STATE OF NEW JERSEY v. RICKY WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4685-03T44685-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICKY WILLIAMS,

Defendant-Appellant.

_________________________________________________________

 

Submitted October 6, 2005 - Decided

Before Judges Conley and Weissbard.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Ind. No. 02-12-1422.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Robert D. Van Pelt, Designated

Counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent (Joie Piderit, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant Ricky Williams appeals from his conviction of third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1)b(3) (count one) and second-degree distribution of CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count two). Defendant pled guilty to both charges after denial of his motion to suppress. On October 3, 2003, defendant was sentenced, in accordance with his negotiated plea agreement, to five years imprisonment with two and one-half years of parole ineligibility on count one and a concurrent sentence of five years in prison on count two.

On appeal, defendant argues that: (1) his motion to suppress should have been granted; (2) the court failed to elicit a factual basis for his guilty plea and he did not understand the nature of the charges; (3) his sentence was improper, excessive and violated his right to trial by jury and due process. We affirm defendant's conviction but remand for resentencing in light of State v. Natale, 184 N.J. 458 (2005).

The facts elicited on the motion to suppress were as follows. On May 30, 2002, at about 12:15 p.m., Elizabeth Police Officer Athanasios Mikros, along with Officer Kelly, was conducting a surveillance of the southeast corner of Jackson Avenue and Anna Street from the parking lot of a building at 1080 Anna Street; the parking lot was located on Jackson across from the area under surveillance. Mikros was conducting his surveillance while kneeling behind, and peering over, a parked car and looking through a picket fence at the rear of the parking lot. Mikros's role was to conduct the surveillance and relay descriptions of persons involved in narcotics activity to "take down units" stationed nearby, who were charged with the responsibility of arresting the described individuals.

Mikros saw two men standing on the southeast corner of Jackson and Anna in front of J&R Deli. He recognized one of the men as defendant, a person whom he had arrested previously. The other individual was later identified as James Gilford. Mikros was observing the two men from approximately seventy-five feet away and was not using binoculars. From his vantage point, at approximately 12:20 p.m., he witnessed an individual on a bicycle stop in front of Williams and Gilford. The man on the bicycle was later identified as Victor Milligan. Mikros saw Milligan engage in a brief conversation with Williams and Gilford, after which Williams entered the deli. Williams exited the deli approximately one minute later and approached Milligan. Williams accepted what appeared to be U.S. currency from Milligan, and Williams in turn handed Milligan "a small white object," held between his index finger and thumb. Milligan placed the unidentified object into a front pocket and rode his bicycle north on Jackson. Mikros notified the "take down units" of his observations and provided a description of Milligan, who was subsequently stopped by Officer Cox. A glassine envelope marked "24 hours" was found in Milligan's front pocket.

Approximately fifteen minutes later, Mikros saw Williams and Gilford "meet up." He then observed Gilford hand Williams "a small white object." The activity occurred approximately seventy-five feet away from Mikros's vantage point. Williams then walked west on Anna out of Mikros's field of vision. Mikros "notified take down units to have Mr. Williams arrested for . . . distribution of CDS heroin." Upon his arrest, Williams was searched and $112.00 was seized from his person. There were no drugs or illegal substances found on him.

Williams testified in his defense that he was arrested by two police officers at the corner of "Monroe and Anna," while at an ice cream truck with his girlfriend, Gloria Willis. Contrary to Mikros's testimony, Williams claimed that the parking lot at 1080 Anna, from where Mikros conducted his surveillance, was neither directly across the street from defendant nor seventy-five feet away from him. Rather, according to Williams, the parking lot was located on the same side of the street and about 150 feet distant from the deli which Mikros observed defendant enter. Williams denied speaking with Gilford or receiving anything from him. Although Williams recalled seeing a person riding a bicycle, he denied giving anything to or receiving anything from the person on the bicycle.

Gloria Willis also testified for the defense. Willis is defendant's girlfriend, and they were raising their sixteen-year-old daughter together. On the date of defendant's arrest, she had gone with defendant to the deli in order to buy a sandwich. Williams had been waiting in line to order sandwiches when a friend of his came into the store and called him outside. Williams had been talking to his friend for "a couple of minutes," when Gloria came out of the deli. When she exited, she saw defendant speaking with two friends who were sitting on the stoop alongside the deli, eating sandwiches. She and Williams began walking home. On their way, they stopped at an ice cream truck and purchased two ice cream cones, at which point Mikros and other police officers arrived, ordered defendant to stand against an automobile and searched him. Willis testified that she recalled seeing a person on a bicycle; however, that person was sixty feet away from defendant and she did not see defendant speak to him.

After hearing the testimony of Mikros and defendant, the motion judge delivered an oral opinion as follows:

Based upon my hearing of the testimony I find reliable facts to be as follows.

1. Officer Mikros has had significant experience. He has participated in 2000 investigations of drugs and over a thousand arrests for drugs in his career . . . which has been since 1995, about seven years.

On the date and time he was involved in a surveillance, the location of which we now all know, in a very high crime area.

Now much has been said about why that's a high crime area. It's self-evident why. He's made 30 arrests there himself on that corner of people drug dealing and drug possessing. There's no question he has experience about drugs and drug dealing and what they look like.

On the date and time he did indeed see this gentleman approach and speak to a man on a bike, the man being Mr. Milligan. Mr. Milligan, I find credible facts are, after speaking to defendant he gave him cash. How much cash we don't know. It was a bill identified as so by color and shape as a traditional U.S. bill.

In return he got a white object, small, about an inch in size. That led the officer to conclude, rightly I believe, that a drug deal had indeed gone on right in front of him. He called his backup. They stopped Milligan. They searched Milligan rightly so and they found on Milligan a bag of, apparently, drugs.

Based upon that finding they had a right to arrest this gentleman regardless of what happened with Gilford or not happened with Gilford. The event with Gilford is not really involved [in] the right to arrest this man on this particular occasion. The mere fact that he did not have on him a white object is not controlling. He was out of the officer's sight for at least a minute. God knows what happened to the white object.

I find there was probable cause to conclude that an item had been sold by this defendant to Mr. Milligan; that there was probable cause to conclude that that was drugs. That's based upon A. The location a high crime area. B. The officer's observation. C. Fact this officer knows this defendant to be a drug trafficking person having arrested him three different occasions, one of which at least was for drugs itself. The motion to suppress is, therefore, denied.

Ms. Willis was not available on the first motion hearing date but did appear two days later. After hearing her testimony, the judge briefly supplemented his earlier opinion as follows:

I have heard the lady. She has an interest obviously. She must have a lot of feeling for the gentleman. She's been with him almost 11 years. They have a child together. I don't give her in terms of credibility, I don't believe the story she's telling me.

I found when I heard this that the officer was credible. That has not changed. I do not accept the fact Mr. Williams did not go near the bike, that he had nothing to do with the man on the bike. The lady supporting Mr. Williams, he's the father of her child and she loves him, having been living with him for 11 years. Motion to suppress is denied.

We agree.

We reject defendant's assertion that the activities observed by Mikros "were ambiguous and did not suggest a narcotics transaction." To the contrary, those observations, viewed through the prism of Mikros's training and experience, his knowledge of the area where the observations were made, and his knowledge of defendant's prior involvement with narcotics, clearly amounted to probable cause. See State v. Moore, 181 N.J. 40, 46-47 (2004). In that regard, the information known to Mikros is deemed to be in the possession of his fellow officers who arrested defendant and Milligan at his direction.

Further, defendant seeks to suppress the narcotics found on Milligan, since nothing incriminating was found on his own person. However, while defendant may have standing to challenge the search of Milligan, because of his participation in the criminal activity that generated the drugs found on Milligan, State v. Mollica, 114 N.J. 329, 340 (1989), that does not mean that he had a reasonable expectation of privacy in the contents of Milligan's pocket. State v. Evers, 175 N.J. 355, 368-69 (2003). Generally speaking, one person "cannot assert the denial of another's rights." Mollica, supra, 114 N.J. at 338 (quoting State v. Johnson, 43 N.J. 572, 595 (1965), aff'd, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966)). We entertain serious doubt as to whether defendant had a sufficient privacy interest in Milligan's person to support his challenge to a search of Milligan. Nevertheless, we need not decide this issue on privacy grounds since we have determined that the search was lawful in any event.

Defendant argues that he did not provide a factual basis for his plea, as required by R. 3:9-2, because he merely responded affirmatively to questions posed by the judge. We are aware of no authority suggesting that a factual basis elicited in such a manner is infirm. See State v. Smullen, 118 N.J. 408, 415 (1990). Defendant stated that he had discussed the case with his attorney and was satisfied with her representation. He acknowledged that he had reviewed the plea form with his attorney and that all of his answers were true. He admitted that he was pleading guilty because he was guilty. He admitted in his own words that he received $10 for the bag of heroin he sold on May 30, 2002. We are entirely satisfied that defendant understood the nature and consequences of his plea and that he provided an adequate factual basis.

Defendant argues that his sentence was improper and excessive in that the judge erroneously found an aggravating factor and failed to consider a mitigating factor, as well as failed to explain his findings. Separately, defendant argues that his sentence violated the precepts of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Since we conclude that a remand is required because of Blakely, we have no need to address defendant's first sentencing contention. On remand, defendant will have an opportunity to persuade the judge that aggravating factors three and nine, N.J.S.A. 2C:44-1a(3) (9), do not apply and that mitigating factors eight, nine and eleven, N.J.S.A. 2C:44-1b(8), (9), (11), do apply. We do agree with defendant that the judge failed to adequately explain the reasons for his sentence. R. 3:21-4(g). While the judge may be brief, State v. Dunbar, 108 N.J. 80, 97 (1987), he cannot be terse to the point of being perfunctory. See State v. Kruse, 105 N.J. 354, 363 (1987). Here, after noting defendant's prior convictions, the judge merely stated, "Aggravating factors three, six and nine. Nothing mitigates." Some minimal discussion is required so that we may adequately perform our review function.

Defendant was sentenced and this appeal processed before Natale, supra, was decided. In this case, defendant was sentenced on count one to a term in excess of the presumptive. As a result, Natale requires a resentencing on that charge, notwithstanding that it resulted from a plea agreement. On the other hand, the five-year minimum term on count two does not implicate the Natale concerns. However, since there must be a resentencing on count one, and given our earlier observations respecting the judge's inadequate sentencing explanation, the judge should conduct a new sentencing hearing on both counts.

Affirmed; remanded for resentencing.

 

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A-4685-03T4

November 3, 2005