STATE OF NEW JERSEY v. MARKESE S. SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6323-06T46323-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARKESE S. SMITH,

Defendant-Appellant.

___________________________

 

Submitted November 18, 2008 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-04-0136.

Yvonne Smith Segars, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).

Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Markese Smith was indicted for third-degree possession of a controlled dangerous substance (CDS), cocaine, in violation of N.J.S.A. 2C:35-10(a)(1). Prior to trial, defendant brought a motion to suppress evidence on the basis of a warrantless search and a motion to dismiss the indictment based on fundamental fairness. The trial judge denied both motions and the matter proceeded to trial. On the second day of trial, defendant moved for a mistrial claiming unfair surprise from new evidence discovered by the State following the testimony of one of its witnesses. The trial judge granted the motion for a mistrial. Defendant thereafter entered a plea of guilty to the charge of third-degree possession of cocaine, and was subsequently sentenced to 180 days in the Warren County Correction Center with a two-year probationary period. On appeal, defendant raises the following issues for our consideration:

POINT I: THE TRIAL ERRED [BY] DENYING THE [DEFENDANT'S] MOTION TO SUPPRESS THE EVIDENCE.

POINT II: THE INDICTMENT SHOULD HAVE BEEN DISMISSED BASED ON THE DOCTRINE OF FUNDAMENTAL FAIRNESS.

POINT III: THE INDICTMENT SHOULD HAVE BEEN DISMISSED AT TRIAL BECAUSE OF UNFAIR SURPRISE AND PROSECUTORIAL MISCONDUCT. (NOT RAISED BELOW).

Unfair Surprise At Trial Warranted Dismissal Of The Indictment With Prejudice.

The Prosecutor's Misconduct Justified The Dismissal Of the Indictment.

POINT IV: THE INDICTMENT SHOULD HAVE BEEN DISMISSED BASED ON FAILURE OF MANDATORY JOINDER.

Having reviewed these contentions in light of the record and the controlling law, we affirm.

At the motion to suppress hearing, Officer Travis Zechman, of the Phillipsburg Police Department, testified that he was on duty on December 20, 2005, and responded to a "large fight." Upon arrival, he observed "three men fighting[,] . . . one man on the ground, two men on top of him. . . . One was punching at him. The other man kicked him at least one time." Zechman identified defendant as the man "punching at the man on the ground." When Zechman approached, defendant "saw [him] and turned and started to run." After a brief pursuit, Zechman grabbed defendant, brought him back to the scene and told him to sit down.

While Zechman was talking to the other two individuals, Officer James P. Stettner arrived on the scene. Zechman advised Stettner that defendant was under arrest for simple assault and asked the officer to handcuff him. Zechman testified that the weather on that date was cold, with snow on the ground, and that defendant was wearing a jacket when he pursued him and brought him back to the scene.

Stettner testified that when he approached defendant, he observed that defendant was wearing jeans and a tee shirt; there was a jacket on the ground at defendant's feet. Stettner stated, "[Defendant] was sitting on the edge of a concrete parking pad and [the jacket] was right next to his legs." The other two individuals were at least twenty feet away at that time. Stettner had defendant stand up, told him that he was under arrest and placed him in handcuffs. The officer then "checked his person[]" for "contraband."

Stettner testified that after patting defendant down, he found "nothing in his pockets." He then "picked up the jacket, checked the jacket, and escorted [defendant] to the car." Stettner testified, that "[i]nside the jacket [he] had located . . . what was believed to be crack." Stettner described finding "three clear plastic baggies" each containing a "white rock-like substance." Based on his training and experience, he concluded it was crack cocaine.

Stettner further testified that he "believed it was [defendant's jacket] because it was a cold night and he was the only one without a jacket. The jacket was right at his feet." When Stettner informed defendant that he had found crack cocaine in his jacket, defendant said "oh, that's not my jacket." Stettner told defendant that "it was ten degrees out and all he had on was a tee shirt." Stettner then "advised [defendant] he was the only one without a jacket on and he again denied it [was] his jacket." Stettner added that Zechman had mentioned to him grabbing defendant's jacket during the earlier pursuit.

In his ruling, the judge found that the police had made a "lawful arrest" of defendant based on the fight Zechman had observed in progress. The judge further ruled that the arresting officer, Stettner, was

entitled to ensure his safety by patting down persons that he's arresting even for a disorderly persons offense.

Finding no identification and obtaining no identification from the defendant he was free to search in what he thought may have been the defendant's jacket even though the defendant denied any possession of it. Finding no identification, however, he did find contraband substance.

The search is legal.

At the outset, we note that the scope of our review of the denial of a motion to suppress is limited. 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) (citation omitted). Based upon the evidence presented at the hearing, we reject as without merit defendant's contention that "it was his mere presence at the scene that triggered the police to charge him with possession of CDS[,]" and that "[r]ecovery of a jacket containing contraband did not support a finding that defendant was knowingly and intentionally in possession of cocaine." The trial judge found defendant's repeated statements that the jacket was not his to be incredible. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the charater and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). We perceive no basis on which to overturn the trial judge's credibility determinations.

Defendant does not contest the legality of his arrest or the police officer's right to search him pursuant to that arrest. Rather, his argument relates solely to the search of the jacket he claimed did not belong to him. Under the totality of the circumstances, we conclude that Officer Stettner reasonably assumed the jacket lying at defendant's feet belonged to defendant, and, therefore, he had the right to search that jacket contemporaneously with defendant's arrest. State v. O'Neal, 190 N.J. 601, 612-14 (2007). As the trial judge found, the police conduct in this matter was reasonable.

Defendant next argues that the indictment should have been dismissed on the basis of fundamental fairness. Approximately three weeks after his arrest, defendant appeared without counsel

in Phillipsburg Municipal Court and entered a guilty plea to the disorderly persons offense of simple assault; he received fines and penalties totaling $189.00. Defendant allegedly believed that this municipal court appearance resolved the case, although he provided no evidence to support that belief. The Office of the Warren County Prosecutor thereafter referred defendant's case to a grand jury and obtained an indictment for possession of cocaine.

We note initially that this issue is not properly before us. Defendant did not enter a conditional plea, pursuant to Rule 3:9-3(f), "reserving on the record the right to appeal from the adverse determination of any specified pretrial motion." Once a defendant has entered an unconditional guilty plea, he is barred from raising any pre-plea issues not so preserved, even those of a constitutional nature. State v. Crawley, 149 N.J. 310, 316 (1997) (citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 35 L. Ed. 2d 235, 243 (1973)). See also State v. Knight, 183 N.J. 449, 470 (2005), in which the Supreme Court concluded that, "[a]s a jurisdictional matter, . . . by entering an unconditional guilty plea, [the] defendant waived his right to challenge the admissibility of his robbery confessions."

Nonetheless, we have reviewed this issue on the merits and conclude that the denial of defendant's motion to dismiss should be affirmed for the reasons stated by the trial judge in his decision rendered from the bench. R. 2:11-3(e)(2). Defendant's reliance upon State v. Yoskowitz, 116 N.J. 679 (1989), is misplaced. There, the defendant had paid another individual to steal his car so that he could recover an insurance payment for it. Id. at 683. Approximately eight days later, firefighters found defendant's car on fire in a deserted area. Id. at 683-84. The defendant thereafter admitted to the police that he had committed fraud and was charged with filing a false report. Id. at 685. The defendant pled guilty to that charge, without counsel. Id. at 686.

The defendant was subsequently indicted for third-degree arson, N.J.S.A. 2C:17-1(b)(3), and third-degree theft by deception, N.J.S.A. 2C:20-4(a). His motion to dismiss the indictment on double jeopardy and mandatory joinder grounds was denied. The defendant then pled guilty to the theft by deception charge, preserving his right to appeal the denial of his motion. Id. at 687-88.

On appeal, the defendant argued that the arson indictment should have been dismissed on the basis of fundamental fairness. Id. at 688. The defendant's fundamental fairness argument was based upon his contention that he had been assured that no other charge would be filed if he pled guilty to the false report charge. Id. at 708. For that reason, the Court remanded the matter "to the trial court to determine whether the principles of fundamental fairness and reasonable expectations apply in this case." Id. at 710.

Here, defendant makes no such claim. We conclude that defendant had no reasonable expectation that he would not be indicted for possession of cocaine after pleading guilty to the disorderly persons offense in municipal court. He makes no claim that anyone assured him otherwise.

Defendant next argues that the indictment should have been dismissed because of unfair surprise and prosecutorial misconduct. This issue is raised as plain error as no motion was brought on this basis. Thus, defendant appears to argue that the trial judge should have dismissed the indictment sua sponte, due either to unfair surprise at trial or to prosecutorial misconduct.

Having pled guilty to the indictment, we conclude that defendant has waived his right to appeal these issues that arose during his aborted trial. State v. Owens, 381 N.J. Super. 503, 508-09 (App. Div. 2002). Nonetheless, we briefly address them on the merits.

The alleged "unfair surprise" arose when, at the conclusion of Stettner's testimony, the prosecutor determined that additional cocaine had been found in defendant's jeans pocket. Because the prosecution had proceeded, to that point, based solely upon the cocaine found in defendant's jacket, the trial judge, finding "no misconduct on the Prosecutor's part because he wasn't aware of where this stuff had been found," nonetheless granted defendant's motion for a mistrial on this basis. In granting the motion, the judge noted that "it would be very unfair because of a surprise to allow [defendant] to continue because [his] strategy has been sort of destroyed."

Upon discovery of this "unfair surprise" evidence, defendant moved only for a mistrial and not for dismissal of the indictment. The judge's decision to declare a mistrial fully addressed any prejudice to defendant arising from the belated discovery of evidence regarding the cocaine found in the pocket of defendant's pants. We are satisfied that the judge did not err by failing to dismiss the indictment on his own motion. Under the circumstances, we conclude that defendant's claim of prejudice from the trial judge's failure to enter a sua sponte dismissal of the indictment on this basis is without merit. R. 2:11-3(e)(2).

For the same reasons, we reject as without merit defendant's argument that the trial judge erred in failing to dismiss the indictment sua sponte for prosecutorial misconduct. Defendant points to two examples of such misconduct: (1) the "surprise" evidence at trial of the cocaine found in defendant's jeans pocket; and (2) the prosecutor's failure to join the simple assault charge with the possession of cocaine indictment. Again, we consider defendant to have waived his right to appeal these issues by virtue of his guilty plea. Owens, supra, 381 N.J. Super. at 508-09. Moreover, we find them to be without merit.

Regarding the first claim of misconduct, defendant was granted a mistrial for that unfair surprise, thereby eradicating any claim of prejudice as a result. Furthermore, the trial judge specifically found no misconduct on the part of the prosecutor when granting that mistrial. This issue is "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(2).

Defendant's second misconduct claim is essentially identical to his final argument, i.e. that the indictment should have been dismissed because there was no mandatory joinder of his disorderly persons offense and his cocaine possession offense. The only difference is that, in the latter argument defendant expressly relies upon Rule 3:15-1(b), the "mandatory joinder" rule, which provides:

[A] defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court.

This particular argument is before us as "plain error" as the trial judge never had an opportunity to consider it. R. 2:10-2. It is procedurally barred as well. Owens, supra, 381 N.J. Super. at 508-09. We consider it to be without merit.

Simple assault, N.J.S.A. 2C:12-1(a), is a disorderly persons offense within the jurisdiction of the municipal court. Third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), is an indictable offense within the jurisdiction of the Superior Court. Thus, these offenses were not "within the jurisdiction and venue of a single court[,]" and were not subject to mandatory joinder under R. 3:15-1(b).

Defendant's reliance upon State v. Snellbaker, 272 N.J. Super. 129 (App. Div. 1994), is misplaced. There, the defendant was tried for indictable and non-indictable offenses arising from a single automobile accident. Id. at 131. When a mistrial was declared, the trial judge indicated that she would rule on the non-indictable offenses. Id. at 131-32. However, upon the State's appeal from the mistrial order, we ordered the trial judge to reserve judgment on the non-indictable offenses pending retrial. Id. at 137.

Unlike the defendant in Snellbaker, defendant had already pled guilty to the simple assault charge in municipal court. Therefore that charge was not pending as of his trial on the indictable offense. Moreover, the charges in Snellbaker all arose from one car accident and were related to that accident. Id. at 131. Here, the discovery of cocaine was ancillary to defendant's arrest for the simple assault charge. In sum, we conclude the trial court's failure to invoke mandatory joinder sua sponte does not constitute plain error, as it was not "clearly capable of producing an unjust result . . . . " R. 2:10-2.

Affirmed.

(continued)

(continued)

13

A-6323-06T4

March 31, 2009