STATE OF NEW JERSEY v. MICHAEL J. QUIGLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4309-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL J. QUIGLEY,

Defendant-Appellant.

___________________________

March 17, 2011

Argued November 15, 2010 - Decided

Before Judges C.L. Miniman and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-1040.

Dwayne D. Warren argued the cause for appellant (Schwartz Simon Edelstein Celso & Zitomer, L.L.C., attorneys; Mr. Warren, of counsel and on the brief).

Matheu D. Nunn, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Mr. Nunn, on the brief).

PER CURIAM

Defendant appeals from the March 23, 2009 order of the Law Division finding him guilty, after de novo review, of the disorderly persons offense of possession of less than fifty grams of marijuana, in violation of N.J.S.A. 2C:35-10(a)(4). We affirm defendant's conviction but remand for imposition of sentence, namely a conditional discharge.

The municipal court proceedings began with a motion to suppress, at which the following evidence was presented. On August 2, 2007, Patrolman Scott Haigh of the Rockaway Borough Police Department went to defendant's residence, Room 7 of a boarding house at 9 Wall Street, for the purpose of "[i]nvestigating a harassing phone call complaint." A borough resident identified as "Mr. Gallo" had complained that he received phone calls from defendant threatening to kill him.

Haigh knocked on the door to defendant's room and defendant opened the door. While Haigh was standing outside the room, he smelled a "strong odor of marijuana" and observed "in plain view, sitting on [defendant's] bed . . . a small roach along with a blue pipe, white paper plate." Haigh stated that the bed was approximately ten feet away from where he stood at the doorway. Haigh then asked defendant if he had any other drugs and defendant gave him a small medicine bottle that contained additional marijuana.

Defendant testified that on the day in question, he heard loud pounding on his door by someone who did not identify himself. Defendant went to the door to lock it and Haigh then pushed the door open, "[j]umped in" and "surrounded [defendant] with his arms." Haigh then "started looking at . . . all the medicine" and then "reache[d] down . . . under the side of the bed" and "pulled . . . out" a ceramic plate and told defendant he "got sloppy" and asked if he had "any more[.]" Defendant then gave him the small medicine bottle.

The municipal judge denied defendant's motion to suppress, finding that Haigh was lawfully present at defendant's residence when he saw marijuana in plain view. The judge stated that he found Haigh's testimony credible and defendant's version of events "highly incredible."

Colloquy ensued as to whether defendant wished to enter a conditional plea, preserving his right to appeal the denial of his suppression motion. Because defendant appeared unwilling to proceed in that manner, the judge and counsel determined to proceed to trial on the evidence presented. The judge found defendant guilty of possession of less than fifty grams of marijuana and indicated he was agreeable to sentencing him to a conditional discharge. He imposed a $400 fine; $33 court costs; $50 VCCB, $75 Safe Neighborhood, $50 DARE and $500 DEDR assessments; a $50 lab fee; and a $75 conditional discharge fee. The judge stayed sentence pending appeal.

On trial de novo, the Law Division judge gave "deference to the assessment by the [m]unicipal [j]udge as she listened and observed the witnesses that she did not find [defendant] to be a credible witness." The judge then found that

the officer first of all was properly conducting his duties. He was a police officer. He was investigating a call. So I find he was at the residence in a lawful manner.

The door opens, and I make a finding as I review the record that the officer observed what he knew from his experience to be marijuana . . . .

The judge suppressed the marijuana in the medicine bottle, however, because he "questioned whether or not [defendant] should have been advised that he didn't have to say anything else. He was[n't] officially under arrest, but he certainly wasn't going anywhere." The judge found that defendant "was in a custodial state there . . . so . . . the additional drugs that may have been taken . . . could be thrown out."

Noting that the marijuana found in the pipe and on the paper plate was sufficient to justify a conviction for violation of N.J.S.A. 2C:35-10(a)(4), the judge found defendant guilty. A colloquy then ensued about imposing a conditional discharge as sentence. The State indicated it had no objection. The judge, however, did not pronounce sentence. On March 23, 2009, the judge entered an "Order Upholding the Conviction of the Defendant" that is silent as to sentence.

On appeal, defendant raises the following contentions for our consideration:

POINT I.

STANDARD OF REVIEW

POINT II.

OFFICER HAIGH DID NOT HAVE PROBABLE CAUSE TO ENTER ROOM 7

POINT III.

NO EXIGENT CIRCUMSTANCES EXISTED TO JUSTIFY A WARRANTLESS ENTRY

POINT IV.

THE STATE HAS NOT SHOWN THAT MR. QUIGLEY HAD KNOWLEDGE OF HIS RIGHT TO REFUSE CONSENT TO THE SEARCH OF ROOM 7

POINT V.

ALTERNATIVELY, MR. QUIGLEY SHOULD BE GRANTED A CONDITIONAL DISCHARGE

We turn first to our standard of review in these matters. "'[A]n appellate court reviewing a motion to suppress 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) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). However, "a reviewing court owes no deference to the trial court in deciding matters of law." Id. at 337 (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).

Here, the judge found that the marijuana was admissible pursuant to the "plain view" exception to the warrant requirement.

Pursuant to that exception three elements must be satisfied:

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."

[Id. at 341 (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983) (internal quotation marks removed), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).]

Based upon Haigh's testimony, which both judges found credible, State v. Johnson, 42 N.J. 146, 161 (1964), the Law Division judge found that the officer was lawfully present at defendant's residence investigating a complaint; when defendant opened the door to his room, the officer smelled the odor of marijuana and observed marijuana on defendant's bed ten feet away. The judge's findings clearly satisfied all three requirements of the "plain view" exception.

Because we are satisfied that the marijuana upon which defendant's conviction is based was discovered pursuant to the "plain view" doctrine, we reject as irrelevant defendant's arguments relating to exigent circumstances and consent to search.

We turn to the issue of defendant's sentence. It is clear that the municipal judge intended to sentence defendant to a conditional discharge pursuant to N.J.S.A. 2C:36A-1. Defendant was assessed a conditional discharge fee among the other assessments imposed. The Law Division judge appeared willing to impose a conditional discharge and the State had no objection. However, defendant's sentence was not finally resolved at the trial de novo.

We therefore remand this matter to the Law Division for the imposition of sentence pursuant to N.J.S.A. 2C:36A-1. In his brief, defendant seeks waiver of all fees and assessments due to indigency. We note that the Law Division judge observed that "[o]n[c]e [defendant's] appeal is processed, he can make that application and any other waivers he . . . seeks in terms of fees." Therefore, on remand, defendant is free to pursue his waiver request before the Law Division.

Affirmed in part; remanded in part.