STATE OF NEW JERSEY v. ANDRES MELENDEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2690-05T42690-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRES MELENDEZ,

Defendant-Appellant.

___________________________________

 

Submitted May 9, 2007 - Decided August 6, 2007

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-08-0556.

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

Stuart Rabner, Attorney General, attorney for respondent (Leslie-Ann Justus, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Andres Melendez appeals his conviction for two counts of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). He claims that evidence seized from his motor vehicle should have been suppressed because it was the product of an illegal stop and warrantless seizure, the court limited his ability to cross-examine the arresting officer, improperly introduced his prior convictions, and imposed a disproportionately severe sentence. We reject all of defendant's arguments and affirm his conviction and sentence.

The conviction arose out of a July 11, 2004 surveillance conducted in North Plainfield by the Somerset County Prosecutor's Office Organized Crime and Narcotics Task Force, along with the North Plainfield Police Department. The evidence presented at the suppression hearing, if credited, revealed that Sergeant Francisco Roman (Roman), a veteran of law enforcement at that time for five years, with training and experience in narcotics investigations, was stationed in an unmarked car near the corner of Duer and Craig Streets. The area was known for foot traffic and narcotics activities. Around 11:45 p.m. that evening, Roman observed a burgundy Grand Prix approach the area. A man, later identified as defendant, exited the driver's seat of the vehicle and walked in front of the car. The car remained running and the headlights remained illuminated. Roman observed defendant quickly approach an unidentified male, and based upon his training and experience, Roman at that point believed that he was witnessing a "hand-to-hand narcotic transaction."

Defendant re-entered the vehicle and proceeded to drive up Duer Street, which eventually became Madison, and then made a right turn onto West Front Street, "basically . . . [circling] the block." As the vehicle approached a Sunoco gas station, Roman activated the lights on his unmarked vehicle as defendant's vehicle was coming out of Somerset Street near the gas station. The vehicle entered the gas station but did not stop. The vehicle traveled around a gas pump. Roman observed defendant throw an item over his right shoulder towards the back seat. Other officers, who Roman had radioed, arrived and defendant then stopped his vehicle.

Roman exited his vehicle and approached defendant's car. As he did so, he noticed defendant was making "furtive" movements with his hands toward the center console. At that point, Roman told defendant to turn off the car and step out of the vehicle. Once out of the vehicle, Roman advised defendant that he had been stopped as part of a narcotics investigation. Defendant immediately volunteered to Roman that "[he] did not buy any drugs." Roman then told the front passenger to exit the vehicle and the rear passenger to keep her hands where they could be seen.

At that point, Roman leaned into the vehicle with a flashlight and illuminated the console where defendant had been reaching. Roman immediately observed a small glassine wax fold, which he knew was common packaging for heroin. Roman then placed defendant under arrest for possession of CDS. Roman made defendant place his hands on the back of the car and attempted to remove the suspected heroin. It was then that some of the suspected heroin fell out onto the floor and Roman noticed that "Anaconda," a popular brand name for heroine, was stamped on the fold.

While the backseat passenger remained seated, Roman then used his flashlight to illuminate the rear compartment of the car, where he had observed defendant throwing an object. Roman observed a Newport cigarette box on the floor behind the driver's seat. He then opened it and found two baggies which he suspected, based on his training and experience, contained cocaine. Defendant was arrested. Roman then learned from backup that the two passengers had warrants out for their arrest and they were also were arrested. At the time of her arrest, the backseat passenger had a crack pipe on her person. The suspected drugs were later tested and proved to be heroin and cocaine, respectively.

On August 5, 2004, a Somerset County grand jury indicted defendant with two counts of third-degree possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10(a)(1). The two passengers were not charged.

Prior to trial, defendant moved to suppress the cocaine and heroin found in his car as the fruits of an illegal search. The motion judge, in denying the motion, found,

Here the presence in an area which is frequented [by] drug users, the lateness of the hour is not in itself evidence of criminal activity. Here the Court does find the detective had a reasonable, articulable suspicion to pull over the defendant. He's there on a covert surveillance, he's an experienced narcotic detective, he observed activity that appears to be a hand-to-hand drug exchange in a high narcotic area and observes the defendant drive away immediately thereafter, follows the vehicle, attempts to have the vehicle stopped so he can do a further investigation, notices the vehicle does not stop immediately, instead they are circling the gas station. Observes further furtive activity by the defendant, observes the defendant turn and toss what turns out to be a cigarette box into the back seat. Observes the defendant as he approaches the vehicle with police starting to surround the vehicle at this point, the defendant is not turning towards the officer who is approaching the car and calling out but rather turns towards the console. Officer's concerned for a weapon. Asks the defendant to step from the vehicle. The defendant makes certain statements with regard to drug activity. And the officer using his flashlight looks into the gear shift area and observes what appears to be a heroin fold. And at that point does not retrieve the heroin fold but instead tells the defendant he is under arrest for drug activity.

I find that there is probable cause for the officer's objective reasonable basis and probable cause for the officer to do what he did on that particular night given the totality of the circumstances, his background, his training, his experience.

And so the motion to suppress has to be denied[.]

Defendant also sought to preclude the state from introducing evidence of five prior convictions from 1977, 1980, 1984, 1993, and 1998 on grounds of remoteness and, separately as to the 1977 conviction, that defendant was uncounseled. The court ruled that only the four most recent convictions would be admitted.

The jury found defendant guilty of both charges. Defendant was sentenced to three years imprisonment. Appropriate fines and penalties were imposed.

On appeal, defendant raises the following points for consideration:

POINT I

THE TRIAL COURT ERRED BY DENYING THE MOTION TO SUPPRESS THE EVIDENCE FOUND IN THE VEHICLE AFTER AN ILLEGAL SEARCH AND SEIZURE.

POINT II

THE TRIAL COURT ERRED BY LIMITING DEFENSE COUNSEL'S EXAMINATION OF OFFICER ROMAN AND THIS ERROR DEPRIVED DEFENDANT OF A FAIR AND IMPARTIAL TRIAL.

POINT III

THE TRIAL JUDGE ERRED BY ADMITTING DEFENDANT'S PRIOR CONVICTIONS SINCE THEY WERE REMOTE AND THE RELEVANCE WAS FAR OUTWEIGHED BY PREJUDICE.

POINT IV

THE SENTENCE IMPOSED BELOW WAS MANIFESTLY EXCESSIVE.

I.

Defendant contends the officer was without probable cause to stop his vehicle. See State v. Pineiro, 181 N.J. 13 (2004). In addition, defendant contends that once Roman stopped his vehicle, the evidence seized was not in plain view. Therefore, the plain view exception to the warrant requirement did not apply.

The Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution protect the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV, 1; N.J. Const. art. I, 7. This includes a prohibition against an investigatory vehicle detention "except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law. . . ." State v. Zapata, 297 N.J. Super. 160, 171 (App. Div. 1997) (quoting Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979), certif. denied, 156 N.J. 405 (1998).

Reasonable suspicion has been described as "considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989). "Reasonable suspicion is a less demanding standard than probable cause not only in the sense that [it] can be established with information that is different in quality or content . . . but also in the sense that [it] can arise from information that is less reliable. . . ." Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990). Like probable cause, there are no set rules for what constitutes reasonable suspicion; rather, courts evaluate the "totality of the circumstances" in making that determination. Sokolow, supra, 490 U.S. at 8, 109 S. Ct. at 1585, 104 L. Ed. 2d at 10.

Here, based upon the officer's training and experience, defendant's actions when he exited his vehicle and approached the unidentified male, as well as his actions when he returned to his vehicle, drove away and commenced circling the block, demonstrated a reasonable and articulable suspicion that defendant was engaged in criminal activity. See State v. Arthur, 149 N.J. 1, 11-12 (1997). Under the totality of circumstances, Roman's suspicion that he had observed an illegal drug transaction was objectively reasonable and justified the stop. Ibid.; See State v. Alexander, 191 N.J. Super. 573, 575-77 (App. Div. 1983), certif. denied, 96 N.J. 267 (1984).

Although the stop of defendant's vehicle was constitutionally permissible, the warrantless search of his vehicle thereafter is deemed presumptively invalid unless the search falls within one of the exceptions to the warrant requirement. State v. Cooke, 163 N.J. 657 (2000). One such exception is the so-called "automobile exception." Id. at 664.

"Generally, the automobile exception permits warrantless searches of readily moveable vehicles if law enforcement officers have probable cause to believe the vehicle contains evidence of a crime." Ibid. This exception is based on the understanding that the general mobility of automobiles makes it more likely that evidence contained therein can be taken away. See State v. Alston, 88 N.J. 211, 231 (1981) (noting the "primary rationale for [the] exception lies in the exigent circumstances created by the inherent mobility of vehicles").

In Cooke, supra, the Court held that under the New Jersey Constitution, to justify the search of a motor vehicle, the State must not only establish probable cause that evidence of criminal activity is in the vehicle, as required under the federal decisional law, but also must demonstrate that exigent circumstances justified the warrantless intrusion. 163 N.J. at 668-71.

The Court characterized exigent circumstances as those "circumstances that make it impracticable to obtain a warrant when the police have probable cause to search the car." Id. at 676. Although the Court recognized that the doctrine of exigent circumstances is "by design, inexact," it pointed out several factors to consider, including whether the element of surprise had been lost, whether the vehicle contained illicit drugs, whether there were third parties waiting to move the evidence, and whether police would have to guard the vehicle. Id. at 675, 676.

All of those factors were present in the circumstances here. When Roman activated his lights to stop defendant's vehicle, his reasonable suspicion that criminal activity was afoot was heightened by defendant's failure to stop. When defendant's vehicle continued to travel around the gas pump and Roman saw defendant throw an object towards the back seat and engage in other furtive movements in the area of the console as Roman approached, probable cause existed that defendant was engaged in criminal activity. Roman's explanation to defendant that he was stopped as part of a narcotics investigation eliminated any element of surprise to either defendant or the two occupants of his vehicle. Further, there was a female occupant who remained in the vehicle, and although she placed her hands where the officer could observe them, he had no way of controlling any other movement with the remainder of her body, which was particularly critical given the officer's observations moments earlier of defendant throwing something to the rear of the vehicle where the female occupant was seated. Finally, the other occupant remained unsecured beside the car and could have attempted to retrieve the drugs at any time.

These facts not only support the limited search of the vehicle based upon the automobile exception but also the minimal search of the vehicle as a protective measure for the officer's safety. See State v. Lund, 119 N.J. 35, 45 (1990). Likewise, the use of his flashlight to illuminate the interior of the vehicle did not transform an otherwise reasonable observation of the suspected narcotics in plain view into an unreasonable search within the meaning of the Fourth Amendment or under the New Jersey Constitution. State v. Johnson, 171 N.J. 192, 206 (2002).

Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J. 599, 615 (1997) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . should [we] appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (internal citations omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Measured against this standard, we are satisfied that the trial judge's findings of fact and conclusions of law are amply supported by the record and we discern no basis to disturb the trial court's ruling.

II.

Defendant next contends the trial court improperly limited his cross-examination of Roman when he would not permit defense counsel to inquire why the two other passengers were not charged and who made the decision not to charge them. Defendant argues that such evidence was relevant to assessing Roman's credibility, and by limiting questioning as to this issue, the court substituted its judgment for that of the jury, thus depriving him of a fair trial.

Trial courts retain wide latitude to impose reasonable limits on a defendant's cross-examination "based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." State v. Budis, 125 N.J. 519, 532 (1991). Therefore, an "appellate court will not interfere unless clear error and prejudice are shown." State v. Gaikwad, 349 N.J. Super. 62, 86 (App. Div. 2002).

Despite defendant's contentions, the court permitted cross-examination that disclosed to the jury that although the front seat passenger was arrested on an unrelated warrant and the passenger in the rear of the vehicle was arrested for possession of a glass smoking pipe as well as an outstanding warrant, they were never charged with any offenses arising out of the stop and seizure of suspected narcotics from the vehicle. Moreover, defense counsel, in his closing, argued that it was unfair that defendant was being tried and the two persons who occupied the vehicle with him were not in court as co-defendants nor produced as witnesses. Thus, we perceive no prejudice to defendant by virtue of the court exercising its discretion to limit the scope of Roman's cross examination. Ibid.

III.

Defendant contends the trial court erred when it permitted the State to introduce evidence of defendant's prior convictions to impeach his credibility as a witness in the event he took the stand to testify. Defendant argues that his convictions should have been excluded because they were chronologically too remote, his oldest conviction being from 1977. Defendant also points out that some of the convictions were for crimes unrelated to the offenses for which he was on trial and, therefore, lacked relevance. Defendant submits that this ruling prevented him from testifying on his own behalf.

The trial court excluded the 1977 conviction, but as to the remaining convictions, reasoned that the admissibility of the prior convictions was probative of defendant's credibility in the event he chose to testify. As the Court stated in State v. Sands, "a jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity . . . ." State v. Sands, 76 N.J. 127, 145 (1978). Additionally, defendant's contention that the prior convictions should not have been deemed admissible because they were dissimilar to the offenses for which he was on trial overlooks the rationale for admitting the convictions under Sands. The convictions were not relevant to defendant's propensity to commit offenses but to his veracity. See id. at 147. Finally, the court sanitized all of defendant's crimes as is required under State v. Brunson, 132 N.J. 377 (1993), so that only the number of prior convictions, the degree of the offenses committed, and the dates of the prior convictions were admitted. Id. at 394. Thus, the court did not abuse its discretion in ruling that the prior convictions would be admitted should defendant elect to testify.

IV.

Finally, defendant contends that the court's imposition of a three-year period of incarceration, rather than a probationary sentence, was excessive. More specifically, defendant claims that he put forth evidence that he didn't intend to cause any harm and that he had a family to support. He also argues that probation was more appropriate for possession of a small amount of drugs with no intention to sell. Having failed to consider these factors, defendant concludes the sentencing judge abused his discretion.

Before imposing sentence, the trial judge placed on the record the aggravating factors he considered and noted that there were no mitigating factors. Notwithstanding defendant's prior record, the court imposed the minimum custodial sentence for third-degree crimes. The trial judge properly found that no mitigating factors existed. Although defendant has two children, he was not living with them or paying child support. In addition, despite defendant's contentions, our courts consider drug crimes to be serious and harmful. See State v. Davis, 68 N.J. 69, 79-80 (1975). Having properly found no mitigating factors and having sentenced defendant at the minimum of the range for a third-degree crime, it cannot be said that this sentence shocks the judicial conscience. State v. Roth, 95 N.J. 334, 362-65 (1984).

Affirmed.

 

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A-2690-05T4

August 6, 2007