STATE OF NEW JERSEY v. GARY WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2180-04T42180-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY WILLIAMS,

Defendant-Appellant.

________________________________________

 

Submitted: June 5, 2006 - Decided June 19, 2006

Before Judges A. A. Rodr guez and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 03-05-0997 and 03-06-1048.

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

Zulima V. Farber, Attorney General, attorney for respondent (Robyn B. Mitchell, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

After defendant Gary Williams' motion to suppress evidence seized on February 23, 2005 was denied, he entered a negotiated guilty plea to count 2 of Atlantic County Indictment Number 03-05-997C charging him with first degree possession of CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1); and counts 4 and 5 of Indictment Number 03-06-1048C charging second degree eluding a police officer, N.J.S.A. 2C:29-2b; and third degree possession of a handgun, N.J.S.A. 2C:39-5b. The State agreed to dismiss the other charges and to recommend concurrent custodial terms not to exceed twelve years with a seventy month parole disqualifier. These sentences were to run consecutive to a custodial term that defendant was already serving. The sentencing judge imposed on the first degree conviction a twelve-year term with a seventy month parole disqualifier to run concurrent with the terms imposed for Indictment No. 03-06-1048C. On that indictment, he imposed concurrent terms aggregating ten years with a five-year parole disqualifier.

On appeal defendant contends the following:

POINT I

THE MOTION COURT REVERSIB[LY] ERRED IN REJECTING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE EVIDENCE SEIZED AS THE PRODUCT OF AN ILLEGAL, WARRANTLESS SEARCH AND SEIZURE. (U.S. CONST. AMENDS. IV & XIV; N.J. CONST. (1947) ART. I, PARA. 7)

POINT II

AS THE RESULT OF THE REVERSAL OF HIS DENIED SUPPRESSION MOTION, WILLIAMS' SENTENCES RESULTING FROM HIS SUBSEQUENT GUILTY PLEAS PURSUANT TO THE DECEMBER 2, 2004 COMBINED PLEA AGREEMENT APPLICABLE TO ATLANTIC COUNTY INDICTMENTS 03-05-0997C AND 03-06-1048C SHOULD BE VACATED.

POINT III

APART FROM WHETHER THE DENIAL OF HIS OCTOBER 6, 2004 MOTION TO SUPPRESS EVIDENCE IS REVESED, WILLIAMS' SENTENCES UNDER THE COMBINED PLEA AGREEMENT SHOULD BE REVERSED AS EXCESSIVE.

Defendant also filed a supplemental pro se brief

contending:

POINT I

THAT OFFICERS' ILLEGAL ENTRY INTO DWELLING WITHOUT SEARCH WARRANT VIOLATES DEFENDANT'S RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURES, THEREFORE ITEMS SHOULD BE SUPPRESSED.

POINT II

SEARCH WARRANT INVALID DUE TO VIOLATION OF DUE PROCESS PROCEDURE AS MANDATED BY LAW AND U.S. CONSTITUTIONAL AMEND. 4 AND RULES OF N.J. COURTS R. 3:5-3.

POINT III

DISCREPANCIES OF SUPPLEMENTAL INVESTIGATION REPORT AND SEARCH WARRANT INVENTORY FORM.

We reject these contentions and affirm.

The following recitation of the facts constitutes our understanding of the proofs presented by the State at a hearing on the motion to suppress. At approximately 4:08 p.m. on February 23, 2003, Patricia Pusey, a resident of the Spartan Harbor Apartments in Brigantine, reported hearing a shot coming from apartment K-2, which is located directly above hers. Later, she discovered a hole in her bathroom ceiling and that her toilet was broken.

Brigantine Officer Sean O'Neil responded to the scene. Pusey told him that a woman and a child lived in apartment K-2 and that earlier there were men in that apartment. She heard voices in the stairwell, but did not know whether they were going to or coming from the apartment. O'Neil went into Pusey's bathroom, saw the broken toilet bowl and found a bullet on the floor.

O'Neil knocked on the door of apartment K-2. He received no response and reported this to his supervisors. Then, Brigantine Police Captain John Frugoli responded to the scene. He arrived simultaneously with the Spartan Harbor Apartments' Property Manager. The property manager indicated that apartment K-2 was occupied by Rashanah Waddell and her child. Frugoli requested that the Special Response Team appear at the scene.

Brigantine Chief Arthur Gordy also went to the scene and gave the order to the Special Response Team to enter apartment K-2. Brigantine Police Lieutenant John Stone assembled the Special Response Team. He obtained a key for apartment K-2 from the Property Manger. The key did not open the door. Therefore, the Special Response Team forced their way into apartment K-2 at approximately 5:15 p.m.

One team member found a handgun in a living room closet, which was closed but unlocked. Other team members saw drug paraphernalia in plain view on a kitchen countertop. The officers saw a hole in the bathroom floor that they identified as a bullet hole. Upon consultation with the Atlantic County Prosecutor's Office, the police officers left apartment K-2 as they found it. No contraband was seized at that time. Captain Frugoli applied for a search warrant. The Special Response Team waited in the apartment complex in case the residents of apartment K-2 returned. Later that evening, Frugoli executed the search warrant and discovered the following: eleven ounces of cocaine, twenty ounces of crack cocaine, over $24,000 in cash, a scale, baggies and a handgun.

Thereafter, the Grand Jury returned an indictment against defendant, Rashanah Waddell and a third person, charging them with possession of cocaine with intent to distribute and related charges. The record presented to us, namely the transcript of the suppression hearing and the entry of the guilty plea, does not shed light as to defendant's connection to apartment K-2 or the contraband seized therein. However, he gave a factual basis for being in possession of more than five ounces of cocaine on February 23, 2003. He also admitted that on March 13, 2003, he was operating a vehicle, which the police were trying to stop. Instead of stopping, he tried to elude the police by driving away at a high rate of speed. When he was stopped, he had in his possession a .9 millimeter handgun for which he did not have a permit.

The principal contentions on appeal challenge the denial of the motion to suppress. We disagree with these challenges. The motion judge found that the State had satisfied the criteria for an emergency search. We concur.

We note that there was no warrantless seizure of contraband in this case. All the evidence was seized after a warrant had been issued. We are aware that the warrant was based, in part, on the officer's plain view observation made during a warrantless entry into apartment K-2. However, the State justified this entry as coming within the "emergency aid" exception to the warrant requirement.

Pursuant to the "emergency aid" exception, the right of the police to enter someone's home "is separate and apart from the question of whether there is probable criminal activity within the premises." State v. Frankel, 341 N.J. Super. 594, 601 (App. Div. 2001), aff'd, 179 N.J. 586 (2004), cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004). In Frankel, we held that "[w]here there is a reasonable belief that someone is in need of immediate aid, the police may enter premises and investigate without a warrant to the extent necessary to quell that fear, in light of the nature of the perceived emergency." Ibid. We adopted the following three-pronged test:

(1) there must be a reasonable and objective basis to believe that an emergency exists;

(2) the resulting search must not be motivated by a desire to find evidence of a crime; and

(3) there must be a nexus between the search and the emergency.

[Ibid.]

If this test is satisfied, then "[a]ny contraband or evidence of a crime observed in plain view may be seized without regard to probable cause." Ibid.

Here, we agree with the motion judge that the warrantless entry into apartment K-2 was justified pursuant to the emergency aid exception to the warrant requirement. The officers responded to a report of a fired weapon, which was confirmed by the observation that a weapon was fired from apartment K-2 and that a bullet went into the apartment below. They then learned that the apartment was occupied by a woman and an infant. Their knock at the apartment's door went unanswered. In those circumstances the officers were justified in entering apartment K-2 by force in order to look for the gunman or possible victims. The officers could search any area of the apartment, including a closet where the gunman, a victim or both could be found.

Defendant also challenges his sentences as excessive. We disagree. Defendant was twenty five years old at the time of sentencing. He had a history of one indictable and two disorderly persons convictions.

In fashioning appropriate sentences, the judge found that the following three aggravating factors as enumerated in N.J.S.A. 2C:44-1a applied: (3) the risk that defendant will commit another offense; (6) the extent and seriousness of defendant's prior criminal convictions; and (9) the need for specific and general deterrence from law. The judge found none of the mitigating factors listed in N.J.S.A. 2C:44-1b to exist and determined that the aggravating factors substantially outweighed the absence of any mitigating factors.

From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

We also conclude that the sentences comply with the mandates of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); State v. Abdullah, 184 N.J. 497 (2005); and State v. Natale, 184 N.J. 458 (2005) (Natale II). The constitutional problem recognized by the Supreme Court in Blakely and other recent cases was that sentencing judges, in the exercise of their traditional role, were utilizing their own findings of fact to increase terms of imprisonment beyond that which jury verdicts would allow. Natale II, supra, 184 N.J. at 480-82. Prior to Natale II, in order to stay within the boundaries of Blakely, a judge could only increase the sentence above the presumptive term by utilizing aggravating factors that were either based upon proof of a prior conviction, Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000); Abdullah, supra, 184 N.J. at 506, n.2, or were otherwise admitted by defendant. With Natale II's judicial removal of the presumptive terms from the Code, the "'statutory maximum' authorized by the jury verdict . . . is the top of the sentencing range for the crime charged, e.g., ten years for a second-degree offense, N.J.S.A. 2C:43-6(a)(2)." Natale II, supra, 184 N.J. at 487.

Here, the sentencing judge found aggravating factors (3) (6) and (9), which raise no Blakely concern because they are linked to defendant's prior convictions and preventing recidivism. Therefore, the convictions and sentences are affirmed.

The remaining contentions raised by defendant and his counsel are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-2180-04T4

June 19, 2006