count two into count one, the judge sentenced defendant on count one to a fifteen-year term of imprisonment subject to a seven and one-half year parole ineligibility term. Appropriate fines and penalties were imposed. On appeal, defendant asserts that the denial of his motion to suppress was error, the judge's charge to the jury was erroneous, and the sentence imposed was excessive. We disagree with his first two claims, but agree with the third. Consequently, we affirm defendant's conviction and remand for resentencing.

I.

On September 7, 2003, Detective Robert Carney of the Bergen County Police Department was on patrol on Route 4 in Fort Lee when he observed a white Honda Accord dart across traffic on Route 4, cut off two vehicles, and drive through the safety zone to enter Route 95 South. After observing such erratic driving, Carney activated his overhead lights and siren and stopped the Honda on Route 95 South. As he pulled the vehicle over, Carney observed that the two occupants of the vehicle "were moving." Defendant, the driver, produced an Ohio driver's license, temporary registration and a temporary insurance card. Carney determined that although defendant's Ohio driver's license was valid, his New Jersey license had been suspended. Consequently, defendant was not permitted to drive in New Jersey.

While speaking with defendant, Carney observed a "very large" bulge in the waistband of the passenger, Demorris Garner. Carney was also standing in the shoulder of a busy eight-lane highway with tractor-trailer trucks passing close to him. Concerned for his safety because of the vehicular traffic and the unknown nature of the bulge in the passenger's waistband, Carney directed defendant to step to the rear of the vehicle, where Carney frisked him. The pat-down produced no contraband. In response to Carney's question about why he was in New Jersey, defendant responded that he and Garner were returning from New York City, where they had purchased some compact discs.

Carney then approached Garner, who was still seated in the front passenger seat, and asked him the same question he had already asked defendant. Garner gave a different answer than defendant had, stating he and defendant had dropped defendant's son off in New York City and were on their way back to Ohio. Because defendant was not licensed to operate a vehicle in New Jersey, Carney asked Garner if he possessed a driver's license, and Garner responded that he did not. With neither occupant of the vehicle authorized to operate it, Carney determined that the vehicle should be towed, and consequently called for a tow truck.

When a backup officer arrived, Carney asked Garner to exit the vehicle. Once Garner was outside, Carney patted him down in the area where he had observed the bulge, which turned out to be a bag hanging over the waistband of Garner's trousers. Feeling the bag, Carney realized that it did not contain a weapon, but instead contained "quite a few pills." Based upon Carney's training and experience, he believed the "small round hard pill[s]" to be CDS, namely "ecstasy." After charging defendant and Garner with possession of CDS with intent to distribute, both were taken into custody. Carney also issued motor vehicle summonses to defendant for careless driving and driving through the safety zone. At police headquarters, the bag removed from Garner's waistband was found to contain 1,300 "ecstasy" pills.

Carney testified at the suppression hearing that he ordered Garner out of the vehicle because he was concerned for his own safety, pointing to both occupants' movement within the vehicle during the stop, their conflicting accounts of why they were in New Jersey and, most important, his fear that the bulge at Garner's waistband was a gun. The judge denied defendant's motion to suppress. The judge concluded that Carney was justified in stopping the vehicle once he observed the motor vehicle violations, and that Carney had authority to order defendant and Garner out of the car for a protective search. The judge also concluded that once Carney determined through his sense of touch that the object at Garner's waistband was contraband, the officer had probable cause to seize the object and arrest defendant and Garner on narcotic charges. The judge therefore denied defendant's motion to suppress.

At trial, Carney's testimony was identical to his testimony at the suppression hearing. The State also called a forensic chemist who testified that the round white tablets in question were methylene dioxide amphetamine, commonly known as "ecstasy." After calling a witness who testified to the chain of custody, the State rested. Defendant did not testify or call any witnesses. Garner took the stand and testified that he was holding the pills only because defendant had forced him to do so. The jury acquitted Garner on the indictable offenses, but found him guilty of the disorderly persons offense of failure to turn over CDS to a law enforcement officer. Defendant was convicted of the two offenses we have described.

During the course of the judge's instruction to the jury on count one, the judge explained that so long as the State proved defendant had the intent to distribute the CDS, it was immaterial whether the ultimate location for such distribution was New Jersey or instead some other State. The judge instructed the jury that "[i]t is not necessary for the State to prove that the defendants intended to distribute the drugs in New Jersey. There is territorial jurisdiction for the whole offense of possession with intent to distribute if possession occurs in this State." The judge explained that the "indictment alleges that the defendants distributed [ecstasy] in regard to the second element of the statute that the defendants had under their control or possessed S-1 in evidence." In all other respects, the charge to the jury was identical to the model jury charges for the offenses in question. Defendant did not object to the charge as given.

On appeal, defendant presents the following claims for our consideration:

I. THE TRIAL COURT SHOULD HAVE GRANTED THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE BECAUSE THE SEARCH AND SEIZURE OF THE DEFENDANT VIOLATED HIS CONSTITUTIONAL RIGHTS AND DID NOT FALL UNDER ANY OF THE EXCEPTIONS TO THE WARRANT REQUIREMENT.

II. OFFICER CARNEY DID NOT HAVE PROBABLE CAUSE TO BELIEVE THAT THE DEFENDANT HAD PARTICIPATED IN ANY CRIME.

III. OFFICER CARNEY DID NOT HAVE A VALID BASIS TO CONDUCT A SEARCH OF THE DEFENDANTS.

IV. THE ERRONEOUS JURY INSTRUCTIONS GIVEN BY THE TRIAL JUDGE ON THE ISSUE OF POSSESSION WITH THE INTENT TO DISTRIBUTE WARRANTS A REVERSAL OF THE GUILTY VERDICT AND THAT THE MATTER BE REMANDED FOR A NEW TRIAL.

V. THE COURT ABUSED ITS DISCRETION WHEN IT SENTENCED THE DEFENDANT TO A 15 YEAR TERM AND BY IMPOSING A SEVEN AND HALF YEAR PAROLE DISQUALIFIER USING FACTORS NOT FOUND BY THE JURY.

II.

We turn first to Points I, II and III in which defendant challenges the denial of his motion to suppress. He maintains that although Carney was authorized to stop the vehicle, he lacked authority to order either defendant or Garner to step outside of the vehicle and lacked authority to pat them down.

Warrantless searches and seizures are presumptively unreasonable and are therefore invalid unless falling within a recognized exception to the warrant requirement. State v. Johnson, 193 N.J. 528, 552 (2008). The burden is on the State, as the party seeking to uphold a warrantless search, to prove by a preponderance of the evidence that such search falls within one of those recognized exceptions. State v. Pineiro, 181 N.J. 13, 19-20 (2004).

We turn first to the stop. Unquestionably, the stop was lawful because Carney's observation of defendant committing two motor vehicle infractions provided a reasonable and articulable suspicion that the driver had violated the motor vehicle statutes, which is a sufficient basis, standing alone, to stop a motor vehicle. State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997). Although the motor vehicle infraction itself provides a sufficient basis for ordering the driver to step out of the vehicle, State v. Smith, 134 N.J. 599, 609 (1994), more is required before an officer may direct the passenger to exit. The officer "must be able to point to specific and articulable facts that would warrant heightened caution" before ordering the passenger to step out. Id. at 618. The State need not demonstrate that the officer believed the passenger to be "armed and dangerous," but must only show the existence of facts "in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car." Ibid.

Judged by that standard, the record amply supports the judge's conclusion that the totality of the circumstances warranted Carney's fear for his safety in light of the bulge at Garner's waistband, which Carney feared might be a gun. The occupants' differing accounts of their presence in New Jersey and their furtive movements in the vehicle during the stop added to Carney's reasonable fear for his safety. We therefore reject as meritless defendant's claim that ordering Garner out of the vehicle was unlawful.

Once Garner was out of the vehicle, Carney was entitled to pat him down if Carney reasonably and objectively believed that his safety and that of his partner were in danger. Id. at 620. The bulge at Garner's waistband was sufficient to justify the pat-down. State v. Cargill, 312 N.J. Super. 13, 17 (App. Div.), certif. denied, 156 N.J. 408 (1998). Thus, we reject defendant's claim that Carney's pat-down search of Garner was unconstitutional. Once Carney legitimately patted Garner down, and determined by feeling the contents of the bag that it contained contraband, Carney was authorized by "plain touch" to seize the contraband. Ibid. We thus reject the claims defendant advances in Points I, II and III and affirm the denial of his motion to suppress.

III.

In Point IV, defendant asserts that the judge's modification of the model jury charge on N.J.S.A. 2C:35-5 misled the jury by impermissibly reducing the State's burden of proof. In particular, he maintains that the judge's comment that the indictment alleged "that the defendants distributed [ecstasy]" was a misstatement because the defendants were not charged with distribution, but instead with possession of CDS with intent to distribute. This claim is meritless for several reasons. First, if anything, the judge's misstatement worked to defendant's benefit, not to his detriment. If indeed the jury was led to believe that the State was required to prove actual distribution, such belief would redound to defendant's benefit because there was no proof of a sale or distribution of the CDS. Instead, the State proceeded on the theory that the quantity was so large, namely 1,300 tablets, that the only purpose for which defendant could have jointly possessed the CDS was eventual distribution. Therefore, we conclude that the judge's use of the term distribution, rather than intent to distribute, could not have prejudiced defendant.

Second, and more important, we do not view a portion of a charge in isolation. State v. Wilbely, 63 N.J. 420, 422 (1973). All that is necessary is that a jury charge, as a whole, accurately state the governing legal principles. State v. Thompson, 59 N.J. 396, 411 (1971). When viewed in its entirety, the judge's charge to the jury correctly explained the elements of the offense the State was required to prove beyond a reasonable doubt. Third, there is no evidence demonstrating that the jury was confused or misled by the judge's use of the term "distributed" rather than "intent to distribute."

Fourth, the additional instruction, which explained that the crime of possession of CDS with intent to distribute is not limited to the territorial confines of New Jersey, was proper. State v. Meltzer, 239 N.J. Super. 110, 114 (Law Div. 1989) (holding that "[t]he New Jersey Legislature did not intend to limit prosecution only to those alleged drug dealers found distributing, or intending to distribute, within New Jersey"). For all of those reasons, we reject as meritless the claim defendant advances in Point IV.

IV.

Last, we turn to Point V, in which defendant claims that the fifteen-year sentence, with seven and one-half years of parole ineligibility, was excessive. Our review of sentencing decisions is deferential. State v. Noble, 398 N.J. Super. 574, 598 (App. Div.), certif. denied, 195 N.J. 522 (2008). In the context of appellate review of sentencing, a reviewing court focuses on: (1) whether the trial court followed the sentencing guidelines; (2) whether the aggravating and mitigating factors that the trial court found are based upon competent, credible evidence in the record; and (3) whether, even though the court sentenced in accordance with applicable sentencing guidelines, nevertheless, the application of the guidelines to the facts of the case is so clearly unreasonable as to "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).

The judge found the following aggravating factors: the harm was very serious given the "enormous quantity" of ecstasy involved and the endangerment of other people in what the judge described as a "commercial enterprise," N.J.S.A. 2C:44-1a(2) (aggravating factor two); there was a substantial risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3) (aggravating factor three); defendant was involved with the criminal justice system as a juvenile and had a prior felony conviction; there was a need to deter, as this was a first-degree offense involving a large quantity of drugs, N.J.S.A. 2C:44-1a(9) (aggravating factor nine); and a term of imprisonment was necessary because imposing only a monetary sanction would be viewed merely as a cost of doing business, N.J.S.A. 2C:44-1a(11) (aggravating factor eleven).

The sole mitigating factor the judge found was number eleven, N.J.S.A. 2C:44-1b(11), that incarceration of defendant would cause hardship to his family and children. The judge noted that the finding of this mitigating factor was necessary under State v. Dalziel, 182 N.J. 494, 504-05 (2005), but that the weight attributed to the factor was in his discretion. The judge commented that defendant was $19,000 in arrears in child support payments. Although defendant disputed this amount and offered explanations, he ultimately conceded that he was in arrears. As a result, the judge granted less weight to the mitigating factor, and found that, overall, the aggravating factors substantially outweighed the mitigating factors.

Based on these findings, the judge imposed a fifteen-year sentence, which is in the middle of the first-degree range. The judge also opted to impose a seven and one-half year parole disqualifier based on a finding that "1,500 tablets being distributed to different people[,] most likely young children and young people[,] would involve the destruction of their lives."

We turn first to the judge's imposition of a fifteen-year term of imprisonment. In light of defendant's prior record and the strong need to deter drug distribution, the sentence at the midpoint of the first-degree range does not shock the judicial conscience. Roth, supra, 95 N.J. at 365.

The imposition of a seven and one-half year parole ineligibility term, on the other hand, persents a number of problems: first, the finding of aggravating factor eleven, the cost of doing business, is not applicable where, as here, a prison sentence is not being balanced against a term of probation. Dalziel, supra, 182 N.J. at 503. Second, a parole ineligibility term should ordinarily not be imposed in circumstances such as this where the base term imposed is at the midpoint of the range. State v. Kruse, 105 N.J. 354, 362 (1987). Third, the judge's finding that the ecstasy tablets would likely be distributed to young people, and would therefore destroy 1,500 young lives, is not supported by any evidence in the record, and was thus an improper finding. Roth, supra, 95 N.J. at 364 (holding that the aggravating factors found must be based "upon competent credible evidence in the record"). Fourth, a parole ineligibility term cannot be imposed unless the court makes a specific finding that it "is clearly convinced that the aggravating factors substantially outweigh the mitigating factors[.]" N.J.S.A. 2C:43-6b.

A sentencing judge should, but need not, use the exact words "clearly convinced" in announcing the balancing of the aggravating and mitigating factors. State v. Logan, 262 N.J. Super. 128, 132 (App. Div.), certif. denied, 133 N.J. 446 (1993). Thus, we do not vacate the parole ineligibility term merely because the judge did not track the statutory language when he imposed such term. Instead, the parole ineligibility term must be vacated because two of the aggravating factors upon which the judge relied when he imposed the parole ineligibility term have now been stricken. We have considerable doubt that the judge would continue to find that the aggravating factors substantially outweigh the mitigating factors now that these two factors have been stricken.

Consequently, we vacate the imposition of the parole ineligibility term and remand for reconsideration of that portion of the sentence in light of the issues we have discussed. We intimate no view on whether the judge should again impose a parole ineligibility term, and, if so, what the length of that term should be. Thus, we affirm defendant's conviction and the imposition of a fifteen-year sentence; however, we vacate the imposition of the parole ineligibility term and remand for reconsideration of that portion of the sentence. We are mindful of the Court's recent admonition in State v. Cassady, 198 N.J. 165, 183-84 (2009), that a reviewing panel should not disturb the sentence imposed whenever the trial court has "set forth the facts upon which it relied" and "applied the aggravating and mitigating factors appropriately." Because our review of the record causes us to conclude that two of the aggravating factors were not properly applied, Cassady does not foreclose the result we have reached.

 
Affirmed in part, reversed in part, and remanded.

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A-6202-04T4

May 19, 2009