STATE OF NEW JERSEY v. ALVIN R. MILLER, JR.

 
(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NOT FOR PUBLICATION WITHOUT THE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-2577-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALVIN R. MILLER, JR.,

a/k/a DONALD MORRIS,

Defendant-Appellant.

______________________________

October 27, 2010

 

Submitted September 15, 2010 - Decided

 

Before Judges Sapp-Peterson and Simonelli.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-01-0084.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert D. Van Pelt, Designated Counsel, on the brief).

 

LuisA. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

 

 

PER CURIAM

Following a jury trial, defendant Alvin Miller was convicted of fourth-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(12) (count one); fourth-degree distribution of CDS, N.J.S.A. 2C:35-5b(12) (count two); and third-degree distribution of CDS to a juvenile, N.J.S.A. 2C:35-5b(12) (count three). At sentencing, the trial judge merged count one with count two and sentenced defendant on count two to a five-year extended term of imprisonment with a two-and-one-half-year period of parole ineligibility and to a concurrent three years with an eighteen-month period of parole ineligibility on count three. The judge also imposed the appropriate penalties and fee, and suspended defendant's driver's license for six months.

On appeal, defendant raises the following contentions:

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A BAIL REDUCTION, RESULTING IN AN UNJUST RESULT AFTER TRIAL.

 

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO [SUPPRESS] EVIDENCE FOUND AS THE RESULT OF AN ILLEGAL SEARCH AND SEIZURE.

 

POINT III

THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AND THEREFORE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO WARRANT A CONVICTION OF THE CRIME CHARGED.

 

POINT IV

THE SENTENCE IMPOSED BY THE COURT WAS MANIFESTLY EXCESSIVE.

 

We affirm.

I.

At approximately 3:15 a.m. on September 8, 2007, Officer Anthony Murray of the Borough of Bradley Beach Police Department was in uniform, driving a marked police vehicle on routine patrol in the vicinity of a Hess gas station located on State Highway 71/Main Street, a high-crime area with substantial drug activity. Murray saw two men, later identified as Daniel Iraola, a juvenile, and Gregory Rudolph, exit the Hess station's convenience store and walk toward a third man, later identified as defendant, who was waiting for them at the rear of the store near an large opening in a fence. Murray saw the individuals conversing and, as he drove toward them, saw what he believed to be a hand-to-hand drug transaction between defendant and Iraola. As Murray exited his vehicle to further investigate, defendant abruptly turned, walked through the opening in the fence, and continued walking away, ignoring the officer's repeated orders to stop. Murray ordered Iraola and Rudolph to sit down and, believing defendant was going to flee, radioed for backup. Murray then saw defendant proceed to an area between two dumpsters, raise his arm in the air, and throw a black bag. Defendant then walked back to the officer. A pat down search of defendant revealed no drugs.

Sergeant Theodore Bianchi arrived at the scene and noticed that Iraola was "very nervous[,]""fidgety" and "agitated" during questioning, and reached for his waistband several times as if trying to conceal something. Iraola consented to a pat down search. As the officer searched Iraola, two blue baggies containing marijuana fell from Iraola's pant leg to the ground. Iraola said that he had purchased the marijuana from defendant for $10. The officer arrested Iraola and placed him in a patrol vehicle. Murray placed defendant under arrest, administered defendant his Miranda1 rights, searched him, and found a $10 bill in one of his pockets.

Sergeant John Matthews of the Neptune City Police Department arrived at the scene,2 searched the dumpster area where defendant had been, and found two blue plastic baggies similar to those found near Iraola, which contained marijuana. Matthews reported to the other officers what he had found, and they all returned to the dumpster, where two clear baggies containing marijuana and the black bag Murray saw defendant throw earlier were also found.

Defendant moved to suppress the marijuana evidence. He argued that his and Iraola's stops were unlawful because Murray lacked a reasonable suspicion that they had engaged in criminal activity. The trial judge denied the motion based on the totality of circumstances, including: (1) Murray's observations, training, and experience; (2) the location of the incident in a high crime area with substantial drug activity; (3) the time of day of the encounter; (4) defendant's flight and failure to comply with the commands to stop; and (5) defendant's discarding the black bag. For those reasons, the trial judge concluded that the officer had a reasonable and articulable suspicion that defendant and Iraola were engaged in criminal activity. The judge also concluded that defendant had abandoned the drugs found by the dumpster.

At trial, Iraola testified he was born on May 1, 1990, and was seventeen years old at the time of his arrest. He and Rudolph were inside the Hess station convenience store when defendant approached him, asked if he wanted to purchase marijuana, and told him to meet defendant outside. Iraola met defendant outside the building by the fence. Defendant pulled two blue baggies containing marijuana from a large clear bag and gave them to Iraola in exchange for a $10 bill. Iraola admitted that the police searched him and found the two blue baggies, which had dropped from his pants to the ground.

At the close of the State's case, defendant moved for a judgment of acquittal on count three, third-degree distribution of CDS to a juvenile, because the State failed to produce a birth certificate confirming Iraola's date of birth. Defendant also moved for a judgment of acquittal on all counts based on the lack of sufficient evidence tying him to the bags of marijuana. The judge denied the motion, concluding Iraola's testimony sufficiently established his age, and the evidence was sufficient for the jury to find defendant guilty on all counts. This appeal followed.

II.

Defendant contends in Point II that the trial judge erred in denying his motion to suppress. Defendant again argues that Murray had lacked a reasonable belief that he and Iraola were engaged in criminal activity, and thus, their stop and the subsequent search were unlawful. We disagree.

Our review of a trial judge's factual determination is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, 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.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). When we are satisfied that the findings of the trial court could reasonably have been reached on the record, "[our] task is complete and [we] should not disturb the result, even though [we have] the feeling [we] might have reached a different conclusion were [we] the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then [we] should review 'the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting Johnson, supra, 42 N.J. at 162). "[We] owe[] no deference to the trial court in deciding matters of law. When a question of law is at stake, [we] must apply the law as [we] understand[] it." Ibid. (internal citation omitted). Applying these standards, we are satisfied that the trial judge properly denied defendant's motion.

"Under Article I, Paragraph 7 of the New Jersey Constitution, a defendant has automatic 'standing to move to suppress evidence from a claimed unreasonable search or seizure "if he has a proprietary, possessory or participatory interest in either the place searched or the property seized."'" State v. Carvajal, 202 N.J. 214, 222 (2010) (quoting State v. Johnson, 193 N.J. 528, 541 (2008)) (internal citation omitted). "Under our standing jurisprudence, generally, a defendant charged with a possessory offense, such as possession of a controlled dangerous substance with intent to distribute, has standing to challenge the seizure of the evidence that constitutes the possession element of the offense." Id. at 222-23. However, "a defendant has no constitutionally protected interest in property that has been abandoned[,]" and lacks standing to object to the search or seizure of that property. Id. at 223. "For standing purposes, 'property is abandoned when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property.'" Ibid. (quoting Johnson, supra, 193 N.J. at 549).

Here, the record amply supports the trial judge's finding that defendant abandoned the black bag and clear plastic bag found by the dumpster. Defendant, thus, lacks standing to challenge the search or seizure of those items. Even if defendant had not abandoned the items, the motion was still properly denied because there is ample evidence that Murray had reasonable articulable suspicion to stop defendant and Iraola.

"A warrantless seizure is 'presumptively invalid as contrary to the United States and the New Jersey Constitutions.'" Mann, supra, 203 N.J. at 337 (quoting State v. Pineiro, 181 N.J. 13, 19 (2004)). "'Because our constitutional jurisprudence evinces a strong preference for judicially issued warrants, the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure falls within one of the few well-delineated exceptions to the warrant requirement.'" Id. at 337-38 (quoting Elders, supra, 192 N.J. at 246).

"One such exception is denominated an investigatory stop or a Terry3 stop. Such a stop 'is valid if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Id. at 338 (quoting Pineiro, supra, 181 N.J. at 20). "Because the 'determination of reasonable [and articulable] suspicion is fact-sensitive,' a careful review of the totality of the circumstances surrounding each case is required." Ibid. (quoting Pineiro, supra, 181 N.J. at 22).

In assessing the totality of the circumstances, courts should consider a number of factors, including an officer's experience and knowledge, Pineiro, supra, 181 N.J. at 22; State v. Stovall, 170 N.J. 346, 363 (2002); the area's high crime status and the time of day of the encounter, State v. Valentine, 134 N.J. 536, 553-54 (1994); flight and failure to heed an officer's command to stop, Mann, supra, 203 N.J. at 339; and the officer's observations of defendant attempting to discard the drugs, ibid. Also relevant is whether the officer observed packages, other objects or money exchange hands between suspects. Pineiro, supra, 181 N.J. at 27-29.

We are satisfied that the trial judge's findings are amply supported by the record. Murray observed a hand-to-hand transaction between defendant, which occurred early in the morning in a high-crime area with substantial drug activity. Based on his training and experience, Murray believed a drug transaction had occurred. When ordered to stop, defendant initially fled and failed to comply with the officer's repeated commands to stop. Murray observed defendant discard the black bag. The judge fairly determined that the totality of the circumstances gave Murray a reasonable and articulable suspicion that defendant and Iraola were engaged in criminal activity. Thus, the police properly seized the marijuana.

III.

Defendant contends in Point III that the trial judge erred in denying his motion for judgment of acquittal. Defendant argues that the State failed to produce "one scintilla of evidence" that could have established the charges against him. (DB25) Defendant's contention lacks merit.

We use the same standard as the trial judge in reviewing a motion for judgment of acquittal. State v. Johnson, 287 N.J. Super. 247, 268 (App. Div.) (citing State v. Moffa, 42 N.J. 258, 263 (1964)), certif. denied, 144 N.J. 587 (1996); State v. Tarver, 272 N.J. Super. 414, 425 (App. Div. 1994)). We must determine

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

 

[State v. Reyes, 50 N.J. 454, 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)).]

 

See also State v. Spivey, 179 N.J. 229, 236 (2004); State v. Josephs, 174 N.J. 44, 81 (2002); R. 3:18-1.

Under Rule 3:18-1, the court "'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. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfies that standard, the motion must be denied." Spivey, supra, 179 N.J. at 236.

We are satisfied that the evidence in this case, viewed in a light most favorable to the State, was more than sufficient to allow a reasonable jury to find defendant guilty of all charges beyond a reasonable doubt. Iraola's sworn testimony sufficiently established his age of minority, and Iraola's and Murray's testimony sufficiently established that defendant actually distributed CDS to Iraola.

IV.

In Point IV, defendant challenges his sentence as excessive. Defendant does not dispute he was extended-term eligible. Rather, he contends the trial judge enhanced his sentence in excess of the presumptive maximum term based on aggravating factors not found by the jury, and failed to consider mitigating factors N.J.S.A. 2C:44-1b(2) ("[t]he defendant did not contemplate that his conduct would cause or threaten serious harm"), N.J.S.A. 2C:44-1b(8) ("[t]he defendant's conduct was the result of circumstances unlikely to recur"), and N.J.S.A. 2C:44-1b(11) ("[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents").

We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 n.4 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). When reviewing a judge's sentencing decision, we "may not substitute [our] judgment for that of the trial court. . . ." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we "may review and modify sentences only when the trial court's determination was 'clearly mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence in the record, and decide whether application of the guidelines makes a particular sentence so clearly unreasonable that it shocks the judicial conscience. Roth, supra, 95 N.J. at 364-65; O'Donnell, supra, 117 N.J. at 215-16.

The applicable statutory extended-term of imprisonment for a fourth-degree crime is three to five years. N.J.S.A. 2C:43-7a(5). The judge sentenced defendant to five years on count one. In imposing the sentence, the judge found the following aggravating factors: N.J.S.A. 2C:44-1a(3) ("[t]he risk that the defendant will commit another offense"); N.J.S.A. 2C:44-1a(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); and N.J.S.A. 2C:44-1a(9) ("[t]he need for deterring the defendant and others from violating the law"). The judge found no mitigating factors.

The record amply supports the judge's findings regarding aggravating and mitigating factors. Defendant has five municipal court convictions and eight prior superior court convictions, including one for possession of CDS with intent to distribute, and he sold illegal drugs to a minor for profit in this case. The record does not support a finding of any mitigating factors. Specifically as to mitigating factor N.J.S.A. 2C:44-1b(11), although defendant has six children, he does not support them, as evidenced by his child support arrears of $87,000. See State v. Christensen, 270 N.J. Super. 650, 657 (App. Div. 1994); State v. Mirakaj, 268 N.J. Super. 48, 51 (App. Div. 1993). We are satisfied that the judge followed the sentencing guidelines and that defendant's sentence does not shock the judicial conscience.

 

V.

Defendant's contention in Point I, that the trial judge erred in denying his motion for a bail reduction, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comment.

An appeal from the denial of a motion for bail reduction is considered moot where, as here, the defendant has been tried, convicted and sentenced. See State v. Lyle, 61 N.J. 179, 180 (1972). Even if not moot, defendant has failed to establish an abuse of discretion. See State v. Johnson, 61 N.J. 351, 364 (1972).

Affirmed.

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

2 The Hess station is located near the border of Bradley Beach and Neptune City. Matthews responded to Murray's back-up call in the event defendant ran into Neptune City.

3 Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968).