STATE OF NEW JERSEY v. FUQUAN MOORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2400-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FUQUAN MOORE,

Defendant-Appellant.

_____________________________________

March 27, 2012

Submitted March 14, 2012 - Decided

Before Judges Graves and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-02773.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Fuquan Moore appeals from a judgment of conviction following his guilty plea to second-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(b)(2), and second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b). Moore alleges error in the Law Division's denial of his motion to suppress evidence, and he contends his sentence is excessive. We affirm.

I.

The following facts are derived from the testimony and documentary evidence at the suppression hearing. In early May 2008, as part of an investigation related to the sale of illegal drugs, City of Orange Detective Robert Stefanelli engaged a confidential informant to participate in several carefully monitored purchases of crack cocaine from persons inside a building on Chapman Street. Detective Stefanelli provided the informant with a precise amount of money to purchase illegal drugs, checking to make sure that the informant had no additional funds or contraband. Under the detective's surveillance, the informant entered the premises on four occasions, later returning to Detective Stefanelli with what turned out to be field-tested controlled dangerous substances. The informant indicated that the contraband was procured from Moore and another individual inside the building. The informant advised the detective that the transactions were initially conducted at a first-floor apartment, and later at a third-floor apartment, in the building. Based upon this information, Detective Stefanelli applied for and obtained warrants to search the "first floor eastside apartment" and "third floor apartment #5" at the premises.

The search warrants were executed on May 20, 2008. Detective Stefanelli testified that he went to the third-floor apartment identified in the warrant, knocked on the door, and announced the police presence three times. Although no one answered, the detective could hear voices and sounds coming from inside the apartment. He thereupon forced the door open and entered the dwelling with several other police officers. Moore and the apartment's tenant co-defendant Raquita Daniels were inside. The ensuing search found a "357 Smith & Wesson Magnum" on the floor, more than 100 "clear plastic bags containing crack cocaine," and "[three] grams of crack cocaine [on] a plate."

Daniels testified for the defense. She indicated that when the police arrived at her apartment on May 20, she was inside her bedroom. She testified to the following:

The police never knocked. They just bust in. I told you, I heard the dog barking, [be]cause we have a dog. After the dog was barking, the police just bust in. They never knocked; they never did nothing, and they didn't have no search warrant.

Daniels denied that either she or Moore were involved in any illegal activities.

Moore also testified. He stated that when the police entered the apartment, he was sitting on the couch eating chicken parmesan and spaghetti. He testified that the police "burst through the door" without knocking. Furthermore, he said there was no gun on the floor, and he never "[sold] drugs out of [the] apartment."

Judge Joseph C. Cassini, III, denied Moore's motion to suppress, explaining his reasons in a two-page letter opinion. In resolving the factual dispute whether the police announced their presence and knocked before entering the apartment, Judge Cassini found "that the police did knock and announce their presence prior to entering the premises to execute the search warrant." Although the judge did not expressly make credibility findings, he noted the contradictory versions of the events of May 20, and found, "after hearing a male voice inside the apartment and receiving no response to the knock, the police acted reasonably in breaching the door to execute the search warrant." Moore later pled guilty and was sentenced. This appeal followed.

II.

On appeal, Moore raises the following issues for our consideration:

POINT I: THE DEFENDANT'S RIGHT TO A REASONABLE SEARCH AND SEIZURE AS GUARANTEED BY THE FOURTH AMENDMENT TO THE U.S. CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ISSUANCE OF A SEARCH WARRANT BASED ON AN AFFIDAVIT CONTAINING MATERIAL MIS-REPRESENTATIONS OF FACT.

POINT II: THE DEFENDANT'S RIGHT TO A REASONABLE SEARCH AND SEIZURE AS GUARANTEED BY ART. 1 PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE POLICE'S UNREASONABLE EXECUTION OF THE SEARCH WARRANT.

POINT III: THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

We apply a limited standard of review on a motion to suppress evidence. State v. Robinson, 200 N.J. 1, 15 (2009). 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. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). On the other hand, our review of the judge's conclusions of law is plenary, as we owe no deference to his application of the governing law. State v. Gandhi, 201 N.J. 161, 176 (2010).

Moore first takes issue with the search warrant, claiming that it was based upon a material misrepresentation. The misrepresentation alleged is that Detective Stefanelli had no reasonable basis to expand his investigation from the first floor of the subject building to the third floor, even though the informant had indicated that retail sales were made on the first floor and wholesale quantities of controlled dangerous substances were stored in the third-floor apartment. This information was substantiated when the informant was directed to the third floor to purchase contraband during one of the monitored purchases overseen by Detective Stefanelli.

Moore further contends that the informant must have been lying, or at least was unreliable, when she "said that drugs were being sold out of [the first floor] when Stefanelli was directing her to make a purchase from [the third floor]." Furthermore, according to Moore, this "shows that Stefanelli was aware that the information provided by the [informant] was unreliable. Yet he claimed in the [search warrant] affidavit that the [informant] was 'reliable.'" Our review of the affidavit, together with the testimony from the suppression hearing, does not support Moore's illogical conclusions.

New Jersey follows the United States Supreme Court's "totality of the circumstances test for determining whether a search warrant is based upon probable cause." State v. Keyes, 184 N.J. 541, 554 (2005) (citing Illinois v. Gates, 462 U.S. 213, 230-32, 103 S. Ct. 2317, 2328-29, 76 L. Ed. 2d 527, 543-44 (1983) and State v. Novembrino, 105 N.J. 95, 122 (1987)). Courts are permitted to rely upon information provided to police by informants in order to find probable cause. Keyes, supra, 184 N.J. at 555 (citation omitted). When examining such a tip, "the issuing court must consider the 'veracity and basis of knowledge' of the informant as part of its 'totality' analysis." State v. Jones, 179 N.J. 377, 389 (2004) (quoting Novembrino, supra, 105 N.J. at 123).

Here, Detective Stefanelli based his request for a search warrant on information gathered from the informant, which was corroborated through monitored sales of controlled dangerous substances by Moore at the Chapman Street building from the two apartment units. This was constitutionally adequate to support the necessary probable cause for the search warrant.

Next, Moore contends that the execution of the search warrant was so imperfect that the fruits of the search must be suppressed. Specifically, he argues that the police forced their way into the apartment without first knocking and announcing their presence. Although those contentions were rejected by Judge Cassini, who saw and heard the live testimony, Moore argues that "[t]he police had the opportunity to prove that they did comply. . . . All they needed to ensure proof of compliance was a simple video capture of the entry on a cell phone. Instead the police did nothing."

We are satisfied that Judge Cassini properly evaluated the evidence that was presented to him. We are unaware of any decisional law requiring the police to videorecord the execution of a search warrant in order to vouchsafe law enforcement's version of events. Moore offers no authority for such a duty, but then nevertheless vaguely suggests that the motion court should have applied an adverse inference against the State because of the absence of video proof. We are wholly unpersuaded by this argument.

Lastly, Moore contends that the imposition of an aggregate sentence of six years with three years of parole ineligibility, while lawful, "is excessive: the defendant should have been sentenced to a term of five years."1 We find no errors in the manner of imposing the sentence and its duration is not conscience-shocking.

The New Jersey Code of Criminal Justice prescribes a "system for 'structured discretion' in sentencing." State v. Bieniek, 200 N.J. 601, 607 (2010). Our review of a sentence is guided by State v. Roth, 95 N.J. 334, 364-65 (1984) and its progeny, which look to whether: (1) the sentencing guidelines were violated, (2) the aggravating and mitigating factors were based upon competent credible evidence in the record, and (3) the sentence is so clearly unreasonable as to shock the judicial conscience.

In reviewing a sentence, we "may not substitute [our] judgment for that of the trial court." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Evers, 175 N.J. 355, 386 (2003)). As stated by the Court in Cassady:

An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience.

[Id. at 180 (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)) (citations omitted).]

Moore argues that it was error for Judge Cassini to find that N.J.S.A. 2C:44-1(a)(3), (6), and (9) applied, and to conclude that no mitigating factors were present. Specifically, he urges the existence of mitigating factors twelve, N.J.S.A. 2C:44-1(b)(12) (cooperation with law enforcement) and two N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct would cause or threaten serious harm). The record amply supports all of the sentencing judge's findings. We discern no support in the record for any additional mitigating factors. See State v. Miller, 205 N.J. 109, 127 (2011). Moreover, the record supports the finding that the aggravating factors predominated over the absence of mitigating factors.

Affirmed.

1 Moore's plea arrangement exposed him to a sentence of seven years, with a forty-two-month parole disqualifier.