STATE OF NEW JERSEY v. PEDRO DECASTRO

NOT FOR PUBLICATION WITHOUT THE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.

PEDRO DECASTRO, a/k/a

PEDRO M. DECASTRO and

PEDRO DESASTRA,

Defendant-Appellant.

_________________________________________

February 26, 2015

Argued May 14, 2014 Decided

Before Judges Fuentes, Simonelli and Haas.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-08-0836.

Kevin Crawford Orr argued the cause for appellant.

Kimberly L. Donnelly, Special Deputy AttorneyGeneral/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Donnelly, of counsel and on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

A Union County Grand Jury returned Indictment No. 11-08-00836, charging defendant Pedro DeCastro and Manuel Marques1 with fourth degree possession of marijuana, N.J.S.A. 2C:35-10a(3) (count one); third degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11) (count two); third degree possession of marijuana with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count three); second degree possession of marijuana with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four); third degree possession of cocaine and/or Methylenedioxymethamphetamine (MDMA), N.J.S.A. 2C:35-10a(1) (count five); first degree possession of cocaine and/or MDMA with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count six); third degree possession of cocaine and/or MDMA with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count seven); second degree possession of cocaine and/or MDMA with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count eight); third degree possession of Benzylpiperazine (BZP) and/or Oxymorphone, N.J.S.A. 2C:35-10a(1) (count nine); third degree possession of BZP and/or Oxymorphone with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count ten); third degree possession of BZP and/or Oxymorphone with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count eleven); and second degree possession of BZP and/or Oxymorphone with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count twelve).

Defendant filed a motion to suppress evidence seized at his apartment as a result of a warrantless search conducted by police officers from the Elizabeth Police Department. The motion was heard on four dates spanning two months from August to October 2012. Relying on the testimony of one of the police officers who was present during the search, the motion judge found the evidence was lawfully seized pursuant to the plain view exception to the warrant requirement. Following the denial of his motion to suppress, defendant pled guilty to first degree possession of cocaine and/or MDMA with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1), pursuant to a negotiated plea agreement. Defendant was sentenced to a twelve-year period of incarceration with a four-year period of parole ineligibility.

On appeal, defendant argues the trial court erred by denying his motion to suppress because: (1) the record developed at the motion hearing did not establish a basis to uphold the seizure of the evidence under the plain view exception; and (2) the police officer's testimony at the motion hearing was not credible. As a corollary to this last argument, defendant argues the motion judge improperly excluded evidence offered to impeach the credibility of the officer's testimony. We reject these arguments and affirm substantially for the reasons expressed by Judge Frederic R. McDaniel in his oral opinion delivered from the bench on December 3, 2012.

I.

The trial court conducted evidentiary hearings on defendant's motion over four non-consecutive dates spanning two months from August to October 2012. Elizabeth Police Officer Eduardo Andino testified during three of the hearings on August 10, September 10, and October 1, 2012. We derive the following facts from Officer Andino's testimony.

At approximately 3:47 a.m. on April 17, 2011, Andino and fellow Elizabeth Police Officer Gino Quelopana responded to a call reporting a domestic dispute at a two-story, four-unit apartment building located in the City of Elizabeth. Immediately upon entering the foyer of the building, Andino and Quelopana saw broken glass on the floor that appeared to have come from the front door of the building. According to Andino, as he and Quelopana were walking upstairs, "[a] concerned neighbor appeared out of her apartment indicating where the commotion was coming from" by pointing to apartment 2L.

The officers knocked on the door of apartment 2L "probably" three times and identified themselves as police officers. Defendant opened the door "probably halfway" and asked the officers if there was a problem. Officer Andino explained that they were responding to a report of a domestic dispute; defendant admitted that there had been an argument, but claimed the woman involved had already left the apartment.

At this point, we note that Officer Andino's recitation of the events that followed varied slightly over the course of the three hearings. During the August 10, 2012 hearing, Officer Andino testified that after defendant opened the door, he moved his shoulders "six to twelve inches" to the right so he could see clearly into the apartment; he then "observed another gentleman who was sitting on a couch . . . on the other side of the room. And there was a glass table in between that couch and the door. And on that glass table was C.D.S., paraphernalia, [and] cash." Based on his training in narcotics detection, Officer Andino testified that from this vantage point he was able to identify marijuana, ecstasy, and cocaine on the glass table.

Although defendant tried to close the door to block his view, he was not able to completely prevent Andino from looking inside. Specifically, Andino "put [his] foot slightly to the front so . . . [when] [defendant] tried to close the door . . . it just bounced off [his] foot and caused it to swing back open." Andino and Quelopana arrested defendant and Marques. A search of defendant's person incident to his arrest revealed $341 and an undisclosed amount of marijuana. Marques had a "grinder" and "[a]n unlit blunt filled with marijuana." Andino testified the police seized all of the contraband evidence that was on the glass table.

The suppression hearing continued for a second day on September 10, 2012. Andino reiterated his earlier testimony describing the contraband evidence he saw on the glass table, the actions taken thereafter to seize it, and the additional evidence that was found in defendant's and Marques' possession. Andino also testified concerning a black bag containing illicit narcotics that the police found in the apartment. In response to defense counsel's questions on cross-examination, Andino specifically denied that the evidence he described seen on the glass table was in fact found inside this black bag.

The third day of this evidential hearing took place on October 1, 2012. Andino was once again the only witness to testify for the State. He described in more detail what he saw while standing at the door of the apartment. According to Andino, although he was not able to see the entire surface of the glass table, the part of the table he saw had a quantity of marijuana, an undetermined number of blue pills, illicit drug paraphernalia, and an undetermined amount of currency.

Andino testified that he saw the entire table after he entered the apartment. At that point, he saw contraband that was outside the scope of his view when he was standing at the threshold of the apartment with the door ajar. The black bag referred to on the second day of the suppression hearing was found inside the apartment. Andino described the bag as being approximately the size of a grocery paper bag with handles. According to Andino, the bag was open and contained more of the same blue pills Andino saw on top of the glass table while he was standing by the apartment's partially opened door.2

Judge McDaniel found Andino's testimony "entirely credible." Although the judge noted some "minor discrepancies" in the details of events, he considered them immaterial and insufficient to undermine the credibly of Andino's testimony overall. Judge McDaniel also denied defense counsel's application to call a private investigator he had retained to testify about photographs the investigator took of defendant's apartment on May 27, 2011, approximately six weeks after the incident, and again on September 5, 2012. Defense counsel sought to have the investigator lay a foundation to admit the photographs into evidence pursuant to N.J.R.E. 6073 to impeach Andino's credibility concerning the layout of the apartment. After considering counsels' arguments, Judge McDaniel declined to consider the photographs. He made the following finding in support of this ruling

[P]ictures that are taken well after the event about the physical plant and the layout regarding the items in the apartment or the furniture are not reliable to demonstrate the layout and the items in the apartment at the time of the arrest. Therefore I say you cannot attack the credibility of these officers with such unreliable evidence.

However, Judge McDaniel permitted the investigator to testify concerning photographs he had taken of the entry to defendant's apartment and the upper landing area. The investigator also testified concerning the dimension of the apartment's doorway and the landing area.

Ultimately, Judge McDaniel denied defendant's motion to suppress the contraband evidence seized at the time of his arrest. Based on Andino's testimony, he found the evidence was in plain view of the arresting officer or was lawfully discovered and seized as an incident to defendant's lawful arrest.

II.

Against this record, defendant appeals raising the following arguments

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS.

A. The State Failed To Prove That All Seized Contraband was in Plain View.

B. The Trial Court's Credibility Determinations Must Be Reversed.

(1) The Credibility Determinations Are Not Supported by Adequate, Substantial and Credible Evidence.

(2) The Court Below Improperly Excluded Evidence Which Impeached Officer Andino's Credibility.

Our colleague Judge Cuff recently reaffirmed, on behalf of a unanimous Supreme Court, our well-settled standard of review of a trial court's decision to grant or deny a defendant's motion to suppress evidence

Appellate courts reviewing a grant or denial of a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record. Deference to these factual findings is required because those findings are substantially influenced by an opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy. Thus, appellate courts should reverse only when the trial court's determination is so clearly mistaken that the interests of justice demand intervention and correction.

A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference. Therefore, a trial court's legal conclusions are reviewed de novo.

[State v. Gamble, 218 N.J. 412, 424-25 (2014) (citations and internal quotation marks omitted).]

After carefully reviewing the record developed before Judge McDaniel in over three days of hearings, we discern no legal reason to question his assessment of Andino's credibility. Judge McDaniel's factual findings predicated on Andino's testimony are thus "supported by sufficient credible evidence in the record" and consequently binding on this court. Ibid.

We also reject defendant's argument challenging Judge McDaniel's ruling excluding the photographic evidence proffered to impeach Andino's credibility. We are bound to uphold a trial court's evidentiary rulings "'absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). We are not at liberty to substitute our own judgment for that of the trial court. We may reverse only if "'the trial court's ruling is so wide of the mark that a manifest denial of justice resulted.'" Ibid.

Here, Judge McDaniel's evidentiary ruling to exclude these photographs was based on a sound determination concerning this piece of evidence's probative value. We discern no basis to interfere with Judge McDaniel's decision in this respect.

Finally, we reject defendant's contention that the State failed to establish the requisite requirements for the application of the plain view exception to the warrant requirement. We acknowledge that "[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). We are equally aware that the plain view doctrine is one of those recognized exceptions. State v. Mann, 203 N.J. 328, 340-41 (2010).

In order for a warrantless search to be valid pursuant to the plain view doctrine, the State must establish the following three requirements

[1] the police officer must be lawfully in the viewing area[;]

[2] the officer has to discover the evidence "inadvertently," meaning that he did not know in advance where evidence was located nor intend beforehand to seize it[;] [and]

[3] 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.

[Id. at 341 (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 70 L. Ed. 2d 695 (1984)).]

The record before us supports the motion judge's finding confirming the existence of all three factors. Judge McDaniel's determination of Andino's credibility is sufficient to establish that the arresting officer found himself lawfully in the viewing area investigating an unrelated report of a domestic dispute. He and his partner knocked on the door of defendant's apartment identifying themselves as police officers. Defendant opened the door to his apartment, permitting Andino to inadvertently discover contraband in plain view on top of a glass table. The illicit nature of the evidence was immediately obvious to Andino based on his training and experience as a police officer.

1 The charges against Manuel Marques were dismissed.

2 The black bag was not entered into evidence at the hearing and was not mentioned in the inventory of property seized from the apartment by the Elizabeth Police Department.

3 N.J.R.E. 607 states, in relevant part

Except as otherwise provided by Rules 405 [reputation evidence] and 608 [evidence of character for truthfulness], for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility[.]