STATE OF NEW JERSEY v. CARLTON INGRAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4646-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLTON INGRAM,

Defendant-Appellant.

___________________________________

January 11, 2012

Submitted January 5, 2011 - Decided

Before Judges Fuentes and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-01-0111.

Yvonne Smith Segars, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Noelle V. Fiorentino, Assistant Prosecutor, on the brief).

PER CURIAM

Following his unsuccessful attempt to suppress a gun and dum-dum bullets seized by police from the jacket he discarded while police were chasing him, defendant Carlton Ingram proceeded to trial. On January 16, 2009, a jury convicted him of third degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b (count one),1 and fourth degree unlawful possession of dum-dum bullets, N.J.S.A. 2C:39-3f (count two). The jury acquitted defendant of fourth degree resisting arrest by flight, N.J.S.A. 2C:29-2a (count three). After the jury returned its verdict, defendant waived a jury trial on second degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (count four), and the trial judge convicted him on that charge.

The judge sentenced defendant on March 6, 2009, to an extended prison term of twelve years, with six years of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count four. The judge also sentenced defendant to a term of five years imprisonment on count one, and eighteen months on count two, those sentences to run concurrently with the sentence on court four. The judge imposed appropriate fines and penalties.

On appeal, defendant raises four points:

POINT I THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO SUPPRESS AS THE STATE FAILED TO ESTABLISH A "SIGNIFICANT ATTENUATION" BETWEEN THE UNCONSTITUTIONAL STOP OF DEFENDANT AND THE SEIZURE OF THE WEAPON HE DISCARDED AS A RESULT OF THAT STOP. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7.

POINT II THE TRIAL COURT FAILED TO ADEQUATELY RESPOND TO A SPECIFIC JURY QUESTION DURING DELIBERATIONS THEREBY DEPRIVING THE DEFENDANT OF A FAIR TRIAL. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7. (Not Raised Below)

POINT III THE TRIAL JUDGE'S REQUIREMENT THAT THE DEFENDANT ADMIT GUILT AT SENTENCING VIOLATED DEFENDANT'S RIGHTS. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7. (Not Raised Below)

POINT IV THE SENTENCE IMPOSED WAS EXCESSIVE, REQUIRING REDUCTION. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

We affirm.

I.

The State presented the testimony of Jersey City Police Officer Eamon Nally at the suppression hearing. His testimony revealed the following facts. Nally, who had more than twelve years of law enforcement experience, and his partner, Officer Ivan Rosario, were assigned to the "gang unit" to investigate targeted high crime areas for drug trafficking and weapons offenses. Nally had served in the unit for two and one-half years. On June 6, 2007, at 6:40 p.m., Nally, Rosario and five other members of the unit, wearing plain clothes and traveling in four unmarked police cars, drove to Ludlow and Sheffield Streets in response to information received by another gang unit detective about heavy narcotics trafficking occurring in the area that evening. Nally believed the information had "more to do . . . with a specific address on Sheffield."

According to Nally, the four or five block span around Ludlow and Sheffield Streets was an "extremely violent area" where the police had made hundreds of arrests for narcotics and weapons offenses. The area was "controlled by the Bloods street gang." Most of the individuals in the area were "extremely familiar" with the unmarked police cars and also knew "a lot" about the individual members of the Jersey City police gang unit, so it was no "secret" when the unit members were in the area. Although wearing plain clothes that evening, Nally and Rosario also wore exposed badges identifying them as Jersey City police officers.

The unit members parked the four unmarked police cars in the middle of the intersection, exited the vehicles, and began to investigate the area. Nally noticed a group of approximately four or five black males standing in a semicircle approximately fifty feet away on Ludlow, behind a parked Pontiac. He began to walk toward them and when he was approximately twenty-five feet away, the individuals began to disperse; two walked in one direction, the others walked in the opposite direction and entered a house on Ludlow Street. As Nally continued to walk toward where the group had been standing, defendant, who was seated in the parked Pontiac, opened the door when Nally was approximately ten feet from the car.

Nally had not seen defendant sitting in the car, so he was a little bit surprised when the door opened and he saw defendant. Defendant looked like he was going to get out of the car, so Nally said, "Partner, do me a favor, stay in the car." Both Nally and Rosario's badges were clearly displayed. Defendant made eye contact with Nally but ignored him, stood up, and began to walk away from the car. Nally said, "stop, police," but defendant ignored Nally's command and began running northeast on Ludlow.

Nally and Rosario chased defendant, who ran into an alley or driveway2 at the corner of Chapel and Ludlow, just before Chapel. While Nally and Rosario were chasing him, defendant removed and dropped his jacket. Nally picked up the jacket, noticed that it was particularly heavy, found a loaded .45 caliber handgun in the jacket pocket, and yelled "gun" to Rosario. Defendant continued to run with Rosario in pursuit. Rosario testified at trial that defendant ran down another driveway and onto Chapel Avenue where he took a bicycle another person had been riding, turned onto another street, and rode off. Rosario broadcast defendant's description and another officer in a patrol car, responding to the police broadcast, apprehended defendant.

The trial court denied defendant's suppression motion, determining under the totality of circumstances that the officers had "a reasonable suspicion of criminality" and "greater latitude to subject a citizen, in this case the defendant, to an investigatory stop."

At trial, the State called three witnesses: Nally, Rosario and Officer Carlos Castillo. Nally's testimony was, for the most part, consistent with his testimony at the suppression hearing. He added that when he removed the gun from defendant's jacket, he also removed a set of keys. Rosario's testimony was substantially consistent with that of Nally. Castillo testified that he was on patrol in a marked vehicle at approximately 6:40 p.m. when he received the broadcast of a foot pursuit. In response, Castillo drove to the area where defendant had last been seen, spotted a suspect matching the description in the broadcast, and apprehended defendant. Rosario arrived shortly thereafter and identified defendant.

During deliberations, the jury posed a written question to the trial court concerning the keys found in defendant's jacket. The jury asked: "Where did they go? [A]nd/or to whom do they belong?" Outside of the presence of the jury, the trial court proposed to counsel that he tell the jury that the answers to the questions were "not in evidence" and that the jury should not speculate. Counsel agreed. Defense counsel specifically stated, "I'm fine. I said, sure." The judge then instructed the jury:

Well, addressing the first part of your question, that question being, where did the keys go? The answer to your question is not in the evidence. And you are forbidden from speculating. And/or [to] whom did they belong? That's not in the evidence either. It's not in the testimony. It's not in the evidence. You can't speculate as to that either.

Defense counsel did not object to the court's instruction.

II.

Our scope of review of the trial court's factual findings and credibility determinations in a suppression hearing is limited. We must uphold the court's factual findings if they are "supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007) (further citation omitted)). We "should give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). Our review of a judge's legal conclusions, however, is plenary. Handy, supra, 206 N.J. at 45.

The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect against "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, 7. "A seizure occurs if, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" State v. Sloane, 193 N.J. 423, 429 (2008) (quoting State v. Stovall, 170 N.J. 346, 355 (2002)).

Law enforcement officers violate neither the federal nor the state constitution when they conduct a field inquiry "'without grounds for suspicion.'" State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)). "A 'field inquiry' is the least intrusive encounter, and occurs when a police officer approaches an individual and asks 'if [the person] is willing to answer some questions.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). If the officers do not prohibit an individual's right to move, the inquiry does not amount to detention. State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973).

On the other hand, "an investigatory stop, sometimes referred to as a Terry3 stop, is valid 'if it 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.'" Pineiro, supra, 181 N.J. at 20 (quoting Nishina, supra, 175 N.J. at 510-11). The suspicion necessary to conduct a lawful Terry stop "need not rise to the probable cause necessary to justify an arrest." Ibid. (internal quotation marks and citation omitted). However, "[u]nless the totality of the circumstances satisfies the reasonable and articulable suspicion standard, the investigatory stop 'is an unlawful seizure, and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule.'" State v. Mann, 203 N.J. 328, 339 (2010) (quoting Elders, supra, 192 N.J. at 247).

Nevertheless, N.J.S.A. 2C:29-2a(2) makes it a fourth degree crime for a person "by flight, [to] purposely prevent[] or attempt[] to prevent a law enforcement officer from effecting an arrest."

By the express terms of the statute, a person has no right to resist arrest by flight or any other means, even if the arrest constitutes an unreasonable seizure under the constitution. N.J.S.A. 2C:29-2(a) provides: "It is not a defense to a prosecution [for resisting arrest] that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance." That provision codified this State's then-existing common law, which required that a person submit to an arrest, even if illegal.

[State v. Crawley, 187 N.J. 440, 453 (2006), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).]

In Crawley, the Court explained that a "person has no constitutional right to endanger the lives of the police and public by fleeing or resisting a stop, even though a judge may later determine the stop was unsupported by reasonable and articulable suspicion." Id. at 458. Discerning "no practical or public-policy-based distinction between fleeing from an arrest and fleeing from an investigatory detention," id. at 459, the Court held "that a defendant may be convicted of obstruction of the administration of justice under N.J.S.A. 2C:29-1 when he flees from an investigatory stop, despite a later finding that the police action was unconstitutional." Id. at 460.

In State v. Marcellus Williams,4 the Court held that evidence police seized while arresting a person fleeing an unconstitutional investigatory stop is admissible if "'the authorities have obtained the evidence by means that are sufficiently independent to dissipate the taint of their illegal conduct.'" 192 N.J. 1, 15 (2007) (quoting Johnson, supra, 118 N.J. at 653). To determine whether the seized evidence "is sufficiently attenuated from the taint of a constitutional violation, we look to three factors: (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. Ibid. (internal quotation marks and citations omitted). The offense a defendant commits by fleeing the stop "is insufficient by itself to establish significant attenuation." See Robert Williams, supra, 410 N.J. Super at 552.

With those principles in mind, we address defendant's argument in Point I. Defendant contends that the trial judge erred by denying his motion to suppress because the State failed to establish a significant attenuation between the unconstitutional stop of defendant and the seizure of the weapon defendant discarded. The State argues that the officers' decision to stop defendant was supported by their reasonable suspicion of criminal activity. The State also argues that if the officers' initial stop of defendant is deemed to be constitutionally impermissible, the State nonetheless established a significant attenuation between the initial stop and the seizure of the discarded handgun.

It is well-settled that a person's flight upon seeing police, without more, does not constitute reasonable suspicion to support a stop. Pineiro, supra, 181 N.J. at 26; State v. Tucker, 136 N.J. 158, 168-69 (1994). It is equally well-settled that "flight in combination with other circumstances . . . may support reasonable and articulable suspicion." Pineiro, supra, 181 N.J. at 26. In Tucker, the Court suggested that circumstances "such as a high-crime location or late-evening to early morning hours" would give the police "greater latitude to subject a citizen to an investigatory stop." Supra, 136 N.J. at 168. However, in Marcellus Williams, the Court characterized as doubtful, but did not decide, whether police officers dispatched shortly after 2 a.m. to a neighborhood known to them to be "rampant with weapons and drug-dealing offenses," where a person was possibly selling drugs, acted with "reasonable and articulable suspicion in attempting to conduct the pat down" of a suspect. Supra, 192 N.J. at 4-5, 10.

Here, the facts resemble closely those in Marcellus Williams. In this case, Nally acknowledged that defendant did nothing to suggest that he was involved in criminal activity while seated in his car, and did nothing out of the ordinary when he got out of the car. Under those circumstances, the trial judge found that Nally did not have reasonable suspicion to support his directive to defendant to remain in the car. We agree with that conclusion.

The more difficult question is whether defendant's flight, under the totality of circumstances, provided the police with an articulable suspicion of criminal activity to support a Terry stop. We need not reach that issue, however, because we conclude that the officers' seizure of the gun was significantly attenuated from their initial conduct so as to permit the admission of the gun at defendant's trial.

The first of the three factors to be evaluated in deciding whether there is significant attenuation between police conduct deemed unconstitutional and the seizure of evidence, is temporal proximity. This factor must be resolved in favor of defendant. The evidence presented during the motion hearing established that defendant had run approximately twenty to forty feet from his car when he turned into the driveway and discarded the gun. Although the parties did not explicitly address the temporal sequence of events, little time would have lapsed between Nally telling defendant to remain in the car or ordering him to stop, and defendant's discarding of the gun.

On the other hand, factor three, the flagrancy and purpose of the police misconduct, must be resolved in favor of the State. The officers were conducting an investigation in a dangerous section of the city, plagued by gang activity, where hundreds of arrests had been made for drug and weapons offenses. Additionally, the officers drove to the neighborhood in response to information received by a fellow detective. Under those circumstances, the actions of the officers did not approach flagrant misconduct.

We also conclude that the second factor -- the presence of intervening circumstances -- must be resolved in favor of the State. Defendant led officers on a foot chase, thereby endangering them. Cf. Marcellus Williams, supra, 192 N.J. at 12-13 (affirming that "'any flight from police detention is fraught with the potential for violence because flight will incite a pursuit, which in turn will endanger the suspect, the police, and innocent bystanders'" (quoting Crawley, supra, 187 N.J. at 460 n.7)). More significantly, defendant shed his jacket and discarded it after running off the street and into a driveway. Defendant's discarding of his jacket after turning into the driveway constituted a significant attenuation between Nally's initial commands to defendant and the police finding the gun in defendant's jacket. That attenuation, and the good faith of the officers, outweigh any countervailing considerations. Consequently, we affirm the trial court's denial of defendant's suppression motion.

Defendant argues in Point II that the trial court erred in responding to the jury's question about the keys Nally found in defendant's jacket. Specifically, the jury asked, "where did they go? [A]nd/or to whom did they belong?" At trial, defense counsel explicitly agreed with the trial court that because no evidence had been presented on either issue, the court should instruct the jurors not to speculate. Defendant now argues that the court's instruction to the jurors, that they could not speculate, ignored the principle that the jurors "could consider the lack of evidence" and were thus "perfectly free to consider that the State did not link the keys to the car that defendant was exiting immediately before."

Defendant's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following. The jurors did not ask the trial judge if they could consider the absence of evidence in determining whether the State had carried its burden of proof; they asked what happened to the keys and to whom they belonged. Because there had been no evidence presented on either of those factual issues, the court properly instructed the jurors that they could not speculate about them. The court, in its charge, had thoroughly instructed the jurors on the State's burden of proof, and had specifically instructed them that a reasonable doubt could occur from the evidence "or from a lack of evidence."

We now turn to Point III in which defendant argues the trial court committed reversible error when, at sentencing, it required defendant to admit his guilt. Prior to the sentencing date, defendant had apparently written to the court and claimed that "law enforcement was just trying to get even . . . because [he] beat some charge in Essex County." During the sentencing proceeding, the court asked defendant:

So if I said to you right now that if you told me right now that you were guilty of what the jury found you guilty of and that you did have that gun, and I told you that it would somehow be better for you even at this late date if you did say, yes, I'd had that gun. What would you say?

Defense counsel responded that he was going to answer for defendant, and that there was an issue about the gun, but counsel then asked defendant if he got out of the car that day with a gun. Defendant replied, "Yeah." Thereafter, counsel explained to the court that defendant had an issue with where the gun was recovered, but then turned to defendant and asked, "[F]orget[ting] where it was recovered, was that your gun?" Defendant replied, "Yes." The court then explained that acceptance of responsibility or denial of any responsibility is something the court must consider.

Because a defendant's confession after he has been convicted is of "little rehabilitative significance," and because "[t]he danger of misunderstanding and unintended coercion is too great," the Supreme Court has explicitly stated that "the sentencing judge should not himself seek to induce the defendant to confess." State v. Poteet, 61 N.J. 493, 499 (1972). Although the trial court should have heeded that directive, there is no evidence that the trial court enhanced defendant's sentence because of the belated admission of guilt. If anything, the context of the colloquy during sentencing suggests the opposite.

Finally, defendant argues in Point IV that his sentence was excessive because the sentencing court improperly weighted aggravating factors and failed to properly consider that at age thirty-four, thirteen years after his last conviction at age twenty-one when he was addicted to drugs, defendant had turned his life around.

A court has wide discretion when imposing a sentence, but the sentence must not be manifestly excessive nor unduly punitive. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984). "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989).

In determining the appropriate sentence to be imposed, the sentencing court must consider statutorily enumerated aggravating and mitigating circumstances, N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record on appeal. State v. Kruse, 105 N.J. 354, 360 (1987). "[A]n appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." O'Donnell, supra, 117 N.J. at 216. When trial courts "exercise discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court]," we may not second-guess the trial court. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotation marks and citations omitted).

The trial court did not abuse its discretion in sentencing defendant. The court carefully considered and properly balanced aggravating and mitigating factors, including the support of defendant by his family, and defendant's enrollment in school. Although defendant "disputes the court's findings and weighing of the pertinent factors," his dispute amounts to nothing more than second-guessing the trial court.

A

1 The offense occurred before the amendment that changed the grading of the offense from a third degree to a second degree crime became effective. See L. 2007, c. 284. Although the indictment and jury verdict were for N.J.S.A. 2C:39-5b, the judgment of conviction states that the conviction was for N.J.S.A. 2C:39-5d, third degree unlawful possession of a weapon-other.

2 Nally subsequently clarified that defendant ran into a driveway. At trial, Rosario also testified that defendant ran into a driveway.

3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

4 We include the defendants' first names in the Supreme Court's opinion and in our opinion in State v. Robert Williams, 410 N.J. Super. 549 (App. Div. 2009), certif. denied, 201 N.J. 440 (2010), to distinguish the cases.