STATE OF NEW JERSEY v. GARY A. BELTRAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5908-07T45908-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY A. BELTRAN,

Defendant-Appellant.

 
 

Submitted December 2, 2009 - Decided

Before Judges J.N. Harris and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-03-00146-I.

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

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (Daryl A. Williams, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Gary A. Beltran was convicted by a jury of third-degree conspiracy to distribute cocaine and/or possession of cocaine with the intent to distribute, N.J.S.A. 2C:5-2; N.J.S.A. 2C:35-5(a)(1). Judge Julie M. Marino granted the State's application for an extended term pursuant to N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3, and imposed a five-year sentence with two years of parole ineligibility. Defendant appeals the conviction, arguing that several harmful errors were committed at trial for which he is now entitled to a new trial. We affirm.

With intelligence obtained from a practiced and reliable informant, then-Detective Thomas Fisher of the Raritan Police Department contacted Somerset County Prosecutor's Office Detective Christopher Shearer about allegedly impending criminal conduct. Fisher informed Shearer that an individual named Kareem Archer would be going to a rooming house in Raritan to re-package crack cocaine in room two with another individual named Robert Wechsler, and that Archer would enter the structure through a door located near an adjacent parking lot.

Shearer proceeded to establish surveillance near the address on December 12, 2006. State Police Officer David Penna positioned himself directly in front of the building, and had a view of the rear door that Archer was expected to use.

Later that evening, Archer arrived in a red pickup truck driven by defendant. Penna witnessed Archer and defendant enter the building, and when they finally exited after some twenty minutes, other officers proceeded to apprehend Archer and defendant at the scene.

Shearer and Fisher went to room two, and Robert Wechsler answered the door. Shearer advised Wechsler that a narcotics investigation was underway. Wechsler told Shearer that "he had a quantity of loose crack cocaine, some crack pipes, and some empty plastic sandwich bags on his dresser." With Wechsler's permission, Shearer seized the items as evidence.

Archer was arrested and taken to the Raritan police headquarters. There, he produced "a bag from his buttocks" containing twenty-four individual "baggie tied end knots of cocaine."

Meanwhile, when Shearer returned to the parking lot, defendant whispered to him, "I want to cooperate, and I want to speak with you but I want to do it away from 43 away from this residence." Shearer and Fisher thereupon drove defendant to local police headquarters for an interview.

Upon arrival at the police station, Shearer placed defendant in an interview room, and after obtaining personal history information, read defendant his rights from "a standard Miranda warning form." After defendant signed the form waiving his Miranda rights, defendant gave a taped statement of what had occurred that day. The State played the nine-minute recording during the trial, and provided transcripts to the jury.

According to defendant's statement, defendant often drove Archer, known on the streets as "Sal," to various locations to sell drugs in exchange for cocaine. In order to obtain cocaine for himself on December 12, 2006, defendant called Archer "to see if he needed a ride."

Before going to the rooming house in Raritan, defendant drove Archer to Somerville and watched as Archer sold crack shavings from one large piece of cocaine. At the rooming house defendant accompanied Archer into the building, and saw Archer give "Bob" pieces of crack in exchange for thirty dollars. Another man entered the room and defendant observed Archer "front[] the other man twenty dollars worth of cocaine," meaning Archer turned over the cocaine for no immediate payment. Archer then broke up a large piece of cocaine, and placed approximately twenty pieces of crack into fifteen individual bags, using only the corners of the bags. Archer transferred the baggies to one large bag, and "put it somewhere on him." In exchange for driving Archer, defendant expected to receive one of the individual bags of cocaine, which he estimated to be worth approximately twenty dollars, for his personal use.

Defendant elected not to testify at trial. No money, drugs, or drug paraphernalia were found on defendant's person or in his vehicle at the time of his arrest.

On appeal, defendant raises the following issues:

POINT I

THE POLICE DID NOT HAVE A REASONABLE AND ARTICULABLE SUSPICION OF CRIMINAL ACTIVITY TO JUSTIFY AN INVESTIGATORY DETENTION OF GARY BELTRAN AND KAREEM ARCHER AS THEY NEVER CORROBORATED THE INFORMANT'S TIP, THEREFORE ANY EVIDENCE UNCOVERED AS A RESULT OF THIS UNLAWFUL SEIZURE SHOULD HAVE BEEN SUPPRESSED.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS FOR BURGLARY, LARCENY, ASSAULT, COMMUNICATING THREATS AND EMBEZZLEMENT COULD BE USED TO IMPEACH HIS CREDIBILITY THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL. U.S. CONST. AMEND. V, VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 9 AND 10.

POINT III

THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE THE DEFENDANT'S TAPED STATEMENT AS THE STATE FAILED TO ESTABLISH THAT THE DEFENDANT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVED HIS MIRANDA RIGHTS.

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE STATE DID NOT ESTABLISH A PRIMA FACIE CASE WITH RESPECT TO THE CHARGES IN THIS MATTER.

POINT V

THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND CONSTITUTED PLAIN ERROR (NOT RAISED BELOW).

POINT VI

THE FAILURE OF TRIAL COUNSEL TO MOVE FOR A NEW TRIAL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT VII

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE TRIAL COURT'S DISCRETION AS THE TRIAL JUDGE FAILED TO SUBSTANTITATE HER DECISION TO IMPOSE AN EXTENDED TERM AND FAILED TO PROPERLY BALANCE AGGRAVATING VERSUS MITIGATING FACTORS, THEREFORE THE SENTENCE MUST BE MODIFIED BY THE REVIEWING COURT.

After a careful review of the record and counsel's arguments in light of the governing law, these issues are not sufficient to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following brief comments regarding defendant's Points I, IV, VI, and VII.

Defendant asserts several defects in the proceedings below relating to the admissibility of evidence seized on December 12, 2006. When reviewing the Law Division's determination to deny a motion to suppress, our role 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,'" and also must give deference to its credibility findings. State v. M.A., 402 N.J. Super. 353, 364 (App. Div. 2008) (quoting State v. Elders, 192 N.J. 224, 243 (2007)); State v. Locurto, 157 N.J. 463, 474 (1999). "An appellate court should not disturb the trial court's findings merely because 'it might have reached a different conclusion were it the trial tribunal.'" State v. Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Rather, the trial court's findings should be affirmed unless they "are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).

We find that the determinations made regarding the use of the informant's tip, the seizure of evidence in the rooming house, the collection of evidence from Archer, and the statement of defendant at police headquarters were all adequately supported and not in contravention of defendant's rights.

"Information relayed by informants may constitute a basis for probable cause." State v. Smith, 155 N.J. 83, 92, cert. denied sub nom., New Jersey v. Smith, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998). Though hearsay, such information "may provide a sufficient basis for probable cause, so long as a substantial basis for crediting the hearsay is presented." Smith, supra, 155 N.J. at 92 (internal quotations and citation omitted). "An informant's veracity may be established in a variety of ways," including "the informant's past reliability." State v. Zutic, 155 N.J. 103, 111 (1998). As to an informant's basis of knowledge, "if the informant does not identify the basis of knowledge, a reliable basis of knowledge may nonetheless be inferred from the level of detail and amount of hard-to-know information disclosed in the tip." Ibid. "[I]ndependent corroboration of hard-to-know detail in the informant's tip may also greatly bolster the tip's reliability." Ibid.

Here, the record fully supports the finding that such corroborative effort was undertaken, as evidenced by the informant's specification of identifying two of the three involved individuals by name, the room Archer was expected to visit, the time at which Archer would arrive at the boarding house, Archer's purpose for visiting, and approximately how long Archer would remain in that location.

The prohibition on warrantless searches incorporates many exceptions, which include, among others, plain view and consent. State v. Pena-Flores, 198 N.J. 6, 18 (2009). The plain view doctrine applies when three requirements are met:

First, the police officer must be lawfully in the viewing area. Second, the officer has to discover the evidence "inadvertently," meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. Third, it has to be "immediately apparent" to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.

[State v. Bruzzese, 94 N.J. 210, 236 (1983) (internal citations omitted), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).]

The requirements for this plain view exception were satisfied in this case because the officers' right to visit Wechsler's room was not disputed, and the illegal nature of the contraband was immediately apparent. Although the informant's tip likely gave the officers reason to suspect that drug-related evidence would be found, there is no indication that the officers went to the room seeking anything in particular. Indeed, even if the plain view doctrine did not apply, it was undisputed that Wechsler volunteered the location of the seized evidence and essentially consented to the officers' search of the room.

In deciding whether the trial court was correct in denying defendant's motion to acquit, the appellate court must take into account only the evidence developed during the State's case, unaided by what defendant later produced at trial. State v. Lemken, 136 N.J. Super. 310, 314 (App. Div. 1974), aff'd, 68 N.J. 348 (1975). A court may "on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction." R. 3:18-1. In State v. Reyes, 50 N.J. 454 (1967), the Court held that

the broad test for determination of such an application is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. . . . More specifically, the question the trial judge must determine is 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.

[Id. at 458-59.]

Under this standard, a court should grant a motion to acquit if it determines that the evidence fails to establish any of the enumerated elements of an offense. See State v. Zeidell, 299 N.J. Super. 613, 622 (App. Div. 1997) (acquittal was warranted because although evidence established that defendant was guilty of lewdness, it did not satisfy the statutory elements of sexual assault), rev'd on other grounds, 154 N.J. 417 (1998).

Specifically, N.J.S.A. 2C:35-5(a)(1) provides in pertinent part that "it shall be unlawful for any person [to] knowingly or purposely . . . distribute or dispense [a controlled dangerous substance], or to possess or have [a controlled dangerous substance] under his control with intent to . . . distribute or dispense." An individual is guilty of conspiring to violate N.J.S.A. 2C:35-5(a)(1), if

with the purpose of promoting or facilitating its commission he: (1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

[N.J.S.A. 2C:5-2(a).]

There was extensive evidence in this case for a juror to readily conclude beyond a reasonable doubt that defendant conspired with Archer, enabling him to commit the offenses charged. Defendant's statement explained in detail the chauffeuring he provided to Archer over several occasions and specifically on the day in question, as well as the illegal method of payment tendered for his services. This was sufficient to support the State's theory of conspiracy.

To establish a prima facie case of ineffective assistance of counsel, defendant must show that "counsel's performance was deficient" and that "but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 694; 104 S. Ct. 2052, 2064, 2068; 80 L. Ed. 2d 674, 693, 698 (1984)). If the defendant establishes a prima facie case, an evidentiary hearing should be conducted to determine whether "the evidence presented at the hearing was sufficient to undermine confidence in the outcome of the initial trial." State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000).

Claims of ineffective assistance of counsel are generally best "suited for post-conviction review because they involve allegations and evidence that lie outside the trial record and, therefore, cannot reasonably be raised in a prior proceeding." Id. at 138 (citing State v. Preciose, 129 N.J. 451, 460 (1992)). For these reasons, such claims are not ordinarily entertained on direct appeal. State v. Allah, 170 N.J. 269, 285 (2002). Exception may be made where the trial record "discloses the facts essential to [an] ineffective assistance claim." Ibid.

Defendant cannot establish a prima facie case for ineffective assistance of counsel, because even if his attorney's failure to make a motion for a new trial under the circumstances was deficient, that deficiency was not prejudicial inasmuch as it would not have influenced the outcome in this matter. See id. at 288 (citations omitted) ("[b]ecause a properly preserved claim could not have led to a reversal, counsel's negligent failure to preserve the claim of grand jury violations did not prejudice the defendant[.]"). As discussed, the evidence presented in this case fully supported the jury's finding that defendant conspired to aid Archer in the distribution and/or possession of cocaine with intent to distribute. A motion for a new trial would have been necessarily denied, and would have amounted to an exercise in futility, and would certainly not have affected the outcome in this matter.

Appellate review of a sentence is governed by the abuse of discretion standard. State v. Roth, 95 N.J. 334, 363-64 (1984).

An appellate court should not substitute its judgment for that of the trial court, and the sentence imposed should be affirmed as long as it appears it is reasonably supported by the relevant factors. Id. at 365-66.

The New Jersey Supreme Court explained the "multi-step process" for imposing an extended sentence pursuant to N.J.S.A. 2C:44-3 in State v. Dunbar, 108 N.J. 80, 89 (1987):

First, 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. Finally, it must determine whether to impose a period of parole ineligibility.

[Ibid.]

The later case of State v. Pierce, 188 N.J. 155 (2006), modified the Dunbar analysis, and held that the range of the imposable sentence "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." Id. at 169. Once that base term is determined, a sentencing court may, if "clearly convinced that the aggravating factors substantially outweigh the mitigating factors," impose a minimum period of parole ineligibility "not to exceed one-half of the [base] term" imposed. N.J.S.A. 2C:43-6(b); N.J.S.A. 2C:43-7(b).

In accordance with Pierce, defendant was eligible for a sentence between three and ten years in duration. See N.J.S.A. 2C:43-6(a)(3) (fixing the range for a third-degree offense between three and five years); N.J.S.A. 2C:43-7(a)(4) (fixing the extended range for a third-degree offense between five and ten years); Pierce, supra, 188 N.J. at 165-66.

We are satisfied that not only were the court's findings with regard to the extended term apt, its analysis of aggravating and mitigating factors was sufficient. See State v. Cassady, 198 N.J. 165, 180 (2009) (sentencing court is required to carefully weigh all the aggravating and mitigating factors, and explain on the record how it arrived at the sentence it imposed).

Admittedly, while the court's refusal to consider any mitigating factors gives us pause, this refusal is inconsequential. For example, contrary to defendant's claim, an individual's drug dependency is generally not a mitigating factor. See State v. Ghertler, 114 N.J. 383, 389-90 (1989) (declining to find that the defendant's drug addiction mitigated his criminal conduct). Additionally, courts do not typically treat even severe illness as an excessive hardship. See State v. Lebra, 357 N.J. Super. 500, 511-12 (App. Div. 2003) (no hardship where the defendant was diagnosed with a brain tumor because there was no "indication that defendant's medical needs could not be adequately met while incarcerated.").

The court's failure to consider the fact that defendant cooperated with police also does not constitute a basis for reversible error. Even though defendant did not specifically raise his cooperation with police as a mitigating factor during sentencing we cannot say that the trial court abused its discretion in failing to sua sponte consider the factor on its own. But cf. State v. Dalziel, 182 N.J. 494, 506 (2005) (remanding for resentencing because "[t]he trial judge's failure to acknowledge [the defendant's] cooperation, which was fully supported by the record . . . was error."). The sentencing calculus in this case comported with mainstream principles of fairness and additionally conformed to the principled manner of imposing criminal sanctions as required by our federal and state constitutions, as well as the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9.

 
Affirmed.

The sentence was to be served concurrently with an earlier three-year sentence defendant received for third-degree theft by deception, N.J.S.A. 2C:20-4.

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

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A-5908-07T4

January 7, 2010