STATE OF NEW JERSEY v. CURTIS F. RATTRAY

NOT FOR PUBLICATION WITHOUT THE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.

CURTIS F. RATTRAY,

Defendant-Appellant.

_____________________________

June 15, 2015

Before Judges Reisner and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 09-06-1056, 10-06-1068, 11-04-643.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Curtis F. Rattray appeals from a July 30, 2012 judgment of conviction (JOC), reflecting his guilty pleas to second-degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:5-2 and 2C:35-5(b)(1), third-degree insurance fraud, N.J.S.A. 2C:21-4.6(a), and third-degree CDS possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35(b)(3).1

Defendant pled guilty after the trial court issued a December 22, 2010 order, denying his motion to suppress evidence collected pursuant to a June 5, 2008 wiretap order and denying his motion for a plenary hearing to explore the reliability of a confidential informant. Pursuant to the plea agreement, he was sentenced to an aggregate term of sixteen years in prison, sixty-four months of which must be served without parole. On this appeal, he raises the following issues

I. THE WIRETAP ORDER AND EXTENSION WERE ENTERED IN THE ABSENCE OF A SHOWING OF PROBABLE CAUSE AND NECESSITY. ACCORDINGLY, THE TRIAL COURT ERRED IN DENYING SUPPRESSION. U.S. CONST., AMEND. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.

A. The Affidavit in Support of the Wiretap Application Failedto Establish Probable Cause to Believe that Defendant was Engaged in the Distribution of Cocaine.

B. The Affidavit in Support of the Wiretap Application Failed to Establish that Normal Investigative Techniques were Insufficient.

In a pro se supplemental brief, defendant raises these additional issues

POINT I. THE COURT COMMITTED A PLAIN ERROR IN NOT AFFORDING THE DEFENDANT THE RIGHT TO A FAIR SUPPRESSION HEARING WHEREBY THE STATE(S) WITNESS OR THE ARRESTING OFFICER WAS ABSENT THEREIN.

POINT II. THE JUDGE IN THIS MATTER COMMITTED NUMEROUS ERROR(S) WHILE IMPOSING SENTENCE TO JUSTIFY THE SENTENCE AND HIS REASON(S).

Finding no merit in any of those contentions, we affirm the December 22, 2010 order, substantially for the reasons stated by Presiding Judge Wendel E. Daniels in his comprehensive written opinion of the same date. Hence, we affirm defendant's conviction. We likewise affirm the sentence.

I

As detailed in Judge Daniels' opinion, a communications data warrant (CDW) had been issued in April 2008 concerning the same cell phone equipment. That CDW, which defendant has not challenged, resulted in the discovery of multiple telephone calls between defendant and various known gang members and drug offenders. The State then applied for a wiretap order on June 5, 2008, and Judge Albert J. Garafolo issued the order on the same day. The supporting affidavit for the June 5 application recited, among other things, that law enforcement had received specific information from a reliable confidential informant (CI) concerning defendant's drug selling activities. That information was corroborated when the CI accomplished two controlled buys of CDS from defendant under law enforcement surveillance.

The affidavit explained that, while law enforcement had evidence that defendant was selling drugs, they wanted to find out who his suppliers were, where he met them, where defendant kept his supply of drugs, and other pertinent information. Because defendant was a highly-placed street gang member, there was a substantial risk that cooperating witnesses could be harmed. It was not possible to infiltrate his organization with undercover officers, and defendant's house was situated in an area that did not permit extended surveillance without risk of detection. Hence, tapping his telephone equipment was the only viable way to obtain the information the police needed. In light of that factual background, the application met the standards set forth in the wiretap statute, N.J.S.A. 2A:156A-9(c) and N.J.S.A. 2A:156A-10. See State v. Dye, 60 N.J. 518, 526 (1972); State v. Braeunig, 122 N.J. Super. 319, 326 (App. Div. 1973).

We also agree with Judge Daniels that the affidavit satisfied the totality of the circumstances test, in describing evidence of the CI's prior reliability, his detailed descriptions of where and when defendant had sold drugs in the past, and the two controlled buys from defendant. The controlled buys provided corroboration for the CI's reliability and probable cause to believe that defendant was currently dealing drugs. See State v. Keyes, 184 N.J. 541, 555-57 (2005); State v. Jones, 179 N.J. 377, 390-91 (2004). Like Judge Daniels, we owe deference to Judge Garafolo's decision to issue the warrant, Keyes, supra, 184 N.J. at 554, and we find no grounds to disturb Judge Daniel's order denying the suppression motion.

Defendant's additional arguments on this point were properly addressed in Judge Daniels's opinion and are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(2).2

II

We turn next to the sentencing issue. As defendant's trial attorney candidly acknowledged at the sentencing hearing, defendant was extended-term eligible by virtue of his two prior convictions for CDS distribution. See N.J.S.A. 2C:43-6(f). There was no dispute that the State was applying for the imposition of an extended term, and there was no objection to that application.

In weighing the aggravating factors, the court did not focus on the predicate convictions. Rather, the court considered defendant's extensive criminal history including twenty-three prior convictions for a vast assortment of offenses. Pursuant to State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct 1193, 89 L. Ed. 2d 308 (1986), the judge also explained his reasons for imposing consecutive rather than concurrent terms for the two CDS offenses. Given the limited scope of our review, we find no basis to disturb the sentence. See State v. Case, 220 N.J. 49, 65 (2014); State v. Bieniek, 200 N.J.601, 607-08 (2010).

Defendant's additional pro se arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 The two CDS offenses were committed on dates two years apart and were the subject of separate indictments.

2 Defendant briefly argues that there was no basis for the court to later issue an extension of the June 5 warrant. Judge Daniels considered and rejected that argument. However, defendant has waived the argument on appeal, by failing to provide us with either the order extending the warrant or the affidavit on which the extension application was based. Defendant also did not provide us with a copy of the June 5, 2008 order and CDW, however, the State provided us that document in its appendix.