STATE OF NEW JERSEY v. ERIC CALDWELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0518-05T40518-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC CALDWELL,

Defendant-Appellant.

________________________________

 

Submitted September 10, 2007 - Decided September 25, 2007

Before Judges Weissbard and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, 01-08-0898-I.

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

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Eric Caldwell appeals from his conviction following a guilty plea to all Counts of an indictment charging the following offenses: possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Counts One and Five); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3) (Counts Two and Six); possession of CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (Counts Three and Seven); and possession of CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (Counts Four and Eight). In addition, defendant pled guilty to a disorderly persons offense of possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10.

On July 22, 2005, the judge merged Counts One and Two into count Three, and Counts Five and Six into count Seven. On Counts Three and Seven, the judge imposed concurrent extended term sentences of seven years with three-and-a-half years of parole ineligibility. A concurrent six month term was imposed on the disorderly persons offense. Counts Four and Eight, which the State had not intended to move for trial, were dismissed.

Defendant's guilty plea followed the denial of his motion to suppress evidence. Following a two-day suppression hearing, Judge Guzman made the following factual findings:

On July the 7th, 2001 Paterson police, Detective Sergeant Trommelen set up surveillance at 113 East Holsman Street in the City of Paterson[.] . . . [H]e arrived at the scene at approximately 12:40 p.m. Sergeant Trommelen is an experienced police officer with over 20 years of experience, 15 and a half years working in the Narcotics Division of the City of Paterson. He has taken courses in drug enforcement and . . . has been involved in over 6,000 investigations and over 1500 arrests.

. . . [A]s per the testimony . . . of Sergeant Trommelen, the area of 113 East Holsman Street in Paterson is a high drug trafficking area. On this particular day after setting up surveillance he observed what appeared to be a hand-to-hand drug transaction involving the defendant, Eric Caldwell, and a female, a white female.

Detective Sergeant Trommelen was assisted by back-up units of Officer Magda (phonetic), Detective Magda, Detective Leberza, Detective Bailey and Detective Sykes. Detective Magda and Leberza were together and Detective Bailey and Sykes were together in separate vehicles, unmarked police vehicles. Detective Bailey was the driver and Detective Sykes was a passenger. . . . Sergeant Trommelen . . . was undercover and in an SUV vehicle. The vehicle had tinted windows except that the front windshield was untinted. He had to use binoculars. He testified again that the weather . . . was good and then that's when he observed . . . what appeared to be a drug transaction. He observed the defendant was wearing bright . . . beige shorts and a white T-shirt engaged in a conversation with a female and saw paper currency . . . exchanged from the female to Mr. Caldwell and Mr. Caldwell gave the female a bright-colored object. The item was retrieved from the defendant's pocket and handed to the buyer. Again, he believed there was a . . . he observed a hand-to-hand narcotics transaction.

Detective Trommelen radioed in the identification of . . . Mr. Caldwell and also the . . . information as to the female. The female was lost in the neighborhood but the defendant was arrested.

Prior to being arrested . . . Sergeant Sykes testified that he approached the defendant. . . . [D]efendant's right hand went to the side and [Sergeant Sykes] saw something fall. . . . [Sergeant Sykes] saw a plastic bag next to him. Again, Detective Sykes testified that and the Court does find that the description was given of the defendant again as wearing beige shorts and white T-shirt. He doesn't recall . . . if the buyer was white and what she was wearing, but he said that he and Detective Bailey were concentrating on the seller and his description. Confiscated . . . or rather, recovered from that plastic bag was 21 bags of crack and nine glassine . . . envelopes of heroin.

At police headquarters the defendant was searched and on his person was found a bag of marijuana. Also confiscated from the defendant was $82 in U.S. currency, two $20 bills, one $10 bill, five $5 bills and seven $1 bills. The arrest occurred at approximately 12:45 . . . in the afternoon.

The Court also has heard the testimony of Christina Butts, who was living at 113 East Holsman Street, who testified that the defendant went to visit her and her boyfriend . . . and his godson, who happens to be . . . her son, and that he . . . was there for about 25 minutes to 30 minutes and moments after he . . . left she looked out the window and the defendant was being arrested by the police.

Mr. Caldwell testified that he was in the apartment for about one half-hour to 40 minutes. . . . [S]econds after he left [he said] hello to some people that he knew, [without] stop[ing] for conversation . . . [and] was immediately arrested.

Once again, the Court finds that upon giving the description of Mr. Caldwell, Detective Trommelen . . . [and] Detective Sykes did arrest the defendant . . . [and] noticed that [] items were dropped to the ground, the items being heroin and crack cocaine.

Although the judge did not explicitly set forth his credibility determinations, it is clear from his resolution of the motion that where the testimony of defendant and his witness was inconsistent with that of the police officers, the judge credited the State's version of events, which are well supported by the record. As a result, we are bound by those findings. State v. Johnson, 42 N.J. 146, 161-62 (1964).

On appeal defendant presents the following arguments for our consideration:

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS.

A. FACTUAL INTRODUCTION.

B. SINCE NONE OF THE RECOGNIZED EXCEPTIONS TO THE SEARCH WARRANT REQUIREMENT WERE APPLICABLE TO THE FACTUAL CIRCUMSTANCES OF THE PRESENT CASE, THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS.

POINT II: THE DEFENDANT IS ENTITLED TO A REMAND FOR A DETERMINATION AS TO THE REASONS FOR THE STATE'S DECISION TO SEEK AN EXTENDED TERM AND WHETHER SUCH A DECISION WAS ARBITRARY AND CAPRICIOUS. (NOT RAISED BELOW)

POINT III: THE TRIAL COURT COULD NOT PROPERLY HAVE IMPOSED AN EXTENDED TERM ON COUNT VII AS WELL AS ON COUNT III. (NOT RAISED BELOW)

POINT IV: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

I

We find no merit to defendant's suppression argument. His contention that there was no probable cause to arrest him is entirely misplaced. Rather, we agree with the State that not only was defendant never arrested but he was not even "seized" so as to implicate the State and federal constitutional guarantees against unlawful search and seizure. U.S. Const. amend. IV; N.J. Const. art. I par. 7.

A seizure for constitutional purposes takes place when "a reasonable person would have believed that he was not free to leave." State v. Tucker, 136 N.J. 158, 164 (1994) (quoting United States v. Mendenhall, 446, U.S. 544, 553-54, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980). In Tucker, the Court adhered to its earlier adoption of the Mendenhall test in State v. Davis, 104 N.J. 490, 498 (1986). Tucker, supra 136 N.J. at 165. See also State v. Hughes, 296 N.J. Super. 291, 295-97 (App. Div.), certif. denied, 149 N.J. 410 (1997). Applying that test here, defendant was not seized at the time he discarded the narcotics. The detectives approached in an unmarked car at a normal rate of speed. They exited the car and approached defendant, who was standing near several individuals playing cards. They did not chase defendant and did not even speak to him before he dropped the plastic bag. The fact that they may have intended to arrest him is not dispositive. It is their objective actions that must be evaluated. State v. Bruzzese, 94 N.J. 210, 219-220 (1983). The fact that defendant may have acted as he did because he saw the police approaching does not translate into a seizure. Defendant voluntarily dropped the bag, thereby abandoning it. State v. Gibson, 318 N.J. Super. 1, 11, (App. Div. 1999); State v. Farinich, 179 N.J. Super. 1, 6 (App. Div.) aff'd o.b. 89 N.J. 378 (1982). Once dropped the detectives were free to examine the bag since it was in plain view.

Even if we agreed that a seizure took place, we reject defendant's argument that probable cause is the proper test to apply in these circumstances. The police had a reasonable and articulable suspicion that a drug transaction had just taken place and were therefore authorized to conduct an investigative stop. State v. Ramos, 282 N.J. Super. 19, 21-23 (App. Div. 1995). Indeed, the State's position that probable cause existed has considerable merit, See State v. Moore, 181 N.J. 40, 46-47 (2004), but need not be resolved.

There having been no search, the motion to suppress was properly denied.

II

We reject defendant's claim that the State failed to explain its reason for seeking an extended term, as required by State v. Lagares, 127 N.J. 20, 32 (1992). The prosecutor made clear, at the time of defendant's plea and again at sentencing, that the extended term was justified by defendant's multiple prior drug distribution convictions, as well as a prior robbery conviction. Defendant never suggested that an extended term was unwarranted and failed to advance reasons that would have supported a waiver under the guidelines adopted by the Attorney General in the wake of Lagares. See State v. Kirk, 145 N.J. 159, 168-70 (1996). Defendant's convictions were not, as he now suggests, so remote as to require a waiver under the guidelines. Given the intervening time defendant spent in prison, his drug activities reveal continuity over the decade preceding the instant offense. We discern no abuse of discretion by the prosecutor.

III

Defendant's attack on his two extended terms, albeit concurrent, is unavailing. While ordinarily only one extended term may be imposed, N.J.S.A. 2C:44-5(a)(2); State v. Papasavvas, 163 N.J. 565, 627 (2000), the prohibition does not apply where, as here, one of the extended terms is mandatory. State v. Singleton, 326 N.J. Super. 351, 355 (App. Div. 1999) (citing State v. Connell, 208 N.J. Super. 688, 691-92 (App. Div. 1986)). Here, the extended term on the school zone Counts were mandatory. N.J.S.A. 2C:43-6(f); State v. Thomas, 188 N.J. 137, 149-51 (2006). We reject defendant's argument that Lagares, supra, rendered these otherwise mandatory extended terms discretionary.

IV

Finally, we reject defendant's claim that his sentence was "manifestly excessive." Contrary to defendant's argument, the judge's findings, that there were several aggravating factors and no mitigating factors, were well supported by the record. We see no need for an extended discussion of this issue. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

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A-0518-05T4

September 25, 2007