STATE OF NEW JERSEY v. THOMAS E. LEE

NOT FOR PUBLICATION WITHOUT THE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.

THOMAS E. LEE,

Defendant-Appellant.

________________________________

December 9, 2015

Submitted November 5, 2015 Decided

Before Judges Fuentes and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-11-1193.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Thomas E. Lee pled guilty to first-degree possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and (b)(1). In accordance with a negotiated plea agreement, defendant was sentenced to ten years in prison, with five years of parole ineligibility. Defendant now appeals the denial of his motion to suppress the cocaine that was found in the car in which defendant was traveling as a passenger. Defendant also appeals his sentence, contending that the sentencing judge failed to explain his findings and decision to impose a period of parole ineligibility. Having reviewed the record and applicable law, we reject defendant's arguments and affirm.

I.

The facts and procedural history are established by the record, including the evidentiary hearing on the motion to suppress. Defendant was the subject of a month-long narcotics investigation after a confidential informant (CI) told law enforcement officers that defendant was selling cocaine in Trenton. Officers with Mercer County Prosecutor's Special Investigations Unit (the Special Unit) observed the CI engage in two controlled purchases of cocaine from defendant. Thereafter, the CI told a detective that defendant was going to purchase more cocaine for distribution. Officers set up a surveillance and observed defendant travel in a car into New York City, where he rendezvoused with another vehicle, and then followed that vehicle to a mall parking lot. Concerned that they might be seen, the officers broke off the surveillance in New York, but resumed it in New Jersey when they saw the car defendant was traveling in on the New Jersey Turnpike. With the assistance of uniformed police officers, officers of the Special Unit effectuated a stop of the car in which defendant was traveling as a passenger. Defendant and the driver were asked to step out of the car, and a few minutes later, an officer and a narcotics dog conducted an exterior examination of the car. The narcotics dog made a positive indication of the presence of narcotics in the car. Defendant and the driver were detained and, together with the car, they were taken to a police station. Law enforcement officers then applied for, and obtained, a search warrant from a judge. A search of the vehicle disclosed approximately 190 grams of cocaine located behind the front passenger seat.

Defendant moved to suppress the cocaine contending that the stop of the vehicle was unconstitutional. Following an evidentiary hearing, Judge Mark J. Fleming denied defendant's motion, finding that the officers had reasonable articulable suspicion to conduct an investigatory stop of the vehicle. Judge Fleming also found the information provided by the CI was reliable and had been corroborated by the officers of the Special Unit. In making those findings, Judge Fleming relied on and found credible the testimony of two officers of the Special Unit. In support of his decision, Judge Fleming issued a well-reasoned and thorough written opinion.

Having reserved his right to appeal, defendant challenges the denial of his motion to suppress and his sentence. Specifically, defendant contends

POINT I THE ORDER DENYING LEE'S SUPPRESSION MOTION SHOULD BE REVERSED BECAUSE THE POLICE LACKED ARTICULABLE SUSPICION TO STOP THE CAR IN WHICH LEE WAS A PASSENGER; CONSEQUENTLY, LEE'S RIGHT TO BE FREE FROM AN UNREASONABLE SEARCH AND SEIZURE WAS VIOLATED. U.S. CONST. Art. I, para 4; N.J. CONST. Art. I, para. 7.

POINT II THE TRIAL COURT FAILED TO PROPERLY EXPLAIN ITS SENTENCING FINDINGS OR ITS DECISION TO IMPOSE A PAROLE INELIGIBILITY TERM, A REMAND FOR RE-SENTENCING IS THEREFORE REQUIRED.

In reviewing a motion to suppress, we defer to the trial court's factual and credibility findings, so long as those findings 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)). Deference is afforded because the "findings of the trial judge . . . are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "An appellate court should disregard those findings only when a trial court's findings of fact are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). The legal conclusions of a trial court are reviewed de novo. Id. at 263.

II.

Defendant argues that the investigatory stop of the vehicle was unlawful because it was based on vague and unsupported assertions of an informant whose veracity was never established. Defendant, therefore, contends that the investigative stop violated his Fourth Amendment rights.

An investigatory stop is permissible if it is "reasonable and justified by articulable facts." State v. Coles, 218 N.J. 322, 343 (2014). The burden is on the State to show by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion. State v. Pineiro, 181 N.J. 13, 19-20 (2004). That reasonable suspicion standard requires "some minimum level of objective justification for making the stop." State v. Amelio, 197 N.J. 207, 211 (2008) (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). "The principal components of a determination of reasonable suspicion . . . [are] the events which occurred leading up to the stop . . ., and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to a reasonable suspicion . . . ." State v. Stovall, 170 N.J. 346, 357 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661-62, 134 L. Ed. 2d 911, 919 (1996)).

In determining whether reasonable suspicion exists, a court should consider the totality of the circumstances. State v. Gamble, 218 N.J. 412, 431 (2014). Those circumstances may also include consideration of information provided by a confidential informant because, "a descriptive tip by an informant may contribute to a reasonable objective and particularized suspicion to serve as the basis for an investigatory stop." State v. Richards, 351 N.J. Super. 289, 300 (App. Div. 2002) (quoting State v. Caldwell, 158 N.J. 452, 467 (1999) (Handler, J., concurring)). Moreover, even if the informant has never worked with the police before, the information provided by the informant, once corroborated by the observation 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).

Applying these principles, we discern no basis for disturbing Judge Fleming's determination that the officers conducted a lawful investigatory stop. Officers of the Special Unit had observed the CI engage in two controlled purchases of cocaine from defendant. Thereafter, the CI provided information concerning defendant going to purchase more cocaine and the officers observed the defendant travel into and out of New York City. All of that information, when considered in the totality of the circumstances, gave sufficient articulable suspicion that defendant had just purchased cocaine for further distribution and that the cocaine was in the vehicle.

Once the officers stopped the vehicle, they used a narcotics dog to further their investigation. That limited detention and exterior search of the vehicle was also lawful. See Rodriguez v. United States, 575 U.S. ____, ____, 135 S. Ct. 1609, 191 L. Ed. 2d 492, 497 (2015) (explaining that reasonable suspicion is required to prolong a traffic stop to conduct a dog sniff). "Conducting a dog sniff [does] not change the character of a[n] [investigatory] stop that is lawful at its inception" so long as the detention is executed in a reasonable manner. State v. Legette, 441 N.J. Super. 1, 28 (App. Div.) (first alteration in original) (quoting Illinois v. Caballes, 543 U.S. 405, 408-09, 125 S. Ct. 834, 837-38, 160 L. Ed. 2d 842, 847 (2005)), certif. granted, ___ N.J. ___ (2015). "Indeed, an officer in a lawful investigatory stop may conduct a dog sniff even if it 'prolongs the stop' to a reasonable extent needed to complete the dog sniff procedure, so long as the officer has 'reasonable suspicion' of drug possession." Ibid. (citing Rodriguez, supra, 191 L. Ed. 2d at 497 and State v. Baum, 393 N.J. Super. 275, 290 (App. Div. 2007), aff d as modified, 199 N.J. 407 (2009)).

Finally, the indication of the presence of drugs by a trained narcotics dog gave the officers the basis to detain defendant and the vehicle while a warrant was sought. See State v. O'Neal, 190 N.J. 601, 607 (2007); Legette, supra, 441 N.J. Super. at 30-31. The search pursuant to the warrant was also lawful. State v. Jones, 179 N.J. 377, 388 (2004).

In summary, when the totality of the circumstances are evaluated, the initial stop of the vehicle was lawful because the officers had reasonable articulable suspicion that defendant had just purchased cocaine. The use of the narcotics dog to sniff the exterior of the vehicle was also lawful because that procedure occurred within minutes from the time the vehicle was stopped. Consequently, the detention did not last longer than reasonably necessary. Coles, supra, 218 N.J. at 322. Judge Fleming found the testimony of the officers involved with the stop to be credible. Because Judge Fleming's fact findings are based on credible evidence in the record, we discern no error in the denial of defendant's motion to suppress the evidence.

III.

Defendant argues next that the matter should be remanded for re-sentencing because the sentencing judge (again, Judge Fleming) did not clearly explain the aggravating and mitigating factors and did not explain the reasons for imposing a period of parole ineligibility. We disagree.

Appellate review of sentencing decisions is deferential and governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). "At the time of sentencing, the court must 'state reasons for imposing such sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence.'" State v. Fuentes, 217 N.J. 57, 73 (2014) (quoting R. 3:21-4(g)); see also State v. Case, 220 N.J. 49, 54 (2014); State v. Lawless, 214 N.J. 594, 608 (2013). Whether a sentence violates sentencing guidelines is a question of law that is reviewed de novo. State v. Robinson, 217 N.J. 594, 604 (2014). If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscious, appellate courts should not substitute their judgment for that of the trial judge. State v. Roth, 95 N.J. 334, 364-65 (1984).

Defendant was sentenced to ten years in prison, with five years of parole ineligibility in accordance with the negotiated plea agreement. At defendant's sentencing, Judge Fleming found aggravating factors three (N.J.S.A. 2C:44-1(a)(3)), six (N.J.S.A. 2C:44-1(a)(6)), and nine (N.J.S.A. 2C:44-1(a)(9)). Judge Fleming also found mitigating factor twelve (N.J.S.A. 2C:44-1(b)(12)). The judge articulated the factual basis for those aggravating and mitigating factors, noting that defendant had an extensive criminal record justifying aggravating factors three and six and that this was a very serious crime, justifying aggravating factor nine. Judge Fleming also explained why he was imposing a five-year period of parole, which was called for under the negotiated plea agreement. In short, we find no abuse of discretion in the sentencing of defendant.

Affirmed.