STATE OF NEW JERSEY v. NYKING J. HILL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1662-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NYKING J. HILL,

Defendant-Appellant.

________________________________

November 12, 2010

Submitted: October 27, 2010 - Decided:

Before Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-03-0730.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frederick P. Sisto, Designated Counsel, on the brief).

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

Appellant filed a pro se supplemental brief.

PER CURIAM

Following denial of a motion to suppress heroin found on his person, defendantNyking J. Hill pled guilty to second-degree possession of heroin with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1. Theplea agreement was open-ended as to sentencing and just required the minimum sentence under the Brimage guidelines of seven years incarceration with forty-two months (three and one-half years) of parole ineligibility, with the State having the opportunity to argue for a higher sentence. After dismissing a variety of other drug offenses in accordance with the plea agreement, the court sentenced defendant to a ten-year custodial term with a five-year period of parole ineligibility. Defendant appealed.

In a brief filed by counsel and a pro se reply brief, defendant asserts the following arguments on appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS BECAUSE THE PHYSICAL EVIDENCE ESTABLISHING THE BASIS FOR THE SEARCH AND SEIZURE OF MR. HILL WAS DERIVED FROM AN UNLAWFUL SEARCH AND SEIZURE OF HIS CO-DEFENDANT (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS BECAUSE THE EVIDENCE WAS SEIZED FROM MR. HILL WITHOUT PROBABLE CAUSE.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

Based on our review of the record and applicable law, we discern no error by the trial court and affirm defendant's conviction and sentence.

I.

The following evidence was presented at the suppression hearing. Officer Brian Mitchell and Sergeant James Brennan of the Atlantic City Police Department testified for the State and defendant and co-defendant Jerome Davis testified for the defense. The facts show that during surveillance in the area of a drug-trafficking public housing complex, a veteran officer, Sgt. Brennan, and a new member of the police force, Officer Mitchell, observed a person later identified as Davis. He aroused their suspicions because he stopped a series of persons, asking each one a question, and moved on to the next group. The officers then observed Davis approach a group of men who were gathered on the porch of a housing unit at 306 Rosemont Place and converse with a person later identified as defendant. Defendant and Davis then met by different routes at the rear of the unit at 325 Rosemont. The men were continuously in the officers' sight. Officer Mitchell saw defendant hand Davis a small white bag in exchange for currency.

The men then separated; the officers saw Davis walking south and defendant rejoining the group on the porch. The officers, believing they had just witnessed a drug transaction, drove one or two blocks from the housing complex and stopped Davis. The officers indicated they knew Davis had purchased something and he responded that he had bought drugs at the housing complex. The police arrested Davis and recovered from his pocket a small white bag containing heroin that was stamped in green ink with the brand name "Sweet Dreams."

Davis was transported to headquarters by another officer, and Officer Mitchell and Sgt. Brennan immediately returned to defendant's location on the porch. Defendant was arrested, and sixteen small white bags containing heroin, marked identically to the bag found on Davis, were found in his possession.

Defendant and Davis were subsequently named in a five-count indictment. Davis pled guilty to third-degree possession of heroin and, at his sentencing, testified that the drugs he possessed were purchased from defendant. Though acknowledging this testimony at the suppression hearing, Davis claimed he had just taken the name from the police report, did not "recall" seeing defendant on the porch, and denied that the person present in the courtroom was the drug seller.

Judge Michael Connor expressly credited the testimony of the officers, explaining his reasons for this finding, and concluded "there was more than sufficient cause" to confirm defendant's identity for purposes of the suppression motion. The judge also found the police had probable cause to arrest defendant as the seller based on their own observations, and had the corresponding right to search and seize the evidence from defendant's possession.

II.

For the first time on appeal, defendant challenges the legality of the search and seizure of Davis, arguing it occurred without a clear showing of probable cause. Defendant then urges that because "there was insufficient attenuation to purge the unconstitutional taint from the evidence seized" from Davis, defendant's resulting arrest, search, and seizure were also unlawful.

It is questionable whether defendant had standing to challenge the police conduct relating to Davis. See State v. Arthur, 149 N.J. 1, 13 (1997) (distinguishing State v. Mollica, 114 N.J. 329 (1989), which established a broad standing rule permitting a defendant to challenge the seizure of evidence from a co-defendant where there is participatory involvement in the criminal activity by stating that "we note [] that our standing rule has been invoked only in cases in which a defendant has sought to suppress evidence that the State seeks to use directly against the defendant at trial, and not, in a case such as this, in which the seizure of the evidence allegedly violated the privacy interests of another person and is not sought to be used as evidence against the defendant to prove guilt, but only to justify an investigatory stop of the defendant[]"). Even assuming defendant did have standing, he failed to raise this issue before the trial court. In fact, defense counsel acknowledged during summation that the officers observed a transaction involving Davis but urged that the police did not have probable cause to arrest and search defendant based on a defense of misidentification. Accordingly, because the "factual antecedents [of the issue] never were subjected to the rigors of an adversary hearing, and because its legal propriety never was ruled on by the trial court, the issue was not properly preserved for appellate review." State v. Robinson, 200 N.J. l, 18-19 (2009).

In any event, although the issue is not properly before us, we note that defendant's substantive challenge to Davis' arrest is without merit. The observations made by the law enforcement officers, made in close proximity and broad daylight, coupled with their training and experience, supported probable cause to arrest Davis, search him, and seize the drugs incident to that arrest. See State v. Moore, 181 N.J. 40, 47 (2004).

The same totality of the circumstances, together with Davis' statement that he had bought drugs in the housing complex, undisputedly gave rise to probable cause for defendant's arrest as the seller of the heroin found on Davis. State v. Nishina, 175 N.J. 502, 515 (2003) (reiterating the probable cause standard of "a well-grounded suspicion that a crime has been or is being committed[]"). Contrary to defendant's bald assertion, there is no requirement that Davis had to expressly identify defendant as the seller for the police to arrest defendant.

Lastly, defendant challenges his sentence as excessive, claiming the court improperly, and without proper explanation, found the aggravating factors and gave no reasons for his refusal to find any mitigating factors. Defendant's sentencing arguments are without merit. Suffice it to say, our review of the trial judge's sentencing decision is quite limited. State v. Gardner, 113 N.J. 510, 516 (1989). We will not substitute our judgment for that of the trial judge. State v. O'Donnell, ll 7 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984). Modification is only necessary if the court mistakenly exercised its broad discretion and imposed a sentence that shocks the judicial conscience. Roth, supra, 95 N.J. at 364.

Defendant had a lengthy prior criminal history that led to several periods of incarceration and was eligible for an extended term of imprisonment. N.J.S.A. 2C:44-3. Judge Donio found the three applicable aggravating factors, N.J.S.A. 2C:44-1a(3), (6) and (9), substantially outweighed the non-existent mitigating factors. He did not impose an extended term, however, sentencing defendant to a ten-year custodial term with a five-year parole bar, which was within the guidelines. Nothing about this sentence shocks our conscience.