STATE OF NEW JERSEY v. NORHAN FOSTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2864-03T42864-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NORHAN FOSTER,

Defendant-Appellant.

 

Argued December 20, 2005 - Decided August 1, 2006

Before Judges Lefelt, Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-06-0771.

Alison Perrone argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Perrone, Designated Counsel, and on the brief).

Linda K. Danielson argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Ms. Danielson, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Norhan Foster was found guilty of two counts of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); two counts of third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); two counts of third-degree possession of a controlled dangerous substance with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon while committing a drug offense, N.J.S.A. 2C:39-4.1; fourth- degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3j; and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7. The jury acquitted defendant of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.

The trial judge sentenced defendant to a five-year term with a three-year parole disqualifier on each of the school zone counts, to be served concurrently and into which the other counts for possession and possession with intent merged. He then sentenced defendant to a consecutive term of eight and one-half years, with a five-year parole disqualifier for the certain persons count and to concurrent terms of eight years for possession of a weapon while committing a drug offense, five years for unlawful possession of a weapon, and one and one-half years for possession of a large capacity ammunition magazine.

On appeal, defendant challenges the trial judge's denial of his pre-trial motion to suppress, refusal to declare a mistrial, rejection of defendant's attorney's adjournment application and the sentence imposed. With the exception of the last of these points, we find no merit in these contentions. We affirm the conviction, but we remand for reconsideration of the sentence.

The first issue that defendant raises on appeal is the following:

POINT ONE

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE INFORMANT'S TIP WAS NOT SUFFICIENT TO PROVIDE PROBABLE CAUSE.

The following facts are derived from the record of the proceedings in connection with the motion to suppress. Early in January 2002, Paterson Detective Washington Griffin received an anonymous tip by telephone. The caller, a female, told Griffin that she had seen a man known by the name of "Birdie" selling drugs in the vicinity of Williams Street and Twelfth Avenue. She also told Griffin that Birdie used a gray Cougar for this purpose. In addition, according to Griffin, the anonymous caller gave him a physical description of Birdie, although by the time of the hearing on the suppression motion, Griffin no longer had his notes of the conversation and could not recall the specifics of that information.

After receiving the telephone tip, Griffin conducted an investigation and saw the Cougar at the location he had been given. He followed up and learned that it was registered to a woman named Nia Barner who lived on Twenty-fourth Street. Griffin also saw a man matching the description he had been given near the vehicle and coming and going from the residence on Twenty-fourth street. Griffin did not observe the man engaging in any hand-to-hand transactions.

On January 22, 2002, Griffin was with another detective, Anthony Hyatt, when a confidential source, who was known to Hyatt but unknown to Griffin, told them that there was a "black male, [whose] street name was Birdie, that was selling CDS from his car in the area of Williams Street and Twelfth Avenue." Griffin heard the confidential informant tell Hyatt that Birdie lived on Twenty-fourth Street, that he used a gray Cougar for the drug sales and that "he carried a - a silver colored handgun with a black handle on it, with a black grip."

Based on that information, Griffin and two or three back-up units of police personnel set up surveillance near the Twenty-fourth Street location. When they arrived, the gray Cougar was parked outside and it was determined to be within 1,000 feet of a school. Approximately twenty minutes later, Griffin saw the man, whom he had previously identified as Birdie based on the anonymous tip, and a woman come out of the residence and walk toward the Cougar. He saw the woman, whom he identified as Nia Barner, get into the driver's seat. The man, who was later identified as defendant, got into the front passenger seat. As soon as Barner started the car, the back-up units pulled up and blocked her way. Detective Griffin, who was in uniform, ran toward the passenger side of the car. He saw defendant look at him and at the other approaching officers. He then saw defendant lean forward in his seat as though he were either hiding something or retrieving something from beneath it. Griffin drew his gun, asked defendant to show his hands and opened the car door. As soon as defendant had been pulled from the seat, another officer retrieved two bags of marijuana and a handgun from under it.

Nia Barner testified at the hearing on the suppression motion that the gray Cougar was registered in her name and that defendant resided with her in the Twenty-fourth Street residence. According to Barner, on January 22, 2002, she and defendant came out of the residence and got into the car. She was in the driver's seat and defendant was in the passenger's seat of the car. Barner was preparing to pull away from the curb when a police car cut off her route and police approached with their guns drawn. Although she was watching the officers as they approached, she testified that she saw defendant "bend down" in his seat.

The judge found that Detective Griffin's testimony was credible and he denied the motion to suppress for reasons he explained on the record. We defer to the motion judge's credibility finding, which is based on sufficient credible evidence in the record. See State v. Locurto, 157 N.J. 463, 472 (1999); State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993).

On appeal, defendant challenges the denial of the motion to suppress by arguing that the information available to Griffin was insufficient to provide him with probable cause to seize defendant's person or to conduct a search. He therefore attacks the information supplied by the tipster and the informant as deficient both as to reliability and basis. See State v. Smith, 155 N.J. 83, 93, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 42 L. Ed. 2d 480 (1998). The State asserts that defendant's focus on probable cause is mistaken and that the correct analysis of the facts requires us to test the information that Griffin had in light of the lesser standard that applies to an investigatory stop. Our review of the record in light of more recent guidance from our Supreme Court persuades us that defendant's focus is indeed misplaced.

This record begins with an anonymous tipster who provided information about defendant, his appearance, his whereabouts, his vehicle, and his criminal activities. It continues with surveillance and an investigation that revealed the address on Twenty-fourth Street and that confirmed all of the information save for observation of a drug transaction. It then continues further with a different informant, this one known to another officer, who provided the same information and advised the officers that defendant carried a specifically described handgun. With this further confirmation of the original tip, the officers went to the residence to conduct surveillance and an investigatory stop. They then blocked the car from leaving as soon as defendant got in.

As our Supreme Court has recently made plain, the appropriate analysis of this information is whether, under the totality of the circumstances, the officers had sufficient information to justify an investigatory stop. See State v. Birkenmeier, 185 N.J. 552, 561-62 (2006). Our Court has held:

[T]he United States Supreme Court has described the reasonable-suspicion standard as requiring 'some minimal level of objective justification for making the stop.' United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989)(internal citation and quotation marks omitted). Its application is highly fact sensitive and, therefore, not 'readily, or even usefully, reduced to a neat set of legal rules.' Ibid. (internal citation and quotation marks omitted). Facts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate, so long as the officer maintains an objectively reasonable belief that the collective circumstances are consistent with criminal conduct.

[State v. Nishina, 175 N.J. 502, 511 (2003)(final citations omitted).]

As the Court has also held, the "[r]easonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." State v. Stovall, 170 N.J. 346, 356 (2002).

In addressing the sufficiency of anonymous tips for probable cause purposes, our Supreme Court has found that an anonymous tip which is corroborated only in its benign elements would fall short. See State v. Rodriguez, 172 N.J. 117, 129-32 (2002)(discussing Florida v. J.L., 529 U.S. 266, 271-72, 120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254, 260-61 (2000)). However, the Court has concluded that such information, while insufficient to support a finding of probable cause, would permit an investigatory stop. See State v. Zutic, 155 N.J. 103, 113 (1998). In particular, the Court held that a record that demonstrated

the absence of informant veracity; the absence of a reliable basis of knowledge, either directly disclosed in the tip itself or indirectly disclosed by the presentation of extensive details or unusual predictive events; the absence of corroboration that could serve to bolster or reinforce the likely existence of criminal activity; and the absence of any independent investigation of facts indicating probable criminal activity, [while insufficient for probable cause,] . . . generated only reasonable articulable suspicion to justify an investigative stop.

[Ibid. (citing Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 2417, 110 L. Ed. 2d 301 (1990)).]

Here, it is significant that the information supplied by the anonymous tipster was both corroborated and amplified by the confidential informant. Although the information Griffin had received and had uncovered in his investigation was not sufficient to provide him with probable cause, it was enough to permit the stop. Viewed in the totality of the circumstances, it provided Griffin with "some minimal level of objective justification for making the stop." Nishina, supra, 175 N.J. at 511 (citation omitted).

Indeed, it was only because defendant leaned down as the officers approached, as if reaching under the seat either to retrieve the weapon or to hide contraband, that the encounter escalated into more than an investigatory stop. Certainly, that action by defendant provided the officers with sufficient probable cause to order him out of the car and to look beneath the seat where he had been reaching. See State v. Guerrero, 232 N.J. Super. 507, 511-12 (App. Div. 1989); State v. Kennedy, 134 N.J. Super. 454, 458-59 (App. Div. 1975). Under these circumstances, we conclude that the information sufficed to permit the initial stop and that defendant's behavior as the officers approached, in light of the confidential informant's warning that he was carrying the specifically described handgun, provided them with probable cause to conduct the search. Analyzed in terms of the escalating nature of the encounter, we find defendant's challenge to the search on appeal to be unpersuasive.

Defendant's second argument on appeal is as follows:

POINT TWO

AFTER IT WAS REVEALED THAT THE CO-DEFENDANT MAY HAVE DISCUSSED HER PLEA BARGAIN WITH A MEMBER OF THE JURY PANEL, THE TRIAL COURT ERRED IN NOT DECLARING A MISTRIAL OR IN NOT AT LEAST CONDUCTING A VOIR DIRE OF THE JURORS.

The facts that relate to this contention are as follows. The jury was selected and sworn on July 15, 2003. For reasons unrelated to the issues on appeal, testimony in the trial did not begin the next day, although other proceedings took place. On July 17, 2003, before opening arguments, counsel for defendant moved for a mistrial. He based his request on the fact that Nia Barner, who had been arrested and charged along with defendant, who had entered a guilty plea to certain offenses in the interim, and who was expected to testify during defendant's trial, had spoken with a member of the jury pool prior to jury selection. Barner was questioned under oath and testified that she had only talked about her children and children in general. Counsel contended that, although the person to whom Barner had spoken had neither been questioned as a potential juror nor impaneled, a mistrial was appropriate because Barner had actually discussed her plea bargain with the possible juror. Defendant's counsel asked the judge, in the alternative, to conduct an individual voir dire of the jurors to ascertain whether any of them overheard Barner or had been approached by her.

The judge denied the motion for a mistrial and the application for an individualized voir dire of the jury. Instead, he gave the jury a preliminary charge in which he told them to advise him if anyone approached them about the trial. Continuing, he then inquired of the jury as a group as follows:

Is there anyone in the jury box now who has had any contact with anyone from the case? Anybody approach you about the case? Has any other juror said anything to you about the case or about them being approached or anything like that?

All right. The record should reflect that no juror has made an indication in response to that.

On appeal, defendant argues that the judge's response

was inadequate to protect his rights. We disagree. There

is no doubt that a fair trial requires an impartial jury "neither tainted by prejudice nor exposed to extraneous influences . . . ." See State v. Hightower, 146 N.J. 239, 263 (1996)(citing State v. Bey, 112 N.J. 45, 75 (1988)). Nor is there any doubt that the judge is required to protect the jury from outside influences that might interfere with the jury's functioning. Ibid.

The evidence in this record, however, did not, in our view, mandate that a mistrial be declared. As our Supreme Court has held, such a motion, based on an allegation of jury taint, is:

addressed to the sound discretion of the court; and the denial of the motion is reviewable only for an abuse of discretion. The power is to be exercised with the greatest caution, in the furtherance of justice between the accused and the State
. . . . Unless the vice is plainly ineradicable by an instruction to the jury, a mistrial is not allowable of right.

[State v. Witte, 13 N.J. 598, 611 (1953) (quoted in State v. Winter, 96 N.J. 640, 647 (1984)).]

We find no abuse of discretion in this record. The information concerning Barner's comments to an individual who never became a part of the jury panel did not require that the judge declare a mistrial. Under the circumstances, the judge's several questions to the jury as a group were sufficient to uncover any possible taint and to preserve defendant's right to a fair and impartial jury.

Defendant's next argument on appeal is as follows:

POINT THREE

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT FORCED DEFENSE COUNSEL TO PROCEED TO TRIAL WITH NO PRIOR NOTICE.

Our review of the record demonstrates that this contention is meritless. R. 2:11-3(e)(2). Defendant's counsel was not forced to proceed without notice. The case had been called for trial in June 2003 at which time counsel was ready to proceed. In the interim Barner had entered her guilty plea and had agreed to testify at defendant's trial. Indeed, she had testified during the suppression hearing on July 15, 2003.

Counsel sought the adjournment on the ground that he would not be able to effectively cross-examine Barner during the trial because he did not have the transcript of her guilty plea. After denying the adjournment application, the judge arranged for counsel to have the tape of Barner's plea proceedings. As the trial transcript makes plain, defendant's counsel effectively and thoroughly cross-examined Barner. We perceive no basis on which to conclude that defendant's rights were prejudiced in any way as a result of the denial of this application.

Finally, defendant raises the following arguments concerning his sentence:

POINT FOUR

IMPOSITION OF CONSECUTIVE PRISON TERMS ABOVE THE PRESUMPTIVE VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below).

POINT FIVE

THE IMPOSITION OF CONSECUTIVE SENTENCES IN THIS CASE IS CONTRARY TO THE PRINCIPLES OF STATE v. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).

POINT SIX

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO THIRTEEN AND A HALF YEARS WITH EIGHT YEARS OF PAROLE INELIGIBILITY BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

We need not repeat the specifics of the sentence imposed on defendant for these crimes. We first note that our Supreme Court has recently addressed the implications of the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), at length. See State v. Natale, 184 N.J. 458 (2005); State v. Abdullah, 184 N.J. 497 (2005); State v. Franklin, 184 N.J. 516 (2005). Applying the reasoning of those decisions to the record on appeal, we conclude that a remand of this matter for review of the sentence is mandated.

Consideration of the so-called recidivism factors is appropriate when imposing a sentence under Natale, supra, 184 N.J. at 458, but the Natale Court has mandated that "affected cases" receive new sentencing hearings to "determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96. Because the sentencing judge in this case imposed sentences above the presumptive term on each count, a remand for review of the sentence pursuant to Natale is mandated.

In reconsidering the sentence on remand, we note that the imposition of a period of parole ineligibility is generally permitted. See Abdullah, supra, 184 N.J. at 508-13. Moreover, in this case, the parole disqualifiers for both third-degree possession of a controlled dangerous substance with the intent to distribute within 1,000 feet of a school, see N.J.S.A. 2C:35-7; and second-degree possession of a weapon by a convicted felon, see N.J.S.A. 2C:39-7, are separately authorized by the applicable statutes.

In addition, the imposition of consecutive sentences is generally permissible, see Abdullah, supra, 184 N.J. at 514-15, if the sentencing judge otherwise complies with the dictates of State v. Yarbough, 100 N.J. 627, 643 (1985), or if it is otherwise based on a statutory mandate. Here, a consecutive sentence is required by statute for the second-degree count for possession of a weapon while committing a CDS offense. See N.J.S.A. 2C:39-4.1d. However, because the judge did not articulate his findings on the Yarbough factors when he imposed this sentence, we remand for reconsideration of the decision to impose consecutive terms on the counts for third-degree unlawful possession of a weapon, fourth-degree possession of a large capacity ammunition magazine, and second-degree possession of a weapon by a convicted felon.

This matter is remanded only for reconsideration of the sentence consistent with this opinion. In all other respects, the conviction is affirmed.

 

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A-2864-03T4

August 1, 2006