STATE OF NEW JERSEY v. DONTAIE ANDERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0796-05T40796-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONTAIE ANDERSON,

also known as

JERRY MATTHEWS,

Defendant-Appellant.

_______________________________________

 

Submitted December 6, 2006 - Decided December 29, 2006

Before Judges C. S. Fisher, Yannotti and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-07-00859.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Tabakman, Designated Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Johanna Barba Jones, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Dontaie Anderson appeals from his convictions on certain drug offenses and the sentences imposed. For the reasons that follow, we affirm the convictions but vacate the sentences and remand for re-sentencing.

Defendant was charged under a Union County indictment with possession of heroin, N.J.S.A. 2C:35-10a(1) (count two); possession of cocaine, N.J.S.A. 2C:35-10a(1) (count three); possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count four); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5 (3) (count five); possession of heroin with intent to distribute on or within school property, N.J.S.A. 2C:35-7 (count six); possession of cocaine with intent to distribute on or within school property, N.J.S.A. 2C:35-7 (count seven); distribution of heroin, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count eight); distribution of heroin on or within school property, N.J.S.A. 2C:35-7 (count nine); and obstructing the detection or investigation of a crime, N.J.S.A. 2C:29-1 (count ten). At trial, the judge dismissed counts eight and nine. The jury thereafter found defendant guilty on counts two, three, four, and five; and not guilty on counts six, seven, and ten.

The judge granted the State's motion for imposition of extended term sentences pursuant to N.J.S.A. 2C:44-3a. The judge merged count two with count four and sentenced defendant to a seven-year term of incarceration, with a two-and-one-half-year period of parole ineligibility. The judge merged count three with count five and imposed an extended term sentence of seven years, with a two-and-one-half-year period of parole ineligibility, concurrent with the sentence imposed on count four. Appropriate fines and penalties also were imposed. This appeal followed.

Defendant raises the following contentions for our consideration:

I. THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS.

II. THE CHARGE TO THE JURY IN ITS ENTIRETY WAS CONFUSING, MISLEADING AND PREJUDICED THE DEFENDANT.

III. THE TRIAL COURT ERRED BY RULING THAT THE PRIOR CONVICTIONS OF THE DEFENDANT WOULD BE ADMISSIBLE IF HE TESTIFIED.

IV. THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTLY EXCESSIVE.

In a supplemental pro se brief, defendant raises the following additional point:

THE TRIAL COURT ERRED BY MISINTERPRETING FACTS AND DENYING THE MOTION TO DISMISS.

I.

We turn first to defendant's contention that he was arrested without probable cause.

Probable cause is "less than legal evidence necessary to convict though more than mere naked suspicion." State v. Evers, 175 N.J. 355, 381 (2003) (quoting State v. Mark, 46 N.J. 262, 271 (1966)). Probable cause is "a 'well-grounded' suspicion that a crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). To determine whether probable cause exists, the court must make a practical, common sense determination that, in light of all of the circumstances, there is a fair probability that a crime has been or is being committed. State v. Moore, 181 N.J. 40, 46 (2004) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)).

The evidence presented at the suppression hearing established that on March 10, 2004, Detective Romeo Simeon (Simeon) and Sergeant Michael Richards (Richards) of the Plainfield Police Department were executing a search warrant for narcotics in a part of the City that Simeon described as a "high narcotic crime area." Simeon and Richards were in an unmarked vehicle. They were not wearing their uniforms but their jackets were marked "Police" and they were in possession of other police paraphernalia. From the parked van, Simeon saw defendant and Dominque Barany (Barany). Simeon said that he knew them both from prior narcotics investigations.

Simeon testified that defendant and Barany had a brief conversation. Barany then handed defendant paper currency and he handed her certain "small items." Barany looked at the items, inspected them, and shook her head from left to right, in what looked to Simeon like a "no response." Barnay handed the items back to defendant and defendant returned the currency to Barnay. Simeon stated that, based on his experience, which included witnessing hundreds of narcotics transactions, he believed that he had witnessed a drug transaction.

Simeon said that after Barany handed the items back to defendant, another individual came out of a nearby deli. Simeon identified the individual as Matthew Williams (Williams), who Simeon also recognized from prior narcotic investigations. Defendant called out to Williams, Williams walked over to defendant and Barany, and the three individuals had a brief conversation. Barany then handed Williams the currency that she previously had given to defendant, and which defendant had returned to her. Williams put the currency in his pocket and walked down the street. Before he turned the corner, Williams reached towards the back of his pants, in the area of his buttocks, between his skin and pants, and pulled out what appeared to be a plastic bag. Williams walked around the corner.

Barany walked down the street in the same direction. Williams came back into view at the intersection. At that point, Williams handed Barney some small white envelopes. Barany inspected the items, closed her hand into a fist and walked with Williams towards defendant. Williams looked at the van in which Simeon and Richards were seated. Simeon testified that Williams looked surprised and appeared to say something about the vehicle to Barany and defendant, who both looked directly at the van with "startled, surprised look[s]." Defendant reached towards his mouth with his hand. It appeared to Simeon that defendant put something in his mouth and swallowed. Simeon said that, based on his training and experience, he believed that he had observed defendant swallow narcotics in order to avoid prosecution. Simeon and Richards exited the police van and detained defendant, Williams, and Barany. The officers directed Barany to open her hand. When she did so, two glassine folds of white powder dropped to the sidewalk. Simeon suspected that the white substance was heroin. Defendant, Williams and Barany were arrested.

Defendant argues that probable cause for his arrest did not exist because, according to defendant, Simeon could not have been sure of what he had seen pass between defendant and Barany. Defendant contends that the items that defendant passed to Barany could have been purely innocent. Defendant further points out that when defendant was arrested, he did not have any illegal drugs in his hands or pockets and he had only $6 on his person. Defendant asserts that Williams' actions were far more suspicious than his own, and all of his actions could be characterized as innocuous.

We disagree. In our view, the trial judge properly determined that there was sufficient evidence from which the arresting officers could reasonably believe that two drug transactions had taken place, the first involving defendant and Barany and the second involving Barany and Williams.

In this regard, we note that defendant, Williams, and Barany were all known to Simeon from prior drug investigations. They were observed in an area described by Simeon as a "high narcotic crime area." Simeon had extensive training and experience in narcotics investigations and testified that, based on his experience, he witnessed drug transactions and an effort by defendant to swallow the evidence. Simeon also noted the surprised looks on the faces of the suspects when they realized that the police had observed their actions from the van.

Based on the totality of the circumstances, the trial judge correctly found that the officers had probable cause to arrest defendant. The judge's findings are entitled to our deference because they are supported by substantial evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)).

II.

Defendant next argues that the judge erred in denying his motion to suppress the sandwich baggie of cocaine and heroin that was found on defendant's person following his arrest. The following facts inform our decision on this point. After he was taken into custody, defendant was transported to the Plainfield police headquarters, where he was processed. Detective Kevin O'Brien (O'Brien) testified that defendant was placed in a small cell. Barany previously had informed Simeon that defendant was concealing narcotics in the back of his pants, near his buttocks. Another officer informed O'Brien that he found narcotics in the police car used to transport defendant to headquarters.

O'Brien testified that, in accordance with the department's procedures, he asked Sergeant Daniel Passerelli (Passerelli), who was the watch commander for the day, for permission to conduct a strip search of defendant. Passerelli granted permission. O'Brien said that he and Simeon walked defendant to a secure area of the building, out of view of all personnel and the other prisoners.

O'Brien asked defendant if he had narcotics on his person. Defendant responded, "[N]o." Defendant had his clothes on. O'Brien conducted a hand search near defendant's buttocks. O'Brien said that he felt "an unusual bulge" in the buttocks area. Based on his training and experience, O'Brien believed the defendant was in possession of narcotics. O'Brien pulled defendant's underwear away from his body and performed a visual inspection with a flashlight. He did not ask defendant to undress or bend over. Defendant was standing straight up. In the cleavage of defendant's buttocks, O'Brien saw a clear plastic bag.

O'Brien asked defendant to remove the bag. He refused. O'Brien then asked defendant to remove his clothing. O'Brien said that he could "really see the bag at that point." The bag was between the cleavage in the area of defendant's buttocks. O'Brien informed Passerelli. Defendant was again asked to remove the bag. He refused and O'Brien removed the bag by pulling it.

According to O'Brien, the officers maintained control of defendant so that he would not resist the effort to remove the bag. O'Brien said that he did not use any instrument to remove the bag. He said that there was no indication that defendant was in any pain when the bag was removed. There also was no bleeding and no medical attention was required. O'Brien did not manipulate defendant's body in any way and he did not inspect defendant's anal cavity.

Defendant contends that he was subjected to a cavity search, not a mere strip search. Defendant argues that he should have been transported to a medical facility or a doctor should have been summoned to conduct the search. Defendant further contends that there is no support in the evidence for the judge's finding that the bag was protruding from the anal cavity, thereby allowing its extraction by O'Brien.

Again, we disagree. "The police may perform a warrantless search of a person incident to an arrest." State v. Hayes, 327 N.J. Super. 373, 378 (App. Div. 2000) (citing United States v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974) and United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)). In addition to constitutional limitations on police searches, "strip searches" and "body cavity searches" are regulated by statute. Id. at 379-80.

The statute governing "strip searches" provides in pertinent part that a person "who has been detained or arrested for commission of an offense other than a crime" shall not be subjected to a "strip search" unless: 1) the person is lawfully confined in a municipal detention facility; 2) the search is based on reasonable suspicion that a weapon, illegal drug, or contraband may be found; and 3) the search is authorized pursuant to regulations adopted by the Commissioner of the Department of Corrections. N.J.S.A. 2A:161A-1c.

The statute governing "body cavity searches" provides in pertinent part that a person who is "detained or arrested for commission of an offense other than a crime" shall not be subjected to a "body cavity search" unless: 1) the person is legally confined in an adult correctional institution; 2) the search is based on reasonable suspicion that a weapon, illegal drugs, or contraband may be found; and 3) the search is authorized pursuant to regulations adopted by the Commissioner of the Department of Corrections. N.J.S.A. 2A:161A-2b.

The term "strip search" is defined to mean "the removal or rearrangement of clothing for the purpose of visual inspection of the person's undergarments, buttocks, anus, genitals or breasts." N.J.S.A. 2A:161A-3a. The term "body cavity search" is defined to mean "the visual inspection or manual search of a person's anal or vaginal cavity." N.J.S.A. 2A:161A-3b.

Here, the trial judge properly found that the removal of the plastic bag from the crevice in defendant's buttocks was a "strip search" rather than a "body cavity search." The trial judge credited O'Brien's testimony that he felt the bulge in defendant's pants when he patted the outside of his clothing near the buttocks. The judge further accepted O'Brien's testimony that he was clearly able to see the plastic bag protruding from the cleavage in defendant's buttocks area.

The judge viewed the bag and determined that based on its size, it was not possible for the bag to be visible and within the defendant's anal cavity. The judge noted that defendant had testified that the bag was "probably" sticking out of the cheeks of his buttocks. The judge stated that there was "no suggestion" that the plastic bag was in defendant's anal canal and no evidence that a substantial portion of it was "stuck in the anal canal."

The judge's findings are based upon substantial evidence in the record. Locurto, supra, 157 N.J. at 470-71. In our view, the evidence clearly supported the judge's conclusion that defendant had been subjected to a "strip search" not a "body cavity search."

The evidence also established that the strip search complied with the regulations adopted by the Commissioner of the Department of Corrections. The "strip search" was approved by Passarelli, the custody staff member in charge. N.J.A.C. 10A:34-2.17(a). The officers had reasonable suspicion to believe that defendant was concealing contraband. N.J.A.C. 10A:34-2.17(b)(iii). The search was conducted at a location where it could not be observed by unauthorized persons. N.J.A.C. 10A:34-2.17(c)(1). It was conducted by a person of the same gender along with "the number of custody staff deemed reasonably necessary to provide security." N.J.A.C. 10A:34-2.17(c)(2) and (3).

Moreover, because the search was conducted in compliance with N.J.S.A. 2A:161A-1 and N.J.A.C. 10A:34-2.17, it satisfied applicable constitutional requirements. Hayes, supra, 327 N.J. Super. at 381 (noting that the statute governing strip searches provides greater protections than those afforded under the Fourth Amendment to the United States Constitution).

III.

Defendant next argues that the judge should have charged the jury under State v. Clawans, 38 N.J. 162, 171-72 (1962), because the State did not present Detective Simeon as a witness at trial, even though Simeon had testified at the suppression hearing. Defendant asked the judge to instruct the jury that it should draw an adverse inference from the State's failure to call Simeon as a trial witness. The judge denied the motion.

In Clawans, the Court stated, "Generally, failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." Id. at 170. However, before such an inference can be drawn, the witness must be "within the power of the party to produce" and it must appear that "the testimony would have been superior to that already utilized in respect to the fact to be proved." Id. at 171. The inference is not proper if "the witness is for some reason unavailable or is either a person who by his position would be likely to be so prejudiced against the party that the latter could not be expected to obtain the unbiased truth from him . . . ." Ibid. In addition, the inference may not be drawn if the testimony "would be cumulative, unimportant or inferior to what had been already utilized." Ibid.

We are satisfied that the judge correctly found that a Clawans charge was not warranted in this case. Simeon was available as a witness to the State and to the defense. In addition, Simeon's testimony would have been cumulative to Richards' testimony regarding the drug transactions, which both Richards and Simeon had observed. Simeon's testimony also would not have added anything to O'Brien's testimony regarding the strip search because O'Brien had performed the search. Moreover, the judge properly assumed that Simeon would have provided unbiased testimony had he been called as a witness by the defendant. In these circumstances, defendant was not entitled to a Clawans charge.

IV.

Defendant argues that the trial judge erred in ruling that, if he testified, his prior convictions could be used for impeachment purposes. The contention is entirely without merit.

Here, the judge determined that defendant's three prior indictable convictions were admissible under N.J.R.E. 609 for impeachment purposes in the event that defendant testified. Defendant was convicted on April 4, 1997, for a robbery committed on August 1, 1996, and a burglary committed on September 6, 1996. Defendant also was convicted on June 16, 2003, for possession of narcotics. We discern no abuse of discretion in the judge's decision to allow use of these convictions for impeachment purposes.

We are convinced that there is no merit to the contention that the convictions were too remote. In State v. Sands, 76 N.J. 127, 144-45 (1978), the Court stated:

The key to exclusion is remoteness. Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.

Defendant's convictions in 1997 were not too remote to use for impeachment purposes. Indeed, they were for crimes committed only about eight years prior to the offenses at issue in this case. Defendant's intervening conviction in 2003 for unlawful possession of narcotics further supported the judge's finding that the 1997 convictions were not too remote for use in the event defendant took the stand. Moreover, all of the convictions were relevant to defendant's credibility.

V.

Finally, defendant argues that his sentence is excessive. Defendant recognizes that he met the criteria under N.J.S.A. 2C:44-3a for imposition of an extended term as a persistent offender. However, defendant contends that the judge erred in weighing the aggravating and mitigating factors and should not have imposed an extended term sentence. Defendant argues that his sentence should be reduced to four years, and the period of parole ineligibility should be eliminated.

The State notes that under N.J.S.A. 2C:44-5a, the judge was only authorized to impose one extended term of incarceration. See State v. Papasavvas, 163 N.J. 565, 627 (2000). Thus, the judge erred by imposing extended term sentences on both counts four and five. In addition, the State concedes that defendant is entitled to be re-sentenced pursuant to State v. Pierce, 188 N.J. 155 (2006). We agree.

Therefore, we affirm defendant's convictions. However, we vacate the sentences imposed on counts four and five. We remand for re-sentencing pursuant to N.J.S.A. 2C:44-5a and Pierce, supra, 188 N.J. at 173-74.

We have considered all of the other contentions raised by defendant and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed in part, reversed in part and remanded for re-sentencing.

 

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A-0796-05T4

December 29, 2006