STATE OF NEW JERSEY v. TYREEK ROLON

NOT FOR PUBLICATION WITHOUT THE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.

TYREEK ROLON, a/k/a

TYREEK L. ROLON and

TYREEK LAMAR ROLON,

Defendant-Appellant.

________________________________

December 29, 2014

Submitted: December 16, 2014 Decided

Before Judges Haas and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-04-0321.

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

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

PER CURIAM

A Union County grand jury charged defendant Tyreek Rolon with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (count one); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count two); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second-degree possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four). The grand jury also charged co-defendant Ismail Abdunafi with the same offenses.

On November 5, 2010, Judge Joseph P. Perfilio entered an order denying defendant's motion to suppress. Defendant and Abdunafi were tried before Judge Robert J. Mega and a jury on November 2 and 3, 2012. The jury convicted both men of all four counts of the indictment.

At sentencing, Judge Mega merged counts one, two, and three into count four, and sentenced defendant to nine years in prison, with a fifty-four month period of parole ineligibility. The judge also imposed appropriate fines and penalties. This appeal followed.

On appeal, defendant raises the following contentions

POINT I

BECAUSE THE OFFICER WAS NOT LAWFULLY IN THE VIEWING AREA AND THE VIEWING OF THE EVIDENCE WAS NOT INADVERTENT, THE DRUGS WERE NOT IN PLAIN VIEW AND SHOULD HAVE BEEN SUPPRESSED.

A. The Officer Was Not Lawfully In The Viewing Area.

B. The Discovery Was Not Inadvert[e]nt.

POINT II

THE SEARCH OF THE VEHICLE WAS NOT PERMISSIBLE UNDER THE AUTOMOBILE EXCEPTION BECAUSE NO EXIGENT CIRCUMSTANCES REQUIRING IMMEDIATE ACTION EXISTED.

POINT III

THE STATE WITNESS IMP[RO]PERLY INVADED THE PROVINCE OF THE JURY BY OFFERING TESTIMONY AS TO THE ULTIMATE ISSUE OF WHETHER MR. ROLON POSSESSED A CONTROLLED DANGEROUS SUBSTANCE WITH THE INTENT TO DISTRIBUTE.

POINT IV

THE SENTENCE WAS EXCESSIVE AS THE COURT FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS IN SENTENCING MR. ROLON TO A NINE-YEAR SENTENCE WITH A FIFTY-FOUR MONTH PERIOD OF PAROLE INELIGIBILITY.

After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

The State developed the following proofs at trial. Detective Smith testified that, "based upon information" the police received around 2:00 p.m. on November 6, 2009, he went with five other officers in three unmarked cars to a specific intersection to conduct a surveillance. The police arrived at the location at approximately 2:30 p.m. The intersection was within 1000 feet of a school, which was still in session at the time the officers arrived. The intersection was also within 500 feet of a public park. Detective Smith was partnered with Sergeant Kelly and parked his unmarked car near the intersection. The officers in the other two cars parked out of sight of the intersection.

After waiting a few minutes, Detective Smith saw a black Honda Civic pull up and park "directly across the street" at the curb at the intersection. Detective Smith radioed the other officers to come and "assist" him and Sergeant Kelly. The two other police cars arrived at the scene to block in the Honda in the front and back.

Detective Smith and Sergeant Kelly got out of their car and Detective Smith approached the passenger side of the Honda. Defendant was sitting in the front-passenger seat and Abdunafi was sitting in the driver's seat. No one else was in the car. Detective Smith identified himself as a police officer and asked both men to get out of the car. They complied.

Detective Smith testified that, "as they were getting out[,] I noticed there was a a hat on the floor and a plastic bag with rocky powder, or rocky substance, sticking out of the hat." The hat was on "the front floor of the car . . . [i]n-between the driver's side and the passenger side." The detective testified the hat was on the floor "almost directly in the middle" of the two men. "Based upon [the detective's] experience and training," he stated the "substance" looked like "[c]rack cocaine." Detective Smith told the other officers of his discovery and they arrested defendant and Abdunafi.

After the arrest, Detective Smith asked Abdunafi "if he would give me permission to search the vehicle. I told him he didn't have . . . to let me, he had the right to refuse." The detective testified he read Abdunafi the "permission-to-search form . . . verbatim[.]" Abdunafi agreed to the search. Detective Smith then retrieved the hat from the passenger side of the car. The police did not find any other contraband during the subsequent search of the Honda. The police searched Abdunafi and found $2059. The police searched defendant and found $337.

The Union County Prosecutor's Office forensic laboratory tested the substance found in the hat and found it was 19.75 grams of cocaine. Detective Sullivan qualified "as an expert in the field of narcotics trafficking" at trial. Detective Sullivan opined that the cocaine found in the car was "possessed with the intent to distribute[,]" rather than for personal use. The detective explained that his opinion was based upon: the quantity of the cocaine found in the car; the packaging in which it was found; the fact that no paraphernalia needed to ingest crack cocaine was found in the car or on defendant and Abdunafi; and the amount and denominations of the cash taken from defendant and Abdunafi. Detective Sullivan opined that the cocaine found in the bag could be broken up into "close to 200 vials" and would have a street value of about $2000.

Defendant did not testify at trial. Abdunafi testified that, on November 6, 2009, he was working at a store when defendant, whom Abdunafi had known since childhood, called him and asked him for a ride. The Honda he drove belonged to the owner of the store, who let Abdunafi use it to "run errands for the store." Abdunafi testified that, after he picked up defendant, he asked to be dropped off at the intersection involved in this matter. As soon as he parked to let defendant out of the car, Abdunafi testified the police arrived and boxed him in.

Abdunafi testified he fully cooperated with the officers. He stated that "about $100" of the money he had "probably was mine," and the rest "was the store's money." Abdunafi denied ownership of the hat and testified, "I don't know whose hat it is."

II.

Prior to trial, defendant and Abdunafi filed motions to suppress the cocaine found in the search of the car. The parties relied upon stipulated facts, including a written report prepared by Detective Smith. The report mirrored the detective's testimony at trial, but provided the details of the information the police received which caused them to go to the intersection at 2:30 p.m. on the day of the incident. In the pertinent portion of his report, Detective Smith stated

On Friday, November 6, 2009, I met with a confidential reliable source that had not been tested as of yet, but whose information was specific and corroborated throughout this investigation. The source will be referred to as Source A.

Source A told me that there was a black male, 25-30 years old, about 5'6" tall, about 130 pounds, with short hair that was going to deliver an amount of crack cocaine to the [intersection]. The suspect was known only as "Tyreek" and he was said to be delivering the cocaine in a black vehicle at about 3:00 p.m.

I checked the records of the . . . Police Department and found an arrest photo for a person named Tyreek Rolon, who had been arrested as recently as June 6, 2009. I also retrieved his criminal history and learned that he has been arrested three times for CDS related crimes. I showed the photo to Source A who positively identified Tyreek Rolon as the suspect described previously.

At about 2:30 p.m., I went to the area with other members of the Narcotics Bureau.

Following oral argument, Judge Perfilio denied defendants' motion to suppress. In rejecting defendant's contention that the information the informant provided was "never corroborated[,]" the judge observed

The police did have information that was specific -- pretty specific and pretty detailed as to -- as to who, where, what, when, and how things were going down. They did get information from the confidential informant which -- which told the race of the person; height; the approximate weight; the age; the kind of vehicle the person would be in; the time that they were supposed to be there; and the location of where it was supposed to be.

Thus, the judge further found that the informant's information "was corroborated by the independent observation of the officers" on the scene.

Because the officers had a "reasonable suspicion" that defendant was in possession of cocaine, the judge found the officers made "a valid car stop." Once the officers asked defendant and Abdunafi to get out of the car, Detective Smith was able to see the bag of cocaine in plain view. The judge found Detective Smith

was in the proper area for the viewing area and in the investigatory stop. Number two, he discovered the bag inadvertently, meaning he did not know in advance that it would be protruding from a black knit hat. And, three, it was immediately apparent to [Detective] Smith that the cocaine in plain view was evidence of a crime, contraband otherwise subject to seizure.

Thus, the judge concluded that the cocaine was properly seized without a warrant based on the plain view exception.1

In Point I of his brief, defendant contends the police stopped the car in which defendant was a passenger without "reasonable suspicion" or probable cause. He also argues that Detective Smith's discovery of the hat filled with cocaine was not "inadvertent" and, therefore, the plain view exception to the warrant requirement does not apply. We disagree.

Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J.1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting Robinson, supra, 200 N.J. at 15). Additionally, we defer to a trial judge's findings that are "'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original) (quoting Robinson, supra, 200 N.J. at 15). We do not, however, defer to a trial judge's legal conclusions, which we review de novo. Ibid.

Under the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the State Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 904-06 (1968) (seizure of a person); cf. State v. Hempele, 120 N.J. 182, 216-17 (1990) (seizure of property).

The seizure of a person occurs in a police encounter if the facts objectively indicate that "'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). An "investigatory stop," also known as a Terry stop, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904. Here, the police blocked in the Honda in which defendant was a passenger. Thus, it is clear he could not leave the scene and, therefore, this was an investigatory stop.

The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop 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." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).

Information provided to the police by a reliable informant may generate the reasonable suspicion necessary for an investigatory stop. Id. at 506. However, even if the informant has never worked with the police before, the information provided by the informant, once corroborated by the observations of the police, can provide reasonable suspicion to justify an investigatory stop of a suspect in an automobile. State v. Birkenmeier, 185 N.J. 552, 562 (2006). It is also well established that ordinary citizen informers are presumed to be reliable. State v. Basil, 202 N.J. 570, 586 (2010). An informant's tip is reliable if, under the totality of the circumstances, there is a sufficient basis for crediting the tip. State v. Smith, 155 N.J. 83, 92 (1998).

There is no mathematical formula for deciding whether the totality of circumstances provides the required articulable or particularized suspicion and, as the case law suggests, the test is qualitative, not quantitative. Stovall, supra, 170 N.J. at 370. The New Jersey Supreme Court has recognized that although "veracity" and "basis of knowledge" are relevant elements in demonstrating probable cause, which is a higher standard than that necessary for an investigatory stop, neither is essential under the totality of the circumstances test. State v. Smith, 155 N.J. 83, 93 (1998); State v. Novembrino, 105 N.J. 95, 121-23 (1987). "A deficiency in one of those factors 'may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some indicia of reliability.'" State v. Zutic, 155 N.J. 103, 110-11 (1998) (quoting Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 2329, 76 L. Ed. 2d 526, 545 (1983)).

Applying these principles, we discern no basis for disturbing the judge's determination that the police properly conducted an investigatory stop of the vehicle in which defendant was a passenger. The informant provided Detective Smith with sufficient, particularized information, including defendant's first name, his physical description, the date and time defendant would be at the intersection, and the color of the car he would be in. At the scene, Detective Smith corroborated the informant's entire account. Defendant's presence in that location at the specified date and time was predictive of the criminal activity: the delivery of crack cocaine to the intersection. Viewing the totality of these circumstances, we conclude the accuracy of the informant's tip was corroborated by the independent observation of Detective Smith, thus generating reasonable articulable suspicion to justify the investigatory stop of defendant and the car in which he was a passenger.

Once the car was stopped, the police properly asked defendant and Abdunafi to exit the vehicle as part of the investigatory stop. Once defendant and Abdunafi got out of the car, the cocaine in the hat was in Detective Smith's plain view. The rationale of the plain view doctrine is that "a police officer lawfully in the viewing area" should not be required to "close his eyes to suspicious evidence in plain view." State v. Johnson, 171 N.J. 192, 207 (2002) (quoting State v. Bruzzese, 94 N.J. 210, 237 (1983), cert. denied, 465 U.S. l030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).

Under the plain view exception, three requirements 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 [the officer] 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.

[State v. Mann, 203 N.J. 328, 341 (2010) (quoting Bruzzese, supra, 94 N.J. at 236).]

These requirements were all met here. Detective Smith conducted a lawful investigatory stop of defendant and properly ordered him and Abdunafi to exit the vehicle. It was also immediately apparent to the detective that the substance protruding from the hat was crack cocaine.

Defendant argues that the discovery of the cocaine was not "inadvertent" because Detective Smith expected there would be cocaine in the car. This argument lacks merit. As the United States Supreme Court explained in Horton v. California, 496 U.S. 128, 141-42, 110 S. Ct. 2301, 2310, 110 L. Ed. 2d 112, 126 (1990)

[T]he seizure of an object in plain view does not involve an intrusion on privacy. If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view and there is no need for an inadvertence limitation on seizures to condemn it. The prohibition against general searches serves primarily as a protection against unjustified intrusions on privacy. But reliance on privacy concerns that support that prohibition is misplaced when the inquiry concerns the scope of an exception that merely authorizes an officer with a lawful right of access to an item to seize it without a warrant.

Based upon these comments, the Supreme Court of New Jersey has observed "that whatever remains of the 'inadvertence' requirement of plain view since Horton [is] satisfied [where] the police officers did not know in advance that evidence would be found in [a specific location] where the police were lawfully located when the object was observed. State v. Johnson, 171 N.J. 192, 213 (2002). While it is clear that Detective Smith expected to find cocaine in the car, he did not know where in the car it would be located. Thus, his observation of the hat filled with cocaine on the floor of the front seat was "inadvertent" and therefore, his seizure of the drugs was permitted under the plain view exception to the warrant requirement. Therefore, we reject defendant's contentions on this point.

III.

In Point III, defendant argues that the State improperly sought to solicit expert testimony from Detective Smith when the prosecutor asked him several questions about the "serving sizes" and cost of cocaine in the area. Because the State did not qualify the detective as an expert, the prosecutor should not have asked these questions. See State v. McLean, 205 N.J. 438, 449 (2011); State v. Odom, 116 N.J. 65, 70-71 (1989).

However, the questioning was brief and, once defendant objected, the prosecutor moved on to another topic. In addition, the State subsequently provided the testimony of Detective Sullivan, who was properly qualified "as an expert in the field of narcotics trafficking." Thus, any error that occurred by Detective Smith's brief testimony about the cocaine he found was harmless under the circumstances. State v. Macon, 57 N.J. 325, 336 (1971). Therefore, we reject defendant's contention on this point.

IV.

Finally, in Point IV, defendant argues that his sentence was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider "any relevant aggravating and mitigating factors" that "'are called to the court's attention[,]'" and "explain how they arrived at a particular sentence." State v. Case, ___ N.J. ___, ___ (2014) (slip op. at 19-20) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. Id. at 20; State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, applied the correct sentencing guidelines enunciated in the Code, and the application of the factors to the law do not constitute such clear error of judgment as to shock our judicial conscience. Case, supra, (slip op. at 20); O'Donnell, supra, 117 N.J. at 215-16. Accordingly, we discern no basis to second-guess the sentence.

Affirmed.

1 In the alternative, the judge stated that the search was justified under the "automobile exception" to the warrant requirement because "exigent circumstances existed under which it would have been impracticable to obtain a warrant." In Point II of his brief, defendant challenges this observation. However, because we find that the search was plainly permissible under the plain view exception to the warrant requirement, we need not address defendant's contention concerning the alternate basis the judge provided for his ruling.