STATE OF NEW JERSEY v. CAO TANG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1213-04T41213-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CAO TANG,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 27, 2006 - Decided December 21, 2006

Before Judges Wefing and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-08-1940.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, of counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Brandy B. Galler, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After denial of his suppression motion, defendant Cao Tang entered a guilty plea to first degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(1). He was sentenced in accordance with the plea agreement as a second degree offender to a term of nine years subject to thirty-six months parole ineligibility.

The facts giving rise to this charge were initiated on December 15, 2001 when a Bergen County Detective, Dan Lee, was at a nightclub in New York City. He was approached by co-defendant Hong Luo, who asked if he needed any "drops." The term "drops" is used to describe "soft" drugs like Ecstasy. Lee responded, "No," and Luo said, "Listen, do you need anything, you know, just come to me." Lee told Luo that he lived in New Jersey and that if Luo wanted to do business he had to bring "like a thousand pills" to New Jersey. Luo said, "No problem" and gave Lee his phone number.

Lee reported the incident to his supervisor and a drug-buy arrangement was made whereby Luo would drive a white Lexus to the Garden State Plaza Mall in Paramus and meet Lee behind The Wiz with a supply of pills.

On December 18, 2001, Lee met Luo when Luo arrived alone in the white Lexus. Lee asked to see the drugs. Luo told Lee that his friends on the other side of the mall had them. When Luo drove to the other side of the mall to get the drugs, he was observed by other undercover officers. When Luo returned three minutes later and showed Lee a plastic bag containing what appeared to be Ecstasy pills, Lee and the backup team arrested him. Meanwhile, the undercover officers who had observed Luo talk to three men on the other side of the mall, approached the two remaining men as they were standing outside a restaurant. The two men - one of whom was defendant - were placed under arrest, handcuffed and searched. The third man was not located. Eight bundles of Ecstasy were found in defendant's jacket pocket. Seven bags of Ecstasy pills were seized from co-defendant Huang.

At the suppression hearing, Lee testified along with Detective Diane Armbruster who had observed Lee speak with Luo in the white Lexus. Armbruster testified that she followed Luo and identified defendant as one of the men Luo spoke to outside the restaurant before Luo returned to Lee behind The Wiz.

In this appeal, defendant argues:

POINT ONE

SINCE THE LEGAL BASIS PROFFERED BY THE STATE WAS THAT THE SEARCH OF THE DEFENDANT WAS INCIDENT TO AN ARREST, THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE LACKED PROBABLE CAUSE TO ARREST THE DEFENDANT

POINT TWO

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BASED ON DUE PROCESS ENTRAPMENT

POINT THREE

UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE, THE NINE (9) YEAR BASE CUSTODIAL SENTENCE SHOULD BE VACATED AND THE STATUTORILY MANDATED MINIMUM FIVE (5) YEAR BASE CUSTODIAL SENTENCE IMPOSED INSTEAD BECAUSE PURSUANT TO THE PLEA AGREEMENT THE DEFENDANT WAS TO BE SENTENCED FOR A SECOND DEGREE CRIME

Defendant first argues that the trial court erred in denying his suppression motion because "it failed to properly distinguish between an investigative detention and an arrest." Defendant's argument draws a distinction without a difference.

Probable cause for an arrest exists where the totality of the circumstances causes the police to reasonably believe that an offense "'has been or is being committed.'" State v. Nishina, 175 N.J. 502, 515 (2003) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)); see also State v. Novembrino, 105 N.J. 95, 122 (1987). A warrant is not required for any search made incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). Under these circumstances, where the police officers observed first-hand the exchange between Luo and the co-defendants, the officers had probable cause to arrest the co-defendants without first undertaking a field investigation. See Nishina, supra, 175 N.J. at 515. The trial judge properly denied defendant's motion to suppress because the items seized in the search incident to arrest were admissible.

Defendant next argues that the indictment should have been dismissed on the ground of entrapment. Without detailing his argument, defendant merely asserts that Detective Lee "authored" the crime and thereby entrapped defendant.

With respect to defendant's second point, "'Due process entrapment . . . is an involvement based doctrine, which focuses on the government's involvement in the crime, not merely on whether that conduct objectively and subjectively induced or caused the crime.'" State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004) (quoting State v. Johnson, 127 N.J. 458, 470 (1992)). "[T]he State has the burden of disproving due process entrapment by 'clear and convincing evidence.'" Id. at 455 (quoting State v. Florez, 134 N.J. 570, 590 (1994)).

In determining whether due process entrapment occurred, the court must consider the following factors:

(1) whether the government or the defendant was primarily responsible for creating and planning the crime; (2) whether the government or the defendant primarily controlled and directed the commission of the crime; (3) whether[,] objectively viewed[,] the methods used by the government to involve the defendant in the commission of the crime were unreasonable; and (4) whether the government had a legitimate law enforcement purpose in bringing about the crime.

[Johnson, supra, 127 N.J. at 474.]

Here, Luo approached Lee in New York, offering to sell drugs to the detective. When Lee told Luo he lived in New Jersey, Luo volunteered to deliver the drugs to New Jersey. Defendant was not even the contact for the "buy;" it was Luo who gave his phone number to Lee and told Lee to call if he wanted to buy drugs. Defendant came to New Jersey with the co-defendants and was observed transferring the drugs to Luo who attempted to sell them to Lee. Defendant has no basis for an entrapment claim. The trial judge acted well within his discretion in denying defendant's motion to dismiss.

In his third point, defendant argues that his sentence exceeded the Blakely and Natale parameters. Here, the plea agreement called for defendant to be sentenced as a second degree offender to a term of nine years. He argues that because the nine-year term exceeds the presumptive or mid-range term for a second degree offense, it violates his due process rights. The State responds that defendant agreed to the imposition of the nine-year term, which was "well below the prescribed statutory maximum for the [first degree] crime to which he pled guilty."

In Blakely, the United States Supreme Court held that a defendant may not be sentenced above the presumptive term unless the jury found the aggravating factors - other than the defendant's prior criminal convictions - beyond a reasonable doubt. 542 U.S. at 300-02, 124 S. Ct. at 2535-37, 159 L. Ed. 2d at 411-13. In Natale, our Supreme Court held that sentences above the presumptive or mid-range term violate a defendant's constitutional rights unless the sentencing judge finds that the defendant's prior criminal history warrants a greater sentence or the jury finds the aggravating factors warranting a greater term. 184 N.J. at 484. Blakely and Natale apply to plea agreements as well as jury verdicts. Id. at 495.

In State v. Anderson, 374 N.J. Super. 419 (App. Div.), certif. denied, 185 N.J. 266 (2005), we relied on Blakely and held that in entering a guilty plea the "defendant - although not acknowledging aggravating factors beyond the 'elements' of the offenses - acknowledged exposure to the sixty-three-month sentence imposed in exchange for his waiver of trial by jury." Id. at 424. There, however, the sentencing "judge found that aggravating factors 3, 6 and 9 applied, that there were no mitigating factors, and 'that the aggravating factors substantially outweigh[ed] the non-existent mitigating factors.'" Id. at 422 n.1. The Supreme Court noted in Natale that in Anderson, we upheld the sentence "because the defendant implicitly agreed to judicial factfinding to support the sentence the court said it would impose." Natale, supra, 184 N.J. at 495 n.12.

Here, defendant pled guilty to a first degree crime warranting a presumptive or mid-range sentence of fifteen years. N.J.S.A. 2C:44-1f(1)(b). The plea agreement, however, provided for defendant to be sentenced as a second degree offender, i.e., below the minimum term for a first degree offense. During the plea colloquy, defendant engaged in the following exchange with the judge:

Q. Do you understand the sentence?

A. Yes.

Q. Let me go over it to make sure our understanding is the same.

It appears in exchange for your plea of guilty to count 1 which is a crime of the first degree[,] the State of New Jersey agrees that the offense for sentencing purposes, that is [the] period of incarceration would be treated as if it was a crime of the second degree.

Further, the State of New Jersey agrees that it will recommend to the Court or to the Judge that you be encarcerated [sic] for a period of nine years with a 36-month parole ineligibility period. Do you understand? That means you must serve at least 36 months regardless of the length of the period of incarceration, do you understand, assuming, of course, it's over three years.

Do you understand your lawyer can argue for a period of incarceration which is less than nine years? Do you understand?

A. Yes.

Q. But there will always be that period of parole ineligibility, do you understand?

A. Yes.

Q. Do you understand that you will be required to pay certain financial penalties which I will go over later in this inquiry?

A. Yes, I do.

Q. Now, other than the recommendation we have just discussed, have any promises or representations been made to you in exchange for your plea of guilty? You have to answer yes or no.

A. No.

Q. Has anyone threatened you to enter a plea of guilty?

A. No.

Q. Do you understand until I or the sentencing judge reviews the presentence report I or that Judge will not know what sentence to impose?

A. Yes.

At sentencing, defense counsel acknowledged that the plea agreement was negotiated in accordance with the Brimage guidelines, but argued that the court was not bound by Brimage and could impose a lesser sentence. The court found aggravating factors 3, 9 and 11 and mitigating factor 7. Aggravating factor 11, commonly referred to as the "cost of doing business" factor, states:

(11) The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices.

"By its very terms, that provision is inapplicable unless the judge is balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502 (2005). In sentencing defendant as a second degree offender in accordance with the plea agreement, a probationary term was not an option and aggravating factor 11 did not apply. We, therefore, remand for reconsideration of the sentence without taking aggravating factor 11 into account.

The conviction is affirmed. The matter is remanded for reconsideration of the sentence.

 

The plea agreement indicates that defendant was to be treated as a second degree offender. The judgment of conviction, however, does not reflect that amendment to the charge. Since we are remanding for resentencing, the judgment should be corrected to reflect the second degree sentence.

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

State v. Natale, 184 N.J. 458 (2005).

542 U.S. at 310-12, 124 S. Ct. at 2541-42.

State v. Brimage, 153 N.J. 1, 23, 25 (1998) (holding that plea agreement guidelines must be consistent throughout the State and that prosecutors must state on the record the reasons for any departure from the guidelines).

N.J.S.A. 2C:44-1(a)(3), (9) and (11).

N.J.S.A. 2C:44-1(b)(7) provides that a defendant's lack of "prior delinquency or criminal activity" may be considered as a mitigating factor in sentencing.

(continued)

(continued)

11

A-1213-04T4

December 21, 2006