STATE OF NEW JERSEY v. JEFFREY SIMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY SIMS, a/k/a

TODD JOHNSON, a/k/a

JEFFREY SIMMS,

Defendant-Appellant.

April 17, 2014

Submitted February 11, 2014 Decided

Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-03-0220.

Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On January 25, 2012, immediately before jury selection in the trial of his criminal charges, defendant Jeffrey Sims entered guilty pleas to third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10(a)(1) (count one); and third-degree possession of a CDS (heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two). The plea was "open," i.e., sentencing on the offenses would be at the judge's discretion within the second-degree sentencing range, as defendant was mandatory extended-term eligible as a second-time drug distributor.1 N.J.S.A. 2C:43-6(f). Defendant also agreed to waive his right to a formal notice of motion with regard to the extended-term sentence aspect of the sentence, and the State agreed to dismiss count three, which charged defendant with second-degree possession of a CDS with intent to distribute within 500 feet of a public building, N.J.S.A. 2C:35-7.1.

On March 30, 2012, defendant was sentenced to an extended term of eight years imprisonment subject to three-and-one-half years of parole ineligibility on merged counts one and two. Neither the judge nor the judgment specified the statutory section under which the extended term was being imposed. Because of defendant's prior criminal history, he was eligible for persistent offender extended-term sentencing in addition to mandatory extended-term sentencing. N.J.S.A. 2C:44-3(a). In any event, in addition to the term of imprisonment, appropriate penalties, fees, and assessments were imposed. Defendant appeals, and we affirm.

Pre-trial, defendant filed an unsuccessful motion to suppress, challenging the constitutionality of the search warrant that resulted in the seizure of the contraband from his person and drug paraphernalia from his apartment. At the hearing, defendant testified that, during the weeks of August 25 and September 14, 2009, when a confidential informant made controlled buys described in the search warrant affidavit, he neither possessed narcotics nor sold them. The Law Division judge summarily denied the motion on the basis that the testimony was irrelevant as outside the four corners of the search warrant affidavit. As he put it, the limited issue presented for decision was whether the issuing magistrate had sufficient probable cause.

In the search warrant affidavit, Elizabeth Police Department fourteen-year veteran Detective Athanasios Mikros, in addition to giving a detailed description of the two controlled buys of cocaine purchased from defendant employing the confidential informant, also recounted how defendant first came to his attention, based on a tip from the confidential informant. He considered the confidential informant to be reliable because he supplied information previously which resulted in seven arrests and the recovery of CDS and drug-trafficking proceeds.

In addition, Mikros described his surveillance of defendant during the months of August and September 2009. He observed defendant engaging in hand-to-hand drug transactions, while using his apartment as a home base. Defendant's appendix includes the officer's supplemental report in which he notes that, when the warrant was executed, defendant was found to have fifteen glassine envelopes containing heroin in a front jacket pocket. Both at the scene and when interviewed at the station, defendant insisted that his mother was unaware of the presence of drugs in the apartment. While at the station, he waived his Miranda rights and gave a taped statement admitting that he had been selling drugs.

On appeal, defendant raises the following two points:

POINT I

THE TRIAL JUDGE ERRED IN DENYING MR. SIMS' MOTION TO SUPPRESS THE EVIDENCE AS THERE WAS INSUFFICIENT PROBABLE CAUSE TO SUPPORT THE SEARCHES, REQUIRING A FULL FRANKS HEARING. U.S.CONST. Art.I, para 4; N.J. CONST. Art. I, para. 7.

POINT II

THE SENTENCE IMPOSED, AN EIGHT-YEAR STATE PRISON TERM WITH A THREE-AND-A-HALF-YEAR PERIOD OF PAROLE INELIGIBILITY, WAS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.

We accord substantial deference to the discretionary determination resulting in the issuance of a search warrant, which is presumed to be valid. State v. Chippero, 201 N.J. 14, 25-26 (2009). The defendant bears the burden of demonstrating that the warrant issued without probable cause or that the search was otherwise unreasonable. State v. Evers, 175 N.J. 355, 381 (2003). On appellate review, we need only determine if the application provided sufficient evidence for a finding of probable cause to search for the specified items. Chippero, supra, 201 N.J. at 32. It is well-established that the judge issuing the search warrant makes that probable cause determination based on only the information contained in the four corners of the supporting affidavit. Id. at 26.

Probable cause eludes precise definition.
But in this case, a fair probability was unquestionably established that contraband would be found in defendant's apartment. Id. at 29 n.6. There were ample circumstances described within the four corners of the affidavit, namely, controlled buys, surveillance observations, and the initial tip by a reliable confidential informant.

The initial confidential informant's tip was subsequently corroborated by controlled buys. The officer personally witnessed hand-to-hand drug sales by defendant. Defendant's testimony, claiming he did not have drugs in his possession in the weeks in question, did not rise to the level of a substantial showing of materially false statements or omissions. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672 (1978); State v. Marshall, 148 N.J. 89, 193, cert. denied, 522 U.S. 850 (1997); State v. Marolda, 394 N.J. Super. 430, 440-41 (App. Div.), certif. denied, 192 N.J. 482 (2007). This issue does not merit further discussion.

Regarding defendant's sentence, the sentencing judge admittedly did not specify the relevant section of the Criminal Code he was employing when he sentenced defendant to an extended term. Certainly, not to have sentenced defendant as a second-time drug distributor would have been an illegal sentence under N.J.S.A. 2C:43-6(f). See State v. Thomas, 188 N.J. 137, 149 (2006) ("The language of 2C:43-6(f) clearly indicates that the Legislature meant enhancement to be mandatory . . . .").

In sentencing defendant, the judge found three aggravating factors: the risk that defendant will reoffend, the extent of his prior criminal history, and the need to deter him and others from violating the law. N.J.S.A. 2C:44-1(a)(3), (6), (9). The judge found no factors in mitigation. In his sentencing decision, the judge observed that the fact this was defendant's third conviction for drug distribution offenses was of significant weight in his qualitative analysis of the appropriate sentence. Contrary to defendant's argument on appeal, that defendant was a drug addict who readily admitted his culpability to police when served with a search warrant for his apartment, does not establish any statutory mitigating factor. Furthermore, after reviewing defendant's circumstances, the judge imposed a sentence significantly less than the maximum, albeit significantly more than the minimum.

We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Ibid. We see no reason to disturb the term of imprisonment imposed in this case.

Affirmed.

1 Defendant was convicted of distribution of a CDS within 1000 feet of school property, N.J.S.A. 2C:35-7, on September 9, 1993, and distribution of a CDS, N.J.S.A. 2C:35-5(b)(2), on November 18, 2004.