STATE OF NEW JERSEY v. JOHN GEIGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2138-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN GEIGER, a/k/a JOHN J.

GEIGER, III,

Defendant-Appellant.

___________________________________

April 28, 2011

Submitted March 15, 2011 - Decided

Before Judges Messano and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 06-04-0546 and 07-01-0093.

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant John Geiger appeals the denial of his motion to suppress certain evidence seized during the execution of a search warrant at his home, as well as the aggregate sentence of incarceration for eighteen years, with a forty-five-month period of parole ineligibility, resulting from his subsequent guilty plea. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Geiger was indicted on April 5, 2006. The four-count indictment charged him with third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(5)(a), third-degree possession of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-10(a)(1), third-degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(3), and third-degree possession with intent to distribute in a school zone, contrary to N.J.S.A. 2C:35-7. The underlying events were alleged to have taken place on September 5, 2005.

At the time that indictment was returned, Investigator Harry Vandezilver, who was assigned to the Ocean County Narcotics Strike Force (Strike Force), began another investigation involving Geiger, based upon information received from a confidential informant that Geiger was selling drugs from his home and his car. The informant was known to be reliable by the Strike Force, for which the informant had engaged in controlled purchases of narcotics.

Vandezilver's investigation included several controlled drug purchases from Geiger by an undercover officer working with him. In connection with the second such transaction, the undercover investigator contacted Geiger to set up the buy. After they had done so, Geiger was observed traveling to his home, entering and then exiting it shortly thereafter, and then getting into his gold 1999 Honda with Charles Perez. He and Perez drove to the location at which he had promised to meet the undercover officer. Geiger was seen getting into the undercover officer's car, while Perez drove Geiger's car. After the officer and Geiger started to drive, they engaged in a drug transaction.

On another occasion, Vandezilver observed Geiger leave his home and walk to a car in the adjacent parking lot. Vandezilver witnessed Geiger and the occupant of the vehicle engage in a drug transaction.

Based upon information contained in Vandezilver's affidavit, the Law Division issued two warrants on May 24, 2006. The warrants authorized the search of Geiger's residence and automobile, respectively. When the search warrant for Geiger's home was executed, Task Force members recovered 245.3 grams of cocaine, 298.3 grams of marijuana, $31,460 in cash, drug paraphernalia, a silencer, and ammunition.

As a result of Vandezilver's investigation, Geiger was indicted on January 16, 2007. The eleven-count indictment charged Geiger with first-degree possession with intent to distribute cocaine, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count 1); third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1) (counts 2, 5, and 8); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts 3 and 6); third-degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (counts 4 and 7); third-degree possession with intent to distribute marijuana, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count 9); fourth-degree possession of marijuana, contrary to N.J.S.A. 2C:35-10(a)(3) (count 10); and fourth-degree possession of a prohibited weapon, contrary to N.J.S.A. 2C:39-3(c) (count 11).

Geiger filed a motion to suppress the evidence seized from his home, arguing that the May 24 warrant was issued without probable cause and based upon stale information. The motion was heard on June 26, 2007. Neither side presented witnesses, relying instead on the facts as alleged in Vandezilver's affidavit. The motion judge denied the motion, holding that the information from the confidential informant was fully corroborated by the undercover officer's purchases as witnessed by Vandezilver and by Vandezilver's observation of the drug transaction outside of Geiger's home. The judge also concluded that the twenty-four to thirty-day delay between the last incident and the application for the search warrant did not undermine the probable cause established by Vandezilver's affidavit.

On September 4, 2007, Geiger appeared before another judge to enter a guilty plea to one count each from the two pending indictments. The plea agreement, which was negotiated pursuant to the Brimage guidelines,1 called for the State to recommend a sentence of eighteen years, with a mandatory period of parole ineligibility.

Geiger appeared for sentencing on December 3, 2007. On the first-degree possession with intent to distribute from the indictment based on Vandezilver's investigation, Geiger was sentenced to an eighteen-year term of incarceration, with a forty-five-month period of parole ineligibility. The sentencing judge imposed a concurrent four-year term on the third-degree school zone offense from the earlier indictment. This appeal followed.

On appeal, Geiger makes the following arguments:

POINT I: THE DENIAL OF THE MOTION TO SUPPRESS SHOULD BE REVERSED BECAUSE THERE WAS NOT SUFFICIENT EVIDENCE IN THE INVESTIGATOR'S AFFIDAVIT TO SUPPORT A SEARCH WARRANT.

POINT II: THE SENTENCE FOR THE FIRST-DEGREE DRUG OFFENSE SHOULD BE LESS THAN THE MID-POINT OF THE SENTENCING RANGE BECAUSE THIS WAS GEIGER'S FIRST INDICTABLE OFFENSE.

II.

We first address the motion to suppress. Although we normally grant deference to the findings of fact made by a trial judge in connection with a motion to suppress, State v. Elders, 192 N.J. 224, 243-44 (2007), there was no evidentiary hearing in this case. Instead, counsel and the judge relied on the text of Vandezilver's affidavit. Our review of purely legal issues is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

The Fourth Amendment and Article I, paragraph 7 of the New Jersey Constitution afford protection from unreasonable searches and seizures. State v. Davis, 104 N.J.490, 498-99 (1986) (citing United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 1573, 84 L. Ed. 2d 605, 613 (1985); State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). Consequently, "[b]efore issuing any warrant, a judge must be satisfied that there is probable cause to believe that a crime has been or is being committed at a specific location or that evidence of a crime is at the place to be searched." State v. Evers, 175 N.J. 355, 381 (2003); State v. Waltz, 61 N.J. 83, 87 (1972) (describing probable cause as "a 'well grounded' suspicion that a crime has been or is being committed" at a particular place).

In State v. Mosner, 407 N.J. Super. 40, 61 (App. Div. 2009), we observed that

"A search warrant is presumed to be valid, and defendant bears the burden of demonstrating that the warrant was issued without probable cause[.]" [Evers, supra, 175 N.J. at 381](citing State v. Valencia, 93 N.J. 126, 133 (1983)). Therefore, a reviewing court must give substantial deference to a judge's determination that probable cause existed to issue a search warrant. Ibid. When reviewing the validity of a search warrant the court must look to the totality of the circumstances to see if there was probable cause. State v. Novembrino, 105 N.J. 95, 122-23 (1987).

See also State v. Chippero, 201 N.J. 14, 26 (2009).

The focus of Geiger's argument is that Vandezilver's investigation did not sufficiently verify the informant's assertion that Geiger was dealing drugs "out of his home." We disagree. Although there was no assertion that each of the transactions described by Vandezilver involved Geiger's home, there were observations with respect to two of them that would support a reasonable inference that Geiger's home was involved and that it was used to store drugs.

In the second recorded transaction, Geiger arranged the meeting with the undercover officer, returned to his home briefly, and then drove to meet the undercover officer to whom he sold drugs. Geiger argues that he and Perez might have stopped and obtained the drugs somewhere else on their way to complete the sale. There is no evidence of another stop. More significantly, we are satisfied that the facts set forth in Vandezilver's affidavit provide the basis for a well grounded suspicion that Geiger needed to return to his house to retrieve the drugs he sold to the undercover officer. That well grounded suspicion was reinforced in the subsequent transaction, in which Vandezilver observed Geiger leave his home, walk to a car parked nearby, engage in a drug transaction, and then return to his home.

Geiger also argues that there was too long a gap between the end of Vandezilver's investigation, sometime during the week of April 30, and the application for the search warrants on May 24. He cites State in the Interest of R.B.C., 183 N.J. Super. 121, 135 (Cty. Ct. 1981), for the proposition that a substantial delay in applying for the warrant undercuts its validity absent proof that the contraband is still in the same location.

Our core concern in considering a staleness challenge is "'do all the circumstances exhibited . . . reasonably conduce to a belief that the law was being violated at the time the warrant issued?'" State v. Sager, 169 N.J. Super.38, 44-45 (Law Div. 1979) (quoting State v. Blaurock, 143 N.J. Super. 476, 479 (App. Div. 1976)). More specifically, "'where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant'" in determining whether information is stale. Blaurock, supra, 143 N.J. Super. at 479 (quoting United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972)). See State v. Novembrino, 105 N.J. 95, 124 n.12 (1987).

In this case, Vandezilver's affidavit set forth information from a reliable source that was confirmed over a period of almost a month by observations of criminal activity, some of which involved Geiger's home. We are satisfied that there was a reasonable basis in Vandezilver's affidavit for the issuing judge to conclude that Geiger was engaged in criminal activity involving his home of a "protracted and continuous nature," such that there was a "well grounded suspicion" that the activity was still taking place when the warrant was issued.

Consequently, we affirm the denial of Geiger's motion to suppress.

III.

We now turn to Geiger's argument that his sentence was excessive.

Because Geiger pled guilty to a first-degree offense, the sentencing range was between ten and twenty years. N.J.S.A. 2C:43-6(a)(1). The negotiated plea agreement, which was entered into under the Brimage guidelines, called for the State to recommend a sentence of eighteen years, with a forty-five-month period of parole ineligibility.2 That was the sentence imposed by the judge at sentencing.

Geiger argues that the judge should have found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), which requires a finding of "no history of prior delinquency or criminal activity" or that a defendant "has led a law-abiding life for a substantial period of time." The record reflects that Geiger was convicted in Florida of resisting a police officer without violence, Fla. Stat. 843.02 (2010), which carries a penalty of up to one year in prison. Fla. Stat. 775.082 (2010). Under N.J.S.A. 2C:44-4(c), that Florida conviction is considered a crime. Consequently, mitigating factor seven was not applicable at sentencing.

The "paramount" goal of the New Jersey Code of Criminal Justice is "'uniformity in sentencing.'" State v. Blackmon, 202 N.J. 283, 296 (2010) (quoting State v. Kromphold, 162 N.J. 345, 352 (2000)). "[T]he goal of uniformity is 'achieved through the careful application of statutory aggravating and mitigating factors.'" Ibid. (quoting State v. Cassady, 198 N.J. 165, 179-80 (2009)).

"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).

Our review of sentencing decisions is relatively narrow and is generally governed by an abuse of discretion standard. Blackmon, supra, 202 N.J. at 297 (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Blackmon, supra, 202 N.J. at 297 (quoting State v. Roth, 95 N.J. 334, 363 (1984)).

The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to the law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364.

Our review of the sentence in light of the applicable law and the record leads us to conclude that there was no clear error of judgment and nothing to shock the judicial conscience, especially given the application of the Brimage guidelines. The judge adequately explained the reasons for the sentence and his weighing of the mitigating and aggravating factors. The need to deter Geiger and others from future criminal activity, N.J.S.A. 2C:44-1(a)(9), is evident from the nature of the criminal activity involved in this case. Consequently, we affirm the sentence.

1 State v. Brimage, 153 N.J. 1 (1998).

2 See State v. Thomas, 392 N.J. Super. 169, 180-81, certif. denied, 192 N.J. 597 (2007) with respect to a sentencing judge's inability to impose a lower sentence on a Brimage plea, although the judge has the right to reject the plea agreement.