STATE OF NEW JERSEY v. P.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6254-03T46254-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

P.B.,

Defendant-Appellant.

_________________________________

 

Submitted January 23, 2006 - Decided February 15, 2006

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

02-10-1329-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy

Public Defender, of counsel and on the brief).

Nancy Kaplen, Acting Attorney General of New

Jersey, attorney for respondent (Frank Muroski,

Deputy Attorney General, of counsel and on

the brief).

PER CURIAM

Defendant, P.B., was indicted for twenty-seven crimes, including five counts of first-degree aggravated sexual assault, involving six child victims under the age of thirteen for whom he had a legal duty to care. Following denial of his motion to suppress evidence seized as a result of a search warrant, and pursuant to a negotiated agreement, defendant pled guilty to five counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count 1 involving S.P.; count 5 involving S.M.; count 9 involving B.M.; count 13 involving U.S.; and count 17 involving M.G.) and one count of second-degree sexual assault, N.J.S.A. 2C:14-2b (count 22 involving L.M.). He was sentenced on counts 1 and 5 to consecutive twenty-year terms with 85% periods of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and on counts 9, 13 and 17 to concurrent twenty-year terms also subject to NERA. On count 22, defendant was sentenced to a concurrent ten-year term with an 85% parole bar. Thus, in accordance with the plea agreement, defendant received an aggregate term of forty years with thirty-four years of parole ineligibility and ten years of parole supervision upon release as required by NERA. The sentencing judge also imposed the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -11, including community supervision and all statutorily mandated fees and penalties. Pursuant to the plea bargain, the judge dismissed the remaining twenty-one counts of the indictment. Defendant appeals, and we affirm the judgment of conviction, but remand for resentencing in light of the recent holdings in State v. Natale (Natale II), 184 N.J. 458 (2005) and State v. Abdullah, 184 N.J. 497 (2005).

The facts adduced at the suppression hearing may be briefly stated. On July 26, 2002, investigators from the Passaic County Prosecutor's Office Child Abuse And Sex Crimes Unit executed a search warrant at defendant's apartment and found ten videotapes depicting defendant committing various sex acts upon several children, including S.P., S.M., B.M., L.M. and M.G. A videotape also depicted defendant molesting another child who could not be identified.

The search warrant, issued on July 25, 2002, was based on the affidavit of Prosecutor's Investigator Emil Trione, who swore to the following facts. On July 19, 2002, nine-year old S.P. told her father's girlfriend that defendant, a friend of her father's, had been "harassing" her on visits to his apartment in Paterson. S.P. was brought to the Philadelphia Police Department where she gave a statement that same day informing that defendant "has been touching me on my butt and he has been putting his body parts on me." She was quite specific, relating that defendant "was putting his penis on my butt and tells me to pump," and then "tells me to spit on his penis and lick it." According to S.P., defendant also licks her "privates." S.P. then told the police officer that defendant videotaped her with a camcorder when he did these things to her, and that while in his home, defendant "showed me another videotape of another little girl" where defendant "was rubbing her back and butt." Defendant explained to S.P. that it was "exercise." S.P. also told the police that defendant lived on "Maryland Street" in Paterson, New Jersey in a second-floor apartment. Consequently, because the acts were committed in New Jersey, the Philadelphia police informed the Passaic County Prosecutor's Office, who interviewed S.P. on July 24, 2002.

S.P.'s statement to the prosecutor's investigators was consistent with her earlier statement to the Philadelphia police. For example, S.P. reiterated that defendant would "put his penis in my butt" and would put lotion on his leg and tell her to "pump." The Prosecutor's Office subsequently confirmed through motor vehicle and utility records that defendant lived at 136 Maryland Avenue, Apartment Two, in Paterson.

Based on his professional experience with child molesters who videotape sex acts with their victims, Investigator Trione concluded that it was likely defendant kept the videotapes in his residence for future viewing for his own sexual gratification. As a result, Trione sought a warrant to search defendant's apartment for the videotapes described by S.P. and videotaping equipment, as well as any lotions or other sexual lubricants. Based on Trione's affidavit, a Superior Court judge issued a search warrant, which, on denial of defendant's subsequent motion to suppress evidence secured as a result of its execution, another judge found was based on probable cause:

The Court is satisfied that there's probable cause sufficient in this particular case. There's no need for the investigators to corroborate it by trying to find other victims. There's no proof that this S.P. even knew who the other victims were. Some of the other victims were found through observation of the videotapes.

But I think at the time that this warrant was issued, the State acted reasonably under the circumstances based upon the testimony or the affidavit of S.P. And there's nothing in the search itself -- the warrant, itself, is specific, and the inventory is accurate. It was executed as it was supposed to be executed pursuant to Judge Sokalski's . . . warrant, and; therefore, the Court is going to deny the defense motion . . . to suppress the search warrant.

On appeal, defendant raises the following issues:

I. THE COURT LACKED PROBABLE CAUSE TO ISSUE A SEARCH WARRANT BECAUSE THE WARRANT WAS ISSUED BASED SOLELY ON THE WORD OF AN EIGHT-YEAR-OLD COMPLAINANT.

II. BECAUSE THE JUDGE MISINFORMED THE DEFENDANT AT THE PLEA HEARING ABOUT THE PAROLE CONSEQUENCES OF HIS NO EARLY RELEASE ACT SENTENCE AND ABOUT COMMUNITY SUPERVISION FOR LIFE, THE MATTER MUST BE REMANDED.

III. THE SENTENCE IS EXCESSIVE AND THE MATTER MUST BE REMANDED BECAUSE THE JUDGE FAILED TO FOLLOW YARBOUGH PRINCIPLES AND FAILED TO PROVIDE A STATEMENT OF REASONS FOR IMPOSING A CONSECUTIVE SENTENCE.

IV. THE JUDGE'S DECISION TO IMPOSE SENTENCES IN EXCESS OF THE PRESUMPTIVE TERM AND CONSECUTIVE SENTENCES VIOLATES THE PRINCIPLES OF BLAKELY V. WASHINGTON (Not Raised Below).

We address these issues in the order raised.

Defendant contends the search warrant was not supported by the requisite probable cause because it was based solely on the account of the child-victim. We are satisfied that Trione's affidavit, considering the totality of the circumstances, established probable cause to believe that evidence of defendant's sexual assaults would be found in his apartment.

A search pursuant to warrant is presumed to be valid and based on probable cause; it is a defendant's burden to prove its alleged invalidity. R. 3:5-7; State v. Valencia, 93 N.J. 126, 133 (1983). There is a strong constitutional preference for warrants. United States v. Ventresca, 380 U.S. 102, 106, 85 S. Ct. 741, 744, 13 L. Ed. 2d 684, 687 (1965); State v. Demeter, 124 N.J. 374, 381 (1991). Thus, "doubt should ordinarily be resolved by sustaining the search." State v. Kasabucki, 52 N.J. 110, 116 (1968).

"[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review." Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331, 76

L. Ed.2d 527, 547, reh'g denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983). Rather, a reviewing court substantially defers to the issuing judge's probable cause finding. Ibid.; Kasabucki, supra, 52 N.J. at 120; State v. Jones, 308 N.J. Super. 15, 30 (App. Div. 1998). Courts review the affidavit "without a grudging or negative attitude" to avoid otherwise ignoring the "evidence of the legitimacy of the officer's purpose" in seeking the warrant. Kasabucki, supra, 52 N.J. at 116-17. The warrant is thus "cloaked with an aura of prima facie legality" since courts must "give fair leeway" to these honest efforts to enforce the law. Id. at 123. In fact, "'another trial judge of equal jurisdiction should [still] regard as binding the decision of [the issuing court] that probable cause has been sufficiently shown to support a warrant, unless there was clearly no justification for that conclusion.'" Jones, supra, 308 N.J. Super. at 30 (quoting Kasabucki, supra, 52 N.J. at 117).

Probable cause exists when the facts and circumstances, considered in their totality, warrant a reasonable police officer to conclude that "there is [merely] a fair probability that . . . evidence of a crime will be found in a particular place." Gates, supra, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548; Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879, 1890-91, reh'g denied, 338 U.S. 839, 70 S. Ct. 31, 90 L. Ed. 513 (1949); State v. Johnson, 171 N.J. 192, 214-15 (2002). "'[I]t does not demand any showing that such belief be correct or more likely true than false.'" Id. at 215 (quoting State v. Bruzzese, 94 N.J. 210, 237 (2002) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 1543, 75 L. Ed. 2d 502, 514 (1983))). Probable cause is a common sense, practical and flexible standard designed for "'nonlawyers in the midst and haste of a criminal investigation.'" Gates, supra, 462 U.S. at 235, 103 S. Ct. at 2330, 76 L. Ed. 2d at 546 (quoting Ventresca, supra, 380 U.S. at 108, 85 S. Ct. at 746, 13 L. Ed. 2d at 689).

Here, Trione's affidavit recited sufficient facts giving rise to a fair probability that evidence of the reported crimes would be found in defendant's apartment. The victim herself reported the incidents of sexual abuse in such graphic detail that a nine-year old child would only know as a result of having endured or witnessed the events herself. Such accounts by children of tender years are considered "highly reliable" and generally admissible at trial under the "tender years" exception to the hearsay rule. State v. D.R., 109 N.J. 348, 360 (1988); N.J.R.E. 803(c)(27). A fortiorari, they may be relied upon in determining the existence of probable cause to issue a search warrant. Moreover, S.P. related the facts consistently to both the Philadelphia police and the County Prosecutor's office, and investigators from the latter confirmed the location of defendant's residence as reported by the child-victim. In sum, the totality of these facts and circumstances clearly support a probable cause finding.

Defendant next contends he was misinformed of the parole consequences of his guilty plea in that community supervision "for life" would be only "up to fifteen years," and that NERA parole supervision would only be five years instead of the ten years he actually received. We are satisfied that any misstatements were inconsequential and did not inform the decision to plead guilty.

At the guilty plea hearing, the judge twice clearly informed defendant that he would be sentenced to community supervision for life for "at least fifteen years." Defendant was similarly informed of this fact by the plea form, which he signed, understood, and reviewed with his attorney. To be sure, the judge later mistakenly said "up to fifteen years," however, this fleeting reference does not alter the fact that defendant was adequately informed that supervision "for life" was for at least fifteen years by both the court's overall colloquy and the plea form.

The judge also correctly informed defendant that the NERA term for aggravated sexual assault carried a five-year parole supervision period, however, because defendant was sentenced to consecutive twenty-year terms on the two first-degree offenses, he actually received a ten-year period of parole supervision. Yet the NERA period of parole is subsumed in the greater "Community Supervision for Life" period, which, as noted, is at least fifteen years. In any event, given the actual length of defendant's prison time - at least thirty-four years - and his age of 48 years, it is simply implausible to posit that defendant's decision to plead guilty was dependent on whether the NERA parole term was either five or ten years. We are satisfied that defendant was adequately and meaningfully informed of the parole consequences of his guilty plea and that the judge's misstatements were harmless and immaterial.

Finally, defendant contends that his consecutive twenty-year terms, which exceed the statutory presumptive term for a first-degree crime, are excessive and violative of his Sixth Amendment jury trial right. We agree in part.

"[I]n reviewing a [plea-]bargained sentence now claimed to be excessive, [we] should . . . recognize that the defendant has freely agreed to the imposition of such sentence as part of the plea negotiations." State v. Spinks, 66 N.J. 568, 573 (1975). Indeed, "an appellate court should ordinarily defer to the presumed reasonableness of a bargained sentence and not hold it to be excessive except in compelling circumstances." Ibid. Accord State v. Tango, 287 N.J. Super. 416, 422 (App. Div.), certif. denied, 144 N.J. 585 (1996).

However, even sentences imposed upon guilty pleas may be violative of a defendant's Sixth Amendment jury trial right and the dictates of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh'g denied, 542 U.S. 961, 125 S. Ct. 21, 159 L. Ed. 2d 851 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Natale (II), supra, 184 N.J. at 494-95 (2005). In Natale (II), supra, the Court held "that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." 184 N.J. at 466. Thus, when a defendant receives a sentence higher than the presumptive term based on judicial finding other than a prior criminal conviction, his sentence does not comply with the Sixth Amendment. Ibid. To remedy the constitutional defect in our sentencing code that permitted sentencing judges to impose a term above the presumptive based on the finding of aggravating factors other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6(a). Id. at 487.

By the same token, "there is no presumption in favor of concurrent sentences" and a criminal defendant is fully aware that he or she is at risk for an aggregate sentence covering all the offenses committed. Abdullah, supra, 184 N.J. at 513 (2005). Accordingly, "[i]mposing a consecutive sentence . . . [does] not exceed the statutory maximum for Blakely or Apprendi purposes." Id. at 514.

In this case, in imposing sentence at the highest end of the first-degree range, the trial judge found as aggravating factors, N.J.S.A. 2C:44-1(a)(1), (2), (3), (6), and (9) and no mitigating factors. Because imposition of the twenty-year terms for the first-degree aggravated sexual assaults was clearly based on factors in addition to defendant's prior criminal convictions, we are constrained, in light of Natale II, to remand for consideration of whether the judge would impose a lesser sentence in the absence of the presumptive term. See Abdullah, supra, 184 N.J. at 506. On remand, we further direct the sentencing judge to undertake the appropriate analysis and application of the Yarbough guidelines in explanation of the imposition of consecutive terms for two of defendant's five aggravated sexual assault convictions. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

We remand for resentencing in accordance with this opinion. In all other respects, the judgment of conviction is affirmed.

 

For those defendants whose cases were on direct appeal as of the date of the decision or who had raised this challenge to their sentences at trial or on direct appeal, and who had been sentenced to a term above the presumptive in violation of the Sixth Amendment, the Court ordered a new sentencing hearing. At this hearing, which will be based on the record at the prior sentencing proceeding, the defendant is entitled to have "the trial court . . . determine whether the absence of the presumptive term in the weighing process requires the imposition of a [lesser] sentence." Id. at 495-96.

(continued)

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13

A-6254-03T4

RECORD IMPOUNDED

February 15, 2006