STATE OF NEW JERSEY v. MICHAEL P. NAPLES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05596-12T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL P. NAPLES, a/k/a NIP,

Defendant-Appellant.

________________________________

November 13, 2014

Submitted November 5, 2014 Decided

Before Judges Koblitz and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 12-01-0124.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

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

PER CURIAM

A jury acquitted fifty-year-old defendant Michael Naples of arson and burglary and convicted him only of third-degree possession of a trace amount of cocaine, N.J.S.A. 2C:35-10(a)(1).1 For possession of that trace amount of cocaine he was sentenced to a discretionary extended term of six years in prison with a three-year period of parole ineligibility. We now affirm the denial of defendant's pre-trial motion to suppress and reverse the disproportionately harsh sentence imposed. We remand for the imposition of a sentence in line with the minute amount of drugs involved.

Testimony at the motion to suppress by two law enforcement officers, whom the judge found credible, revealed the following information. On January 7, 2011, at 9:00 p.m., police and fire personnel were dispatched to a burning vacant building in Clayton. The fire, which consumed the building, was eventually extinguished by 3:00 a.m. the next morning. On the night of the fire, Detective Laren Franklin of the Clayton Police department responded to the scene and obtained from a neighboring jewelry business surveillance footage capturing the fire. Detective Franklin reviewed the footage with Detective Ronald Koller of the Gloucester County Prosecutor's Office. The surveillance video revealed defendant riding his bicycle past the store into the parking lot of the vacant building prior to the fire. Defendant was also seen in the parking lot of the vacant burning building minutes after the fire began.

Both detectives knew defendant and, after identifying him in the surveillance video, they considered defendant a "person of interest." At that time, defendant was walking his bicycle in close proximity to the fire, approximately four houses away. The two detectives, together with the county fire marshal, approached defendant.

Detective Koller initiated a conversation, stating, "Michael, look, I need to talk to you real quick." When defendant denied knowing anything about the fire, the detective told defendant that he was seen on the surveillance video. When speaking to defendant, Detective Koller smelled an "odor of gasoline" on him and went to find a canine unit.

Detective Franklin then asked defendant, "Mike, do you have anything on you." Mr. Naples responded, "Yes, I do sir; I have a pipe." Defendant then "pulled out a crack pipe." He was arrested and searched. A gas cap and a rolled-up one dollar bill with a trace amount of cocaine was found in the search.

On appeal defendant raises the following issues

POINT I: THE WARRANTLESS STOP AND SEIZURE OF DEFENDANT VIOLATED HIS CONSTITUTIONAL RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES.

POINT II: THE DISCRETIONARY EXTENDED TERM SENTENCE IMPOSE[D] UPON THE DEFENDANT OF SIX (6) YEARS WITH THREE (3) YEARS OF PAROLE INELIGIBILITY FOR POSSESSION OF A TRACE AMOUNT OF COCAINE WAS EXCESSIVE AND SHOULD BE MODIFIED.

I

We accord substantial deference to the trial court's factual findings in a suppression hearing. See State v. K.W., 214 N.J. 499, 507 (2013). The trial court's factual findings are upheld "'so long as those findings are supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). In particular, the "appellate court must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Mann, 203 N.J. 328, 336-37 (2010) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

A trial court's interpretation of the applicable law and the consequences flowing from the established facts, however, are not entitled to special deference and should be reviewed de novo. State v. Lamb, 217 N.J.442, 455 (2014). At a suppression hearing, "'the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure falls within one of the few well-delineated exceptions to the warrant requirement.'" Mann, supra, 203 N.J. at 337-38 (2010)(quoting Elders, supra, 192 N.J. at 246).

Defendant concedes the initial discussion about the fire was a legitimate field inquiry. He argues that when Detective Franklin asked him if he had anything illegal on him, the situation became a detention. In that regard, defendant contends that "[b]ecause Detective Franklin did not have a reasonable or articulable suspicion to stop [defendant], defendant's voluntary relinquishment of the crack pipe was an illegal search and seizure." The State concedes that when Detective Franklin asked defendant if he "had anything on him," the interaction rose to the level of a Terry2 stop, or investigative detention. A field inquiry rises to the level of an investigative stop when an objectively reasonable person feels that his or her right to move has been restricted. State v. Davis, 104 N.J. 490, 498 (1986).

Although an officer does not need a warrant to make such a stop, the stop must be "'based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Mann, supra, 203 N.J. at 338 (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). Notably, our Supreme Court has stated that

"articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

[Davis, supra, 104 N.J. at 504.]

As the Court held in Davis, "A seizure cannot -- we emphasize cannot -- be justified merely by a police officer's subjective hunch." Id. at 505.

As the trial judge found, defendant's close proximity to the fire both before and after it occurred combined with the odor of gasoline provided "specific and articulable facts" that gave "rise to a reasonable suspicion of criminal activity." The fact that Detective Koller knew that defendant worked in a body shop, which could provide an innocent explanation for the smell of gasoline, and that Detective Franklin had seen defendant earlier that night and not noted anything suspicious, is of no moment. "The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as 'a reasonable person would find the actions are consistent with guilt.'" State v. Citarella, 154 N.J.272, 279-80 (1998) (quoting State v. Arthur, 149 N.J.1, 11 (1997)). We must determine whether "'the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that action taken was appropriate[.]'" Pineiro, supra, 181 N.J. at 21 (quoting Arthur, supra, 149 N.J. at 7-8). It was responsible police activity to question defendant further after learning of his presence at the scene of the fire before and after it occurred and smelling the odor of gasoline on him. We therefore affirm the denial of defendant's motion to suppress.

II

Review of a criminal sentence is limited: a reviewing court must decide whether there is a "clear showing of abuse of discretion." State v. Whitaker, 79 N.J. 503, 512 (1979) (citation and quotation marks omitted). Reviewing courts must affirm a sentence of the trial court unless: (1) the sentencing guidelines were violated, (2) the aggravating and mitigating factors found below were not based upon competent credible evidence in the record, or (3) "the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).

The State moved to sentence defendant to an extended sentence as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). Defendant clearly met the minimum criteria for a persistent offender

a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.

[N.J.S.A. 2C:44-3(a).]

Fitting the statutory criteria is but the first of four steps in the decision. State v. Dunbar, 108 N.J. 80, 89 (1987). Our Supreme Court spelled out those steps

First, [13] the sentencing court must determine whether the minimum statutory predicates for subjecting the defendant to an extended term have been met. Second, the court must determine whether to impose an extended sentence. Third, it must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence. Finally, it must determine whether to impose a period of parole ineligibility.

[Ibid.]

After the judge determines that the defendant meets the criteria, the judge must then determine if an extended term is necessary for the protection of the public. State v. Pierce, 188 N.J. 155, 164-65 (2006). Our Court has said

Primarily, "the adequate protection of society" standard encompasses the doctrine of deterrence -- the protection of society from future offenses by the defendant and others through punishment. "Serious, harmful and calculated offenses typically call for deterrence."

[Dunbar, supra, 108 N.J. at 91 (citations omitted).]

When deciding to impose a discretionary extended term, the judge did not make the finding that the imposition of an extended term for the possession of a trace amount of cocaine was necessary for the protection of society. The only comment that the judge made with regard to protecting society was the following

CDS types of offenses are harmful not only to the defendant, but they're also potentially harmful to anybody in society because if you use them, you wind up under the influence, other things happen.

We note that defendant admitted being under the influence of cocaine at the time of his arrest. We have considered the possibility that the phrase "other things happen" could indicate that the judge believed defendant guilty of the arson and burglary charges, although there is no evidence that such an improper consideration entered the sentencing process.

Defendant, who was born in 1962, had a lengthy, although nonviolent, criminal record. Defendant had been convicted in Municipal Court thirteen times and in Superior Court fourteen times, primarily for drug, theft and burglary charges. He had received probation, served time in the county jail and State prison, and had participated in Drug Court pursuant to N.J.S.A. 2C:35-14.3 According to defense counsel, defendant had most recently faithfully attended a jail drug rehabilitation program during the 846 days he was incarcerated prior to sentencing. We note that defendant has a long-standing drug problem, and that "addiction is not easy to successfully remediate[.]" N.J. Div. of Youth & Family Serv. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011).

The judge found three aggravating factors: defendant is at riskto commitanother crime,N.J.S.A.2C:44-1(a)(3), defendanthas an extensive and serious criminal record, N.J.S.A. 2C:44-1(a)(6), andthe needto deterdefendant andothers, N.J.S.A. 2C:44-1(a)(9). He found no mitigating factors, rejecting mitigating factors one and two, that defendant's possession of a trace amount of drugs neither caused nor threatened serious harm, nor did defendant contemplate that it would, N.J.S.A. 2C:44-1(b)(1) and (2), with the troubling suggestion that when a person is under the influence "other things happen." Although moving for an extended term, the State did not seek a term of parole ineligibility. The judge found that the aggravating factors substantially outweighed the non-existing mitigating factors such that a term of parole ineligibility was appropriate.4

The judge thus imposed a discretionary extended term without making the requisite finding that it was necessary to protect society. He included a three-year term of parole ineligibility without finding mitigating factor one or two applied, although it was well-supported by the competent credible evidence in the record. These errors resulted in a sentence for possession of a trace amount of cocaine so "clearly unreasonable so as to shock the judicial conscience." Roth, supra, 95 N.J. at 365.

Reversed and remanded for resentencing within twenty days. We do not retain jurisdiction.

1 He was indicted for second-degree aggravated arson, N.J.S.A. 2C:17-1(a), third-degree arson, N.J.S.A. 2C:17-1(b)(2) and third-degree burglary, N.J.S.A. 2C:18-2(a)(1), as well as possession of cocaine.

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

3 According to defense counsel, defendant had been rejected from drug court for this offense due to his extensive criminal record. The sentencing judge does have the ability to sentence a defendant to Drug Court, however, even if the defendant does not fit the statutory criteria set forth in N.J.S.A. 2C:35-14 due to a prior criminal record. State v. Meyer, 192 N.J. 421, 437 (2007).

4 The judge did not specify that he was "clearly convinced" as required by N.J.S.A. 2C:43-6(b), but such a finding is implicit in his discussion.