STATE OF NEW JERSEY v. RALPH F. TUOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2444-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RALPH F. TUOR, a/k/a ROBERT S.

CADAVERO,

Defendant-Appellant.

________________________________________________________________

May 25, 2011

Submitted March 22, 2011 - Decided

Before Judges Baxter and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-06-1520.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ralph F. Tuor's motion to suppress evidence was denied after a testimonial hearing. Defendant then entered a plea of guilty to Monmouth County Indictment No. 08-06-1520 charging third-degree possession of heroin, N.J.S.A. 2C:35-10a(1). After waiving his right to have the evidence presented to a grand jury, he also entered a plea of guilty to both counts of Monmouth County Accusation No. 09-05-990, charging second-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree violation of community supervision for life (CSL), N.J.S.A. 2C:43-6.4, as well as Accusation No. 09-06-1393, charging third-degree burglary, N.J.S.A. 2C:18-2.

On July 31, 2009, defendant was sentenced for the robbery to eight years in prison with a mandatory eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, followed by three years of parole supervision. After granting the State's application for an extended term on the indictment pursuant to N.J.S.A. 2C:43-7a(4), the trial court sentenced defendant to five years in prison for possession of heroin to run concurrent to the robbery sentence. He received a concurrent term of eighteen months for violation of CSL and a concurrent five-year term for burglary. Defendant argues that his motion to suppress the heroin should have been granted and that the sentence was excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.

At the motion hearing, Senior Parole Officer Thomas Trovato, who works for the Electronic Monitoring Response Team, defendant and his girlfriend testified to somewhat different versions of the facts leading up to the seizure of heroin in defendant's room at the Neptune Motor Lodge on April 20, 2008. Trovato testified that he was called by the motel manager because defendant's girlfriend had been staying in defendant's room, contrary to the rules of the motel as well as the restrictions of defendant's electronic monitoring program.1 Trovato explained that defendant was in the EMP, which required him to wear an ankle bracelet and permitted him to leave his home only for specific purposes. As one of the conditions of the EMP enumerated in the CSL agreement signed by defendant, a parole officer may visit him at any time. The EMP paid for defendant's accommodations.

Trovato attempted to call defendant after he received notice of the manager's complaint. After he was unable to reach defendant, Trovato went to the Neptune Motor Lodge with another officer. The two officers spoke to both the manager and defendant. They attempted to convince the manager to permit defendant to remain in the motel for a few more days to allow the program an opportunity to obtain another placement for defendant. Trovato testified that, during the half-hour he was in defendant's motel room, he saw through the open bathroom door a white package on the counter near the bathroom sink. He said the bathroom was dark, but he could see clearly into the room because the sun was shining through the bathroom window, illuminating the bathroom counter where the package was located. Based on his extensive narcotics experience, he recognized the package as heroin. He then entered the bathroom and seized the heroin.

Defendant's girlfriend, Jerellyn King, testified that she was the mother of defendant's child and was herself currently incarcerated for possession of drugs. She testified that she left the motel room before the officers arrived. When she left, the toilet was clogged and she closed the bathroom door. She "ple[d] the fifth" with regard to the heroin.

Defendant testified that his girlfriend, King, had come and gone from his room several times that night and that she was under the influence of drugs. He said the bathroom door was closed because he "had this mess in there." Defendant testified that Trovato had to open the bathroom door and search the bathroom before discovering the heroin.

The trial court believed Trovato's testimony that the heroin was in plain view through the open bathroom door, finding his testimony was clear and consistent with his report and defendant s testimony with regard to the lighting in the motel room. The court noted that on direct examination defendant said he had closed the bathroom door, but on cross-examination he changed his testimony to be consistent with King s testimony that she had closed the door. The court found the testimony of King and defendant to be inconsistent on this point and not credible.

Defendant raises the following arguments on appeal,

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS AS OFFICER TR[O]VATO CONDUCTED A SEARCH OF DEFENDANT'S MOTEL ROOM WITHOUT FIRST OBTAINING A WARRANT AND THE HEROIN RECOVERED WAS NOT IN PLAIN VIEW.

POINT II

THE SENTENCE IMPOSED ON DEFENDANT'S CONVICTION OF ROBBERY, SECOND DEGREE, IN VIOLATION OF N.J.S.A. 2C:15-1 WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

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. State v. Mann, 203 N.J. 328, 336 (2010) (citation and internal quotation marks omitted).

Although police observation of an object in plain view does not constitute a search under the Fourth Amendment, police procedures must conform with the Fourth Amendment when seizing such an item. Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022, 2039, 29 L. Ed. 2d 564, 584 (1971). Under our plain view exception to the warrant requirement, a police officer may seize evidence in plain view provided that: (1) the officer was lawfully in the viewing area when observing the item; (2) the officer discovered the item(s) "inadvertently, meaning that he did not know in advance where the evidence was located nor intend beforehand to seize it"; and (3) it was "immediately apparent" to the officer that the item in plain view was "evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002) (citations and internal quotation marks omitted). To satisfy the third prong, the officer must have had probable cause to believe that the evidence is incriminating based on what he reasonably knew at the time. Id. at 213.

Trovato was lawfully in a position to see into the bathroom because a condition of CSL, received and acknowledged in writing by defendant, indicates,

18. I am to permit the assigned parole officer to visit me at any time at home or elsewhere and permit confiscation of any contraband observed in plain view by the parole officer.

Also, as a condition of the EMP, defendant agreed in writing to be monitored and visited at home, work, school or any other appropriate location by my EMP Officer.

The decision not to suppress the evidence flowed from the trial court s determination that Trovato s testimony regarding his plain view observation was credible.

The parole officer came to defendant s room to determine whether he was being removed from the room for violating a rule of the motel. Under the CSL and EMP agreements, defendant agreed to such visits. Thus, finding the heroin was inadvertent and not the purpose of the visit.

Trovato recognized the heroin as illegal drugs due to his observation in light of his experience and training. Thus, the trial court properly denied defendant s suppression motion.

Defendant also argues that his aggregate sentence of eight years in prison, mandatorily subject to NERA, is manifestly excessive even though it is six years less than the maximum under the plea agreement, which was sought by the State at sentencing.

In determining the appropriate sentence to be imposed on a convicted individual, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 507 (2005); State v. Kruse, 105 N.J. 354, 378 (1987). If a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). If a court adheres to the sentencing guidelines, the sentence imposed should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

In State v. Bieniek, 200 N.J. 601 (2010), the Supreme Court reminded appellate judges to avoid substituting their preferences for legally compliant sentencing actions by the Law Division:

Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence.

[Id. at 612.]

Defendant committed the robbery while released on bail on the heroin charge and while on CSL. Finding defendant had five indictable convictions and eleven disorderly persons convictions, the court found aggravating factor three, the risk that defendant will commit another offense, aggravating factor six, the extent of his prior record and the seriousness of at least one of the charges, and aggravating factor nine, the need to deter the defendant and others. The court found no mitigating factors and sentenced defendant close to the midpoint on the robbery charge and to concurrent sentences on the remaining charges. Having granted the State's motion to sentence defendant to a discretionary extended term on the heroin possession charge, the judge nonetheless sentenced him to only five years, a term within the third-degree range and the shortest permissible extended term. This term was made concurrent to the eight years imposed on the robbery conviction. We do not find this sentence to be manifestly excessive as it does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.

Affirmed.

1 As a condition of defendant's conviction for first-degree aggravated sexual assault, he was in the Electronic Monitoring Program (EMP) as a part of his sentence to CSL. N.J.S.A. 2C:43-6.4.