STATE OF NEW JERSEY v. JOHN ARTHUR JONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4129-08T44129-08T4

STATE OF NEW JERSEY,

Defendant-Appellant/

Cross-Respondent,

v.

JOHN ARTHUR JONES,

Plaintiff-Respondent/

Cross-Appellant.

_________________________________________

 

Submitted December 14, 2009 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-12-2744.

Luis A. Valentin, Monmouth County Prosecutor, attorney for appellant/cross-respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent/cross-appellant (Michael C. Wroblewski, Designated Counsel, of counsel and on the brief).

PER CURIAM

Pursuant to Rule 3:18-2, the State appeals from the April 9, 2009 order granting defendant John Arthur Jones's motion for a judgment nov on two convictions. Defendant cross-appeals from the remaining convictions. We affirm on the appeal and cross-appeal.

These are the State's proofs. On January 24, 2008, Neptune Police Officer Jason Petillo conducted a surveillance at the intersection of West Lake and Myrtle Avenue at 10:36 a.m. This is considered a high-crime area. Petillo saw two men. One was later identified as defendant. The other male, an African-American wearing a red sweatshirt, remains unidentified. The men stood in front of a liquor store. Petillo utilized binoculars to enhance his view. A blue Chevy pickup truck pulled up fifteen yards from the two men. Another male, later identified as co-defendant Anthony Vecchione, Jr., exited the vehicle and engaged in a conversation with the two men.

According to Petillo, he saw the unidentified male point in the opposite direction of Petillo's surveillance. The three men walked on Myrtle Avenue and stopped five yards before reaching the blue pickup truck. The three men "looked around." Petillo observed defendant reach into his left pants pocket with his left hand and pull out a napkin. Defendant used his right hand to pull small objects out of the napkin and handed the objects to Vecchione. Vecchione looked down at the items and smiled. Vecchione then reached into his left jacket pocket with his left hand and removed money. Vecchione separated the money, handed it to defendant and walked away. The unidentified male also walked away.

Petillo contacted Officers Kirchner and Monahan and provided a description of the suspected seller, who was inside the liquor store, and Vecchione's vehicle. Monahan responded to the liquor store. Defendant, who appeared "visibly nervous," was standing by the lottery counter. Monahan instructed defendant to step away from the counter and provide identification. Defendant submitted to a pat down search.

Defendant was arrested and searched. The search revealed sixteen Percocet pills contained inside a napkin. This was seized along with a piece of plastic glove. Monahan was unable to recall whether any money was found on defendant's person.

Officer Gregory T. Washington followed and then stopped Vecchione's pickup truck within two blocks of the liquor store. The pickup truck was following a black vehicle. Washington stopped Vecchione and questioned him. Vecchione informed Washington that he was in the area to meet his co-worker "Jason." Vecchione denied stopping anywhere else. Monahan informed Washington that defendant was under arrest for possession of Percocets. Washington arrested Vecchione. A search of Vecchione did not reveal any CDS. It is undisputed that the arrest occurred within 1,000 feet of a Roman Catholic school.

At headquarters, Monahan gave the Miranda warnings to defendant. Defendant initialed each line to acknowledge that he understood each warning. According to Monahan, no promises were made to defendant prior to the an interview. Defendant denied selling two Percocets to Vecchione. However, he confessed that he provided the unidentified male a Percocet after the man complained of pain. Defendant received no money from the unidentified male for the Percocet.

Vecchione initially denied purchasing anything from defendant. Petillo informed Vecchione that his story was not consistent with defendant's version of the events. Vecchione confessed that he purchased Percocet pills for $10 from defendant. He threw the pills out his car window when he saw a patrol car behind him.

Vecchione pleaded guilty in exchange for the State's recommendation of a probationary sentence, conditioned on four months already served. He agreed to provide truthful testimony at defendant's trial. At trial, Vecchione testified that he went to the liquor store to meet "John" to purchase an ounce of marijuana. He purchased two Percocet pills from defendant and intended to follow the unidentified male to purchase marijuana. Defendant offered to sell him the pills after he told defendant why he was at the liquor store.

Following a jury trial, defendant was convicted of third degree possession of CDS, N.J.S.A. 2C:35-10a(1); third degree distribution of CDS to an unidentified male, N.J.S.A. 2C:35-5b(5); and third degree distribution of CDS to an unidentified male while within 1,000 feet of school property, N.J.S.A. 2C:35-7. Defendant was acquitted of third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(5); third degree possession of CDS with intent to distribution while within 1,000 feet of school property; third degree distribution of CDS to Vecchione, N.J.S.A. 2C:35-5b(5); and third degree distribution of CDS to Vecchione, while within 1,000 feet of school property, N.J.S.A. 2C:35-7.

Defendant moved for judgment nov as to the two counts charging a distribution to an unidentified male. The judge granted the motion, holding that there was insufficient corroboration to satisfy the independent proof requirement. On the remaining conviction, the State moved pursuant to N.J.S.A. 2C:43-7(a)(4) for imposition of an extended term based on defendant's prior criminal record. The judge granted the motion and imposed a ten-year term with a five-year parole disqualifier.

State's Appeal

On appeal, the State contends:

THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

The State contends that defendant's presence in the same vicinity of the unidentified male, and possession of sixteen Percocet pills, constituted legally sufficient evidence to corroborate defendant's confession. We disagree.

The law is well-settled, "an uncorroborated extra-judicial confession cannot provide the evidential basis to sustain a conviction for crime." State v. Lucas, 30 N.J. 37, 51 (1959). The State is required to "introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness[.]" Id. at 56. In deciding whether to grant a motion of acquittal, the trial court must determine whether there is any "legal evidence, apart from the confession of facts and circumstances, from which the jury might draw an inference that the confession is trustworthy." Id. at 62. This is both a legal and factual determination. State v. Reddish, 181 N.J. 553, 618 (2004).

Thus, the trial court must determine whether:

the [State's] evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn there from, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt.

[State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975).]

If the State satisfies this burden, the jury may then consider any missing details or discrepancies. Ibid. Whether the motion for acquittal is made at the close or end of the State's case, the same standard is applied, i.e., only the State's proofs will be considered. Ibid. We apply the same standard on review. State v. Sugar, 240 N.J. Super. 148, 153 (App. Div.), certif. denied, 122 N.J. 187 (1990).

Here, the judge found that aside from defendant's statement the State's only proof of criminal conduct by defendant was Petillo's testimony. The judge therefore found that it was not possible "for the defendant to possess CDS and distribute CDS, but never have the intent to distribute." Further, the judge rested his decision on the fact that Petillo did not testify that he observed defendant transfer CDS to the unidentified male.

The State failed to present any legally sufficient evidence to corroborate defendant's confession. "Distribute" is statutorily defined as "to deliver," which means "the actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance." N.J.S.A. 2C:35-2. Here, the only evidence contained in the record regarding defendant's "delivery" of a CDS to the unidentified male was defendant's taped interview statement.

Moreover, the State presented no testimony or proofs to support an inference that defendant delivered a pill to the unidentified male. Petillo's testimony was limited to his observations of the alleged transaction between defendant and Vecchione. Defendant's mere presence in the same vicinity of the unidentified male should not be considered as sufficient legal evidence to bolster the truthfulness of defendant's confession and establish that defendant "delivered" CDS to the unidentified male.

Defendant's Cross-Appeal

On cross-appeal, defendant contends:

THE TRIAL COURT ERRED IN FINDING THAT THE POLICE HAD PROBABLE CAUSE TO ARREST AND SEARCH THE DEFENDANT.

Defendant argues that Petillo was unable to describe with sufficient detail the small objects and amount of money exchanged. We disagree.

The judge held a hearing to determine whether to suppress the evidence of the CDS found on defendant. The judge found that the observations of Petillo were sufficient to establish probable cause to arrest defendant and to search his person.

The Fourteenth Amendment to the United States Constitution and art. 1, par. 7 of the New Jersey Constitution prohibit unreasonable searches and seizures. A warrantless search is presumed invalid unless it is categorized as one of the recognized exceptions to the warrant requirement. State v. Cooke, 163 N.J. 657, 664 (2000). The State, which must demonstrate that a valid search occurred, claimed that the warrantless search of defendant was valid pursuant to the search incident to a lawful arrest exception. See Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).

The standard for establishing probable cause to arrest and probable cause to search are identical. State v. Smith, 155 N.J. 83, 92 (1998). The principal component of probable cause standard "is a well-grounded suspicion that a crime has been or is being committed." State v. Nishina, 175 N.J. 502, 515 (2003). "Probable cause exists where 'the facts and circumstances within . . . [the officer's] knowledge and of which they had reasonably trustworthy information is sufficient in themselves to warrant a [person] of reasonable caution in the belief that' an offense has been or is being committed." Schneider v. Simonini, 163 N.J. 336, 361 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 2d 1879, 1890 (1949)).

Here, we conclude that the judge correctly analyzed the governing principles and his findings are supported by the evidence presented at the hearing. Our standard of review calls for upholding 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. Best, 403 N.J. Super. 428, 433-34 (App. Div. 2008), aff'd, 201 N.J. 100 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Petillo's observations of the exchange between defendant and Vecchione of small objects for money in a high-crime area provided sufficient, credible evidence. See State v. Moore, 181 N.J. 40, 47 (2004).

Defendant also contends that:

THE EXTENDED TERM SENTENCE IMPOSED BY THE TRIAL COURT WAS AN ABUSE OF DISCRETION AND UNDULY EXCESSIVE.

We disagree.

The sentencing judge may, upon the application of the State, impose a discretionary extended term if the defendant has been convicted of a crime of the first, second or third degree and is a persistent offender. N.J.S.A. 2C:44-3a. The sentencing judge must complete four steps prior to imposing an extended term, which include:

[f]irst, the sentencing court must determine whether the minimum statutory predicates for subjecting the defendant to an extended term have been met. Second, the court must determine whether to impose an extended sentence. Third, it must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence. Fourth, it must determine whether to impose a period of parole ineligibility.

[State v. Pierce, 188 N.J. 155, 164 (2006).]

If the sentencing judge determines that a defendant is eligible, "then the top of the range of sentences applicable to the defendant, for purposes of [Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)], becomes the top of the enhanced range." Id. at 168.

Here, the judge held that defendant qualified as a "persistent offender" because of his prior criminal history. The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a to be applicable, i.e., (3) the risk that the defendant will commit another offense; (6) the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; and (9) the need for deterring the defendant and others from violating the law. The judge found no mitigating factors applicable.

It is not our role to sit as a sentencing court. State v. O'Donnell, 117 N.J. 210, 215 (1989). We find that the judge's decision complies with State v. Roth, 95 N.J. 334, 364-65 (1984). The judge correctly followed the sentencing guidelines. Id. at 364. His decision is based on "competent[,] credible evidence in the record." Ibid. The judge did not make such a clear error of judgment that the sentence "shock[s] the judicial conscience." Id. at 365; see also O'Donnell, supra, 117 N.J. at 215-16.

Although four of defendant's six prior convictions are more than ten years old, defendant's reading of N.J.S.A. 2C:44-3a is misplaced. The plain language of the statute requires only that at least one prior conviction or the defendant's release from prison for the recent conviction to have occurred within ten years of sentencing. N.J.S.A. 2C:44-3a. Defendant was convicted of two crimes in 2005, which were within ten years of the underlying conviction. An extended term sentence was appropriate.

We also reject defendant's argument that the judge should have found certain mitigating factor pursuant to N.J.S.A. 2C:44-1b, i.e., (8) the defendant's conduct was the result of circumstances unlikely to reoccur, and (9) the character and attitude of the defendant indicate that he is unlikely to commit another offense. We note that defendant committed an offense while on probation. Finally, application of mitigating factor (2), the defendant did not contemplate that his conduct would cause or threaten serious harm, is not supported by the record. Defendant should have been aware of the consequences of his conduct in light of his previous CDS convictions.

Defendant also contends that:

THE TRIAL COURT ERRED IN ADMITTING DEFENDANT'S STATEMENT TO THE POLICE AS IT WAS NOT VOLUNTARILY MADE AND VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW.

Defendant argues that the record is incomplete regarding any promises or threats to defendant prior to the interrogation. We disagree.

The State must prove beyond a reasonable doubt that a confession was made knowingly, intelligently and voluntarily and not because the defendant's will was overborne. State v. Knight, 183 N.J. 449, 462 (2005). This requires a court to look at the totality of the circumstances, which includes the characteristics of the defendant and the nature of the interrogation. State v. Galloway, 133 N.J. 631, 654 (1993).

After a careful review of the record, we conclude that the judge's decision to admit the taped interview statement is supported by sufficient, credible evidence contained in the record. State v. Johnson, 42 N.J. 146, 162 (1964); State v. Locurto, 157 N.J. 463, 471 (1999). Defendant's allegations have no evidentiary support and the testimony of Petillo negates such contentions. Moreover, defendant was sufficiently apprised of each of his constitutional rights provided pursuant to Miranda and formally waived each right.

 
Affirmed.

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

State v. Maryland, 167 N.J. 471, 771 (2001).

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A-4129-08T4

June 11, 2010