STATE OF NEW JERSEY v. COREY R. NELSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4056-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COREY R. NELSON a/k/a

CARL NELSON,

Defendant-Appellant.

_________________________________

Argued May 16, 2011 - Decided June 1, 2011

 

Before Judges Reisner, Sabatino, and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-09-0809.

 

Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Coe, of counsel and on the brief).

 

Carol M. Henderson, Assistant Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. Henderson, on the brief).

PER CURIAM

After unsuccessfully moving to suppress illegal drugs found on his person by Plainfield police officers, defendant Corey R. Nelson entered into a plea agreement with the Union County Prosecutor's Office. Pursuant to that agreement, defendant pled guilty in January 2009 to third-degree possession of cocaine, a controlled dangerous substance ("CDS"), with the intent to distribute it within a school zone, N.J.S.A. 2C:35-7; and second-degree possession of cocaine with the intent to distribute it within five hundred feet of a public housing facility, N.J.S.A. 2C:35-7.1. As part of the plea agreement, the other seventeen counts of defendant's Union County indictment were dismissed, and he preserved his right to appeal the denial of his suppression motion. The agreement also acknowledged defendant's right to apply for admission into the Drug Court program.

Thereafter, in June 2009, defendant pled guilty to separate charges that were pending against him in Middlesex County for resisting arrest and other non-CDS offenses. Sentencing in the Middlesex County case was deferred until sentence was imposed in this Union County case.1 Meanwhile, defendant's application to be admitted into the Drug Court program in Union County was denied because of the nature and extent of his prior convictions.

On January 15, 2010, the trial court sentenced defendant to two concurrent eight-year prison terms on the school zone and public housing CDS offenses, subject to a forty-four-month period of parole ineligibility. The sentence imposed by the court was consistent with the State's sentencing recommendation as set forth in the plea agreement.

On appeal, defendant presents the following points for our consideration:

POINT I

 

THE TRIAL COURT ERRED IN DENYING [DEFENDANT]'S MOTION TO SUPPRESS EVIDENCE OBTAINED FROM AN UNLAWFUL SEIZURE MADE WITHOUT REASONABLE SUSPICION.

 

A. The Police Stopped [Defendant] In Violation Of His Constitutionally Guaranteed Rights Because They Lacked Reasonable Suspicion That He Was Engaged In Criminal Activity.

 

1. The police did not have reasonable suspicion to detain [defendant] at the outset of the encounter.

 

2. [Defendant]'s actions after the initial encounter did not overcome the lack of reasonable suspicion which existed at the outset because they did not give rise to rational inferences that he was involved in criminal activity.

 

B. The Exclusionary Rule Requires The Suppression Of All Evidence Obtained As [a] Result Of The Illegal Stop.

 

 

POINT II

 

PURSUANT TO THE TERMS OF THE PLEA AGREEMENT, [DEFENDANT] SHOULD BE ALLOWED TO RE-APPLY TO DRUG COURT WITHOUT THE STATE'S OBJECTION.

 

A. The State's Failure To Abide By The Terms Of The Plea Agreement Deprived [Defendant] Of The Benefit Of His Bargain.

 

B. The Appropriate Remedy For The State's Misconduct Is To Enforce The Original Plea Agreement.

 

POINT III

 

THIS MATTER SHOULD BE REMANDED FOR RESENTENCING SO THE TRIAL COURT CAN RECONSIDER THE 44-MONTH PAROLE DISQUALIFIER AND THE DENIAL OF DISCRETIONARY CREDITS FOR THE "DEAD TIME" NELSON SPENT INCARCERATED.

 

A. The 44-Month Parole Disqualifier Was Unwarranted In This Case.

 

B. The Law Allows Discretionary Credits To Be Given In The Interest of Justice.

 

1. Denying discretionary credits for the time [defendant] spent incarcerated pending the disposition of [his] case in Union County would deny him any benefit for 517 days spent in jail.

 

2. The trial court could have found that [defendant]'s incarceration was partially attributable to both sets of charges.

 

 

 

 

3. Denying [defendant] credits unfairly penalizes his choice to exercise his procedural right to challenge the admissibility of the evidence against him.

 

C. This Case Should Be Remanded To The Sentencing Court For Proper Consideration Of [Defendant]'s Parole Eligibility Date At Sentencing.

 

POINT IV

 

BECAUSE [DEFENDANT] POSSESSED THE SAME COCAINE WITH THE INTENT TO DISTRIBUTE WHILE HE WAS IN BOTH A SCHOOL ZONE AND A PUBLIC HOUSING ZONE, THE CONVICTIONS FOR THE TWO DRUG OFFENSES MERGE FOR SENTENCING PURPOSES.

 

For the reasons that follow, we affirm the denial of defendant's suppression motion, as well as his conviction based upon his ensuing guilty plea. We also affirm the sentence imposed. However, with the State's assent, we remand this matter to the trial court for the limited purpose of amending the judgment of conviction so as to merge the school zone offense with the public housing CDS offense.

We first address the trial court's denial of defendant's suppression motion and then shall consider his various arguments respecting his sentence.

I.

The following relevant facts and circumstances were presented at the suppression hearing before Judge James C. Heimlich.

On May 6, 2008, while on patrol in an unmarked vehicle in Plainfield, Detectives Joseph Mulligan and Michael Black received a dispatch report of what was described as "a suspicious person" at a residence located on Johnston Avenue. Detectives Mulligan and Black drove to the neighborhood of the Johnston Avenue address. The detectives then observed a black male, later identified as defendant, walking from the rear and towards the front yard of a nearby residence located on East 2nd Street. Lieutenant Brian Newman, Sergeant Kevin O'Brien, and Detective Thomas Collina from the Plainfield Police department also arrived at the scene.

Detective Mulligan got out of his patrol car and approached defendant, as the detective put it, "to investigate him." The detective identified himself as a police officer. Defendant simultaneously began acting as if he were making a call on his cell phone, appearing to have a conversation. Detective Mulligan testified that he "didn't think anybody was on the other end [of the line.]" Instead, the detective suspected that defendant "was just trying to create a ruse or just act as if he was having a conversation with somebody." According to Detective Mulligan, he "asked [defendant] to step on the other side of the fence so [he] could speak with him[.]" Defendant refused.

Detective Mulligan then "asked [defendant] if he knew anybody who lived at . . . East 2nd [Street] and began to ask him his name[.]" At that point, defendant "appeared to [start] choking on something." Detective Mulligan perceived it as a "fake choke," since he could see that defendant was breathing easily and that he did not seem to be in any distress.

At that point, Detective Mulligan walked over to the other side of the fence. He then detained defendant, who was facing the fence, by holding onto the back of his pants at his belt. In response, defendant "pushed away" from Detective Mulligan, and "tried to break [his] grasp[.]" Defendant began to run, in the direction of the front yard and street. However, Detective Mulligan "kept hanging on to the back of his pants." The detective ultimately succeeded in bringing defendant to the ground. At that point, Mulligan and two of the other officers attempted to arrest defendant. Once the three officers were able to make the arrest, Detective Mulligan searched defendant. He found crack cocaine, heroin, marijuana, and Ecstasy (methylenedioxyamphetamine) pills.

Defendant did not testify at the suppression hearing, but he did call to the stand Detectives Collina and Black. Detective Collina confirmed in his testimony that the call about "a suspicious person lurking in the rear yard[] of . . . Johnson Avenue" came into the police department at about 10:30 p.m., approximately a half hour before defendant was apprehended. Detective Collina could not recall any other information from the description of the suspicious person. Detective Black similarly testified that he could not recall if the police dispatch conveyed any information other than "a suspicious person in a yard[.]"

After considering these proofs from the suppression hearing, Judge Heimlich found that the dispatch report and defendant's observed behavior sufficed to create a reasonable suspicion that a crime was being committed, and that the police therefore had a right to detain him. The judge further determined that, once detained, defendant's attempted flight created a well-grounded suspicion that a crime was being committed. The judge therefore found that the officers had probable cause to arrest defendant and to search him incident to his arrest. Accordingly, the judge denied defendant's motion.

On appeal, defendant argues that the warrantless seizure of drugs from his person by the Plainfield police officers was unconstitutional. He maintains that the motion judge erred in finding that the police had a reasonable suspicion that he was engaged in criminal activity that created a lawful basis to detain him. According to defendant, he merely had been walking in a yard near the house where a suspicious person had been reported. He asserts that he was entitled to disregard Detective Mulligan's investigatory inquiries about his reasons for being outside in the vicinity, and that he was free to walk away from the officers as they approached him. Defendant further contends that Detective Mulligan's perception that he was feigning a cell phone conversation and was choking is insufficient to elevate the situation to one where a stop-and-frisk would be constitutionally justified.

Additionally, defendant argues that his attempt to break away from Detective Mulligan's grip on his belt did not vitiate the unconstitutionality of his initial stop and justify his arrest and the ensuing search. Defendant argues that, applying the standards set forth by the Supreme Court in State v. (Marcellus) Williams, 192 N.J. 1 (2007), and State v. Crawley, 187 N.J. 440, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006), there was no "intervening act" on his part that could purge the taint from his allegedly-unconstitutional detention by the police.

In evaluating this search-and-seizure issue, we recognize that under the Fourth Amendment of the Federal Bill of Rights and under Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981). In this case, such an exception to the warrant requirement is fulfilled under the "stop and frisk" principles enunciated in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Before discussing why we agree with the trial court that the Terry exception applies here, we briefly comment on the interactions that preceded defendant's investigatory stop.

When Detective Mulligan initially approached defendant coming out of the rear yard, the detective had more than ample grounds to conduct what the law describes as a "field inquiry." See State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)) (defining a field inquiry as "the least intrusive encounter, which occurs when a police officer approaches an individual and asks 'if [he or she] is willing to answer some questions'"). The field inquiry was warranted, given the fresh report of a suspicious person in the neighborhood, and defendant's unexplained presence a few houses away from the location noted in the report. In that setting, the police had a justified basis for asking defendant about his identity and why he was in the area.

"A field inquiry is permissible so long as the questions '[are] not harassing, overbearing or accusatory in nature.'" Ibid. Defendant correctly points out that the law provides that during such a field inquiry, "[t]he person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way." State v. Maryland, 167 N.J. 471, 483 (2001) (quoting Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)).

The present case, however, escalated beyond a simple field inquiry as the result of Detective Mulligan's observation of defendant's peculiar behavior in making a feigned phone call on his cell phone and in pretending to choke. The motion judge credited the detective's unrebutted observations of this behavior, and we defer to the motion judge's adoption of the detective's factual narrative. See State v. Locurto, 157 N.J. 463, 474 (1999). Defendant's behavior naturally and logically heightened the perception of the officers that he could be the suspicious person who had been seen in the neighborhood, and that he had been engaged in illegal activity.

There is ample credible evidence in the suppression hearing record to support the motion judge's conclusion that the police had a "well-grounded" suspicion to perform a Terry stop and a protective frisk upon defendant. The Terry doctrine permits a police officer to detain an individual for a brief period, and to pat him down for the officer's safety, if that detention 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." State v. Rodriquez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, an investigatory stop is valid "if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged in] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). We agree with Judge Heimlich that these criteria under Terry were satisfied here.

As part of our analysis, we perceive no unconstitutional infirmity in Detective Mulligan holding onto defendant's belt or pants in order to effectuate a frisk of his person. Given defendant's manifestly evasive conduct in pretending to make a phone call and then pretending to choke when he was approached by Detective Mulligan, there was reason to anticipate that he would be uncooperative in submitting to a protective frisk by the officer. In this particular setting,2 Detective Mulligan acted reasonably in holding defendant in place before commencing a protective frisk. The touchstone of the Fourth Amendment is one of reasonableness, and that standard was met by the police under the particular facts of this case. See State v. Ravotto, 169 N.J. 227, 236 (2001).

Once defendant physically resisted Detective Mulligan and attempted to flee, the situation escalated to give the police probable cause to arrest him. By that point in their interaction with defendant, the police had "a reasonable basis for [a] 'belief' that a crime has been or is being committed." State v. Burnett, 42 N.J. 377, 386-87 (1964); see also State v. O'Neal, 190 N.J. 601, 612 (2007). Coupled with his earlier aberrant behavior, defendant's strenuous effort to run away after he had been lawfully detained by the officers provided them with sufficient grounds to subdue him and place him in handcuffs. The corresponding search of plaintiff's person, which yielded the illegal drugs, was constitutionally authorized without a warrant as a search incident to a lawful arrest. United States v. Robinson, 414 U.S. 218, 226, 94 S. Ct. 467, 472, 38 L. Ed. 2d 427, 435 (1973); State v. Oyenusi, 387 N.J. Super. 146, 153-54 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007).

Our analysis makes it unnecessary to address whether, under Marcellus Williams, supra, and Crawley, supra, defendant's resistance to his apprehension and his disobedience of police orders vitiates an otherwise-unconstitutional stop or arrest. See also State v. (Robert) Williams, 410 N.J. Super. 549, 562-63 (App. Div. 2009) (applying the "attenuation" factors of Marcellus Williams and Crawley), certif. denied, 201 N.J. 440 (2010). In particular, we need not decide whether there was "significant attenuation between unlawful police conduct and seizure of evidence," see Robert Williams, supra, 410 N.J. Super. at 562, under the three-part test that has been fashioned by the Supreme Court. See Marcellus Williams, supra, 192 N.J. at 15 (examining: "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct"); see also State v. Johnson, 118 N.J. 639, 653 (1990). The three-part test is inapplicable here, in light of our conclusion that the police did not engage in any illegal conduct in detaining defendant.

In sum, the police seizure of drugs from defendant was constitutional, and his motion to suppress was correctly denied.

II.

We move on to defendant's various arguments concerning his sentence.

Defendant's primary contention is that the sentencing judge in this case, Judge Perfilio, wrongfully denied him admission into the Union County Drug Court program. Defendant's argument is predicated upon a misreading of the terms of his plea agreement. He argues that the plea agreement should be construed to obligate the Union County Prosecutor to consent to his admission to Drug Court, since the evaluative staff in Middlesex County, where the separate indictment was pending, recommended him for Drug Court. The sentencing judge did not interpret the plea agreement in that manner, nor do we.

It is readily apparent from the plea transcript that the Assistant Prosecutor in this case was dubious about defendant's suitability for the Drug Court program, and that pessimism was clearly made known to defendant and to the court. There is nothing in the written plea agreement, nor in the plea colloquy on the record, stating that the Union County Prosecutor was bound to consent to defendant's participation in Drug Court if staff in another county on a different indictment recommended him for such a disposition. Notably, the Middlesex County indictment did not involve CDS charges, and the Middlesex County sentencing was postponed until sentencing in this Union County case took place.

Moreover, we note that defendant has three prior convictions for drug manufacturing or distribution offenses, negating his eligibility for Drug Court ("special probation") under N.J.S.A. 2C:35-14c(1)(b) without the prosecution's consent. Additionally, defendant pled guilty to a second-degree offense, which also carrying a presumption of incarceration, which renders him ineligible for special probation under N.J.S.A. 2C:35-14c(1)(a) absent the prosecutor's consent. Given these factors, the trial court did not err in imposing a custodial sentence and not admitting defendant to Drug Court, and defendant was not deprived of any entitlement whatsoever under his plea agreement.3 We note that, at his sentencing, defendant did not argue that the prosecutor had promised to consent to his admission to Drug Court.

Defendant's remaining arguments concerning his sentence, including but not limited to his claims of excessiveness, the wrongful denial of jail credits, and an allegedly improper term of parole ineligibility all lack sufficient merit to warrant discussion in this opinion. See R. 2:11-3(e)(1)(E). The sentence imposed by the court was not manifestly unjust and it does not shock the conscience. See State v. Bieniek, 200 N.J. 601, 612 (2010); State v. Roth, 95 N.J. 334, 365-66 (1984).

The judgment of conviction does, however, need to be amended in one minor respect. As the State concedes, the school zone offense and the public housing CDS offense should merge for sentencing purposes. See State v. Parker, 335 N.J. Super. 415, 426 (App. Div. 2000). The case is remanded solely for the purpose of making that stipulated correction.

Affirmed in part, and remanded in part to amend the judgment of conviction.

 

 

1 We refer to the Middlesex County indictment only for incidental reasons concerning the Drug Court issue, as the appeal before us solely involves the Union County indictment.

2 By no means are we suggesting that the police would be constitutionally authorized to seize a citizen by his belt or pants without a well-grounded suspicion to perform a Terry stop or without meeting some other recognized exception to the warrant requirement.

3 Because we do not adopt defendant's unreasonable interpretation of his plea agreement, his reliance on State v. Means, 191 N.J. 610 (2007), and State v. Conway, 416 N.J. Super. 406 (App. Div. 2010), cases in which the defendants were deprived of certain assured benefits of a plea agreement, is misplaced.