STATE OF NEW JERSEY v. YUSEF TINSLEY

NOT FOR PUBLICATION WITHOUT THE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.

YUSEF TINSLEY,

a/k/a RAHEEM CRAWFORD,

RAHEEM S. CRAWFORD, RAHEM

CRAWFORD, SEAN CRAWFORD,

JEROME EDWARDS, KAREEM M.

GILFORD, KAREEM MARQUIS,

JOSEPH TINSLEY, YUSEF A.

TINSLEY and SAMUEL WOODLAND,

Defendant-Appellant.

________________________________

November 24, 2015

Submitted September 9, 2015 Decided

Before Judges Leone and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-07-1325.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the briefs).

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

PER CURIAM

The trial judge denied defendant, Yusef Tinsley's motion to suppress evidence seized by police at the time of his arrest. Defendant pled guilty to third degree possession of a controlled dangerous substance, namely cocaine, contrary to N.J.S.A. 2C:35-10(a)(1). Defendant appeals from his April 11, 2013, judgment of conviction, challenging the order denying his motion to suppress the evidence and from the four-year sentence imposed by the court.

Defendant raises the following points on appeal

POINT I

THE DEFENDANT'S CONSTITUTIONAL RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURES WAS VIOLATED WHEN THE POLICE, WITH NO VALID WARRANT, NO PROBABLE CAUSE, AND NO EXIGENCY, BROKE DOWN THE DOOR OF HIS GIRLFRIEND'S HOME AND SEIZED THE DRUGS FOUND INSIDE.

POINT II

DEFENDANT'S RIGHTS WERE VIOLATED WHEN THE TRIAL COURT REFUSED TO IMPOSE THE THREE-YEAR SENTENCE RECOMMENDED IN THE PLEA AGREEMENT AND INSTEAD IMPOSED AN EXCESSIVE FOUR-YEAR SENTENCE WITHOUT EVER CONSIDERING WHETHER THE DEFENDANT'S REASONS FOR HIS NON-APPEARANCE WARRANTED AN INCREASED SENTENCE AND WITHOUT PROPERLY WEIGHING AGGRAVATING AND MITIGATING FACTORS

We first address the motion to suppress. The trial judge held a hearing on the motion. The State presented one witness, Sergeant David Robinson (Robinson), who was one of many officers involved in the entry into defendant's girlfriend's home to effectuate his arrest. Robinson was the officer who saw and seized the bag of cocaine. Defendant testified at the hearing, as did the thirteen-year-old daughter of defendant's girlfriend.

The evidence revealed the following. The municipal court in Newark had issued an arrest warrant for defendant. The warrant stemmed from a domestic violence incident with allegations against defendant involving terroristic threats, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose.

Robinson initially attempted to find defendant at the address typed on the warrant, and later at a second address that was handwritten on the warrant.1 Robinson spoke to defendant's sister and stepfather at the second location, but was unable to locate defendant. The morning of the arrest, the domestic violence complainant informed Robinson that she had sexual relations with defendant the night prior, and that defendant told her he was staying with a girlfriend at an address on Lanark Street in Newark, New Jersey. Robinson did not conduct any surveillance of the property or obtain any information to corroborate that defendant resided there; nor did he get a search warrant or a new arrest listing that address.

Robinson was a member of the fugitive warrant squad, a group of officers from the Newark Police Department, joined by a group of Federal Marshals, who would periodically spend a day attempting to execute a series of open arrest warrants. The officers would experience both aggressive resistance and peaceful arrests with cooperation from the subjects. Prior to commencing with the warrant executions, Robinson and his team reviewed each of the defendants' criminal history, the charges each defendant was wanted for, and their photographs.

This procedure was followed before defendant's arrest, and the officers were therefore aware of his extensive criminal record, including numerous prior criminal convictions. They also knew the underlying basis for the arrest warrant was a domestic violence complaint involving allegations of terroristic threats, possession of a weapon without a permit, and possession of a weapon for an unlawful purpose. The team of at least twelve officers and Federal Marshals arrived at the girlfriend's home and surrounded it at approximately 8:00 a.m.

The girlfriend lived in the first floor apartment of a two story home. Other tenants lived on the second floor and the home also had a basement which could be accessed from the first floor. The windows in the first floor apartment where defendant was staying were a little more than six feet above ground level.

Robinson was positioned on the right side of the house near a side door. A detective was at the front door and another officer was at a third door. The other officers positioned themselves along each side of the dwelling. Robinson heard one of the team members knocking on the front door while shouting "Newark Police" and "open the door." Robinson then heard the detective in the front of the house kicking and knocking on the front door, still identifying himself as the police.

Robinson, who was standing on the right side of the house, then heard the voices of Detectives Martinez and Daniels yelling from the left side of the house, "He's coming out the window!" However, Robinson could not see the windows on the left side. Believing defendant was inside and attempting to flee, Robinson kicked in the side door which opened to a set of stairs. There was a staircase leading from the first floor to the side door and another staircase turning down to the basement. Robinson saw defendant on the stairs heading down from the first floor towards him. Upon seeing Robinson, defendant threw a bag down the stairs leading to the basement, turned around, and ran back into the apartment. Robinson recovered the bag, which contained cocaine, while several other officers pursued defendant into the home. When the police encountered defendant in the living room he was arrested without violence.

After hearing testimony and oral argument, the trial judge denied defendant's motion to suppress evidence. The judge found Robinson's testimony to be credible; determined defendant's testimony was not credible, and did not rely heavily on the testimony of the girlfriend's thirteen-year-old daughter, who had also been in the home, because it appeared she was biased and testifying in an attempt to help her mother and her mother's boyfriend, defendant, who were co-defendants at that time.

In denying defendant's motion, the trial judge reasoned the police entered the home based on exigent circumstances, and the bag of cocaine was seized during a lawful arrest. The judge also found the domestic violence complainant's tip regarding defendant's location to be reliable given her consistent communication with Robinson prior to the arrest and the fact she obtained the information about where defendant was staying directly from him. The judge stated the Lanark Street address was probably defendant's residence but made no finding as to whether or not there was a reasonable objective belief that it was his residence. She stated it was unnecessary to make that determination because she found exigent circumstances existed to justify entry into the home even if it was not defendant's residence.

Our review of a motion to suppress is limited. We must uphold a trial judge's factual findings if they are supported by sufficient credible evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014). We do so, noting that those findings "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)). Moreover, we owe deference to the judge's evaluation of witness credibility. State v. Locurto, 157 N.J. 463, 474 (1999). However, we review legal issues de novo. State v. Coles, 218 N.J. 322, 342 (2014).

Persons are guaranteed the right "to be secure . . . against unreasonable searches and seizures[.]" State v. Shaw, 213 N.J. 398, 409 (2012) (alterations in original) (quoting U.S. Const. amend. IV and N.J. Const. art. I, 7). In fact, entry into the home is the "chief evil against which the wording of the Fourth Amendment is directed." State v. Lamb, 218 N.J. 300, 314 (2014) (citation and internal quotation marks omitted). Therefore, "our jurisprudence expresses a clear preference for police officers to secure a warrant before entering and searching a home." State v. Brown, 216 N.J. 508, 527 (2014). Warrantless searches and seizures inside a home are presumptively unreasonable absent probable cause and exigent circumstances. State v. Hutchins, 116 N.J. 457, 463 (1989). If challenged by a defendant, the State is burdened with proving by a preponderance of the evidence that the search satisfies such an exception. Lamb, supra, 218 N.J. at 315. We agree with the trial judge that exigent circumstances existed in this case.

Although no prior case in New Jersey discusses a warrantless entry into a third party's home resulting from the defendant's attempt to flee from a home, we take guidance from the Supreme Court in State v. Jones, where the Court recognized that an officer with an arrest warrant has a duty to make an arrest when he sees the suspect and the suspect attempts to flee, saying

It was on the basis of that arrest warrant that the police officers in this case acted.

Once a warrant is issued, or probable cause comes into existence, it becomes an officer's duty to arrest the suspect. . . . Officers have no discretion in making arrests where there is an outstanding warrant. In fact, had the officers failed to attempt to effectuate the warrant, they would have been derelict in their duties. Rule 3:3-3(b) states that [t]he warrant may be executed and the summons served at any place within this State.

[ 143 N.J. 4, 14 (1995) (alterations in original) (emphasis added in original) (citations and internal quotation marks omitted).]

To search for the subject of an arrest warrant in the home of a third party, the police must possess a search warrant, obtain consent, or have exigent circumstances. State v. Brown, 205 N.J. 133, 145 (2011). The parameters of what constitutes exigent circumstances are not clearly defined because they vary from case to case. State v. Johnson, 193 N.J. 528, 552 (2008). Generally, exigent circumstances arise when "inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." Id. at 553.

Destruction of evidence was not an issue in this case since the police had no knowledge of drugs being in the house before they entered. However, the potential danger to police and others in and near the home associated with an attempted escape by defendant, along with the duty to arrest a fleeing individual for whom the police had an arrest warrant, and the serious underlying allegations, were some of the circumstances that created urgency in this case.

The fact an arrest warrant was already in hand would not alone justify entrance into the home unless it was defendant's residence "when there is reason to believe the suspect is inside." Brown, supra, 205 N.J. at 145. However, the existence of an arrest warrant is part of the overall circumstances that, combined with other exigent circumstances, justified the entry.

The Supreme Court has elaborated on factors to consider when determining whether an exigency exists, including

the degree of urgency and the amount of time necessary to obtain a warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect was armed or dangerous; and the strength or weakness of the underlying probable cause determination.

[State v. Walker, 213 N.J. 281, 292 (2013) (quoting State v. Deluca, 168 N.J. 626, 632-33 (2001)).]

Multiple criteria set forth by the Supreme Court are applicable in this case. First, a complaint-summons was issued against defendant alleging terroristic threats, possession of a weapon without a permit, and possession of a weapon for an unlawful purpose. The officers reasonably viewed the situation as "urgent", as they had an objective reasonable belief the defendant was inside the dwelling given that he was seen by officers while attempting to flee through a window. Robinson had an objective reasonable belief that fellow officers were engaged in an attempt to prevent defendant's escape and that a potentially dangerous confrontation with the police was precipitated by defendant's attempt to flee.

We do not find merit in defendant's contention that "hot pursuit" of a suspect must, in all circumstances, involve a chase from a public location to a private location. We find this case to be analogous to United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976). In Santana, following a drug transaction, the defendant was seen by police standing in the "doorway" of her dwelling. 427 U.S. at 40, 96 S. Ct. at 2408, 49 L. Ed. 2d at 304. After she retreated into the vestibule of her home, the police chased her into the home. Id. at 40-41, 96 S. Ct. at 2408-09, 49 L. Ed. 2d at 304.

In upholding the warrantless search under the "hot pursuit" exception, the Supreme Court of the United States found that, although defendant was technically in a "private" place while standing in her doorway, she did not have "any expectation of privacy there." Id. at 42, 96 S. Ct. at 2409, 49 L. Ed. 2d at 305. The Supreme Court based that determination on the fact the defendant "was not merely visible to the public but was exposed to public view, speech, hearing, and touch . . . ." Ibid. They therefore found the case to involve a "hot pursuit," noting that it involves some "sort of a chase, but it need not be an extended hue and cry 'in and about [the] public streets.'" Id. at 43, 96 S. Ct. at 2410, 49 L. Ed. 2d at 305.

We agree with the motion judge that the officers in this case became engaged in a hot pursuit of defendant when he attempted to flee from the home through a window. Given the need to ensure public and police safety, the officers acted reasonably by entering the home to apprehend defendant. Therefore, the order denying defendant's motion for the suppression of evidence is affirmed.

We turn to defendant's appeal of his sentence. The sentence was imposed by a different judge than the motion judge. On May 31, 2012 defendant entered into a plea agreement at a hearing held before the sentencing judge. At that time defendant entered a plea of guilty with an understanding that the State was recommending his sentence be three years in New Jersey State Prison. The judge questioned defendant in great detail about his understanding of the plea agreement. As part of that hearing the following exchange took place between the judge and defendant

COURT: You will return to this courtroom for sentencing on July 23, 2012. And you are to stay out of all further criminal legal trouble between now and sentence. If you follow these instructions you can fairly expect that the sentence you will receive is three years New Jersey State Prison. And if you receive a more severe sentence you will receive permission to take back your plea of guilty.

However, if you violate these instructions, then equally fairly you can expect I will issue a warrant for your arrest and we will imprison you for up to five years in State Prison and you will not receive permission to take back your plea of guilty. Do you understand those instructions and the consequences for the sentence if you violate them?

DEFENDANT: Yes.

COURT: Understanding what I've just described about sentence -- about instructions and consequences for sentence if you violate, are you still willing to offer your plea of guilty?

DEFENDANT: Yes.

Despite the fact defendant acknowledged that appearing for sentencing was a condition of his receiving the recommended three-year sentence, and his acknowledgment that he would not be allowed to withdraw his guilty plea and could be sentenced to a maximum of five years in State Prison for failing to appear, defendant did not appear for his sentencing. Defendant remained a fugitive for over 6 months until he was arrested on other charges. His sentencing hearing on April 8, 2013 was held approximately nine months after the date it was originally scheduled. At the sentencing hearing, the judge again patiently explained to defendant that as a result of his failure to appear for his original hearing, the judge was going to impose a sentence that he found appropriate as opposed to the sentence which had been originally recommended by the prosecutor's office. Defendant was specifically asked by the judge if he had anything that he wanted to say to the court before he was sentenced. Defendant chose not to make any statement. His counsel argued to the court that due to the nature of the crime a three-year sentence was appropriate.

The judge found there were three aggravating factors: first, the need to deter defendant and others from violating laws of the state; second, the seriousness and extent of the five prior criminal convictions for which defendant received state prison sentences; and third, the risk that he would commit another offense in light of his repeated violations. The judge found no mitigating factors. He sentenced defendant to four years in state prison which he noted is in the high range of the scale for the offense in question. He did not impose the maximum sentence of five years.

The judge explained why he imposed each of the aggravating factors. Defendant now argues on appeal that he was employed and obtained his GED, and that the judge should have applied mitigating factor nine which is applicable when the "character and attitude of [a] defendant indicate [] he is unlikely to commit another offense[.]" N.J.S.A. 2C:44-1(b)(9). We agree with the judge that no mitigating factors applied based on the evidence before the court. We find the judge carefully weighed the applicability of mitigating and aggravating circumstances and carefully explained his decision on the record. Our role when reviewing a sentence is to determine whether it follows the legislative guidelines, whether proper factors were considered and if there was competent credible evidence in the record to support the findings by the sentencing judge. Our role is not to substitute our judgment for that of the sentencing court, and where there is substantial evidence to support findings of the court, the sentence should be affirmed. State v. Roth, 95 N.J. 334, 362-65 (1984).

We have previously held it is acceptable to have a provision in a plea agreement allowing the judge to impose a longer sentence if a defendant fails to appear for his sentencing. State v. Subin, 222 N.J. Super. 227, 238-39 (App. Div.), certif. denied, 111 N.J. 580 (1988). However, a judge cannot impose a longer sentence merely based on the defendant's failure to appear, especially if the defendant has a good explanation for his non-appearance. State v. Wilson, 206 N.J. Super. 182, 184 (App. Div. 1985). Ordinarily, the court must hold a hearing where it considers the defendant's reasons for non-appearance and thereby determines whether under the totality of the circumstances an enhanced sentence is justified. State v. Shaw, 131 N.J. 1, 16-17 (1993).

Here, defendant had an opportunity to address the court at his sentencing and gave no reason for his non-appearance. He also offers no reason on appeal for not appearing on the scheduled sentencing date and never contacting the court until he was arrested again on new charges many months later. This case is not like Subin, where a higher sentence would necessarily be imposed if the defendant failed to appear at his sentencing. Subin, supra, 222 N.J. Super. at 229. The court did not determine the length of the sentence based on defendant's failure to appear; rather the judge found defendant's failure to appear allowed him to impose the sentence he believed was appropriate after evaluating all relevant factors. Defendant's arguments as to his sentencing have no merit. We affirm both the denial of the motion to suppress and the sentence.

Affirmed.

1 The domestic violence complainant gave Robinson the second address, which was the residence of defendant's stepfather and sister.