STATE OF NEW JERSEY v. WILFREDO W. HERNANDEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5268-04T45268-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILFREDO W. HERNANDEZ,

Defendant-Appellant.

___________________________________________________________

 

Submitted November 14, 2006 - Decided April 4, 2007

Before Judges Coburn and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-11-1474 and 04-04-0482.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Maura K. Tully, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On November 19, 2003, a Middlesex Grand Jury returned Indictment No. 03-11-01474, arising out of events allegedly occurring on October 7, 2003, that resulted in charges against defendant Wilfredo W. Hernandez and his co-indictee, Randy Williams, of third degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (count one); third degree possession of a controlled dangerous substance (heroin) with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); and third degree possession of a controlled dangerous substance (heroin) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count three).

Additionally, on April 7, 2004, relating to events allegedly occurring on February 4, 2004, a Middlesex County Grand Jury returned Indictment No. 04-04-00482 charging defendant with violations of the same provisions of the Criminal Code as those set forth in the November 19, 2003 indictment.

Finally, on September 7, 2004, defendant appeared before Judge Deborah J. Venezia and waived indictment, pursuant to R. 3:7-2, on Accusation No. 04-09-00212, which charged him with third degree distribution of a controlled dangerous substance (heroin) on March 31, 2004, in violation of the provisions of N.J.S.A. 2C:35-5a.

That same day, defendant entered into a negotiated plea agreement wherein he pleaded guilty to count three of the March 19, 2003 indictment (No. 03-11-01474); count three of the April 7, 2004 indictment (No. 04-04-00482); and the sole count of September 7, 2004 accusation (No. 04-09-00212).

On January 3, 2005, in accordance with the plea agreement, the judge sentenced defendant to a term of five years with thirty months parole ineligibility for his conviction on count three of the November 2003 indictment. This sentence was to run concurrently with defendant's term of five years with thirty months parole ineligibility on count three of the April 2004 indictment. As to his conviction under the September 2004 accusation, the judge sentenced defendant to a term of three years to be served consecutively to the other two sentences. Appropriate fines and penalties were imposed on all convictions.

On appeal, defendant raises the following points of error:

POINT I: THE DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AS THE STATE FAILED TO IDENTIFY THE DEFENDANT IN COURT AS THE INDIVIDUAL WHO COMMITTED THE ALLEGED OFFENSE.

POINT II: THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.

We have considered defendant's arguments in light of the facts and applicable law, and for the reasons that follow, we affirm defendant's conviction and sentence.

Acting on a tip from a confidential informant, Lieutenant Paul Schuster of the New Brunswick Police Department established surveillance in the area of Abeel and Hassart Streets in New Brunswick on October 7, 2003. During his surveillance, Schuster observed defendant and Williams being followed by three men as they walked down Hassart Street. The men then turned onto Abeel Street, stopping about midway down that block at a black Honda Civic. Defendant reached under the driver's side rear fender to retrieve a black key case. Defendant then handed packets of suspected CDS to Williams from the case, and they each sold suspected CDS to the men from the group that had been following them.

Following the sale, the unidentified men left the area and Williams handed defendant the money from his sale and took the key case. Defendant then entered Williams' car, which was parked across the street, and began counting the money with the door open. At this point, Williams began walking away with the key case, and defendant's sister pulled up next to the automobile and began a conversation with defendant.

After observing the exchange between defendant and the unidentified men, Schuster contacted backup officers to arrest defendant and Williams. Officers arrived as defendant was talking to his sister and Williams was leaving the area. Police arrested defendant and found $337 in cash on him. When officers called out to Williams, he dropped the black key case and returned to the officers. After retrieving the case, officers discovered that it contained ten bags of heroin. After the officers arrested Williams and immediately searched his automobile, they found a paper packet, containing twenty bags of heroin, stuffed in the passenger side air vent.

About four months later, on February 8, 2004, police began following defendant and witnessed defendant discard several packets out the window of the automobile. These packets were believed to contain heroin, and officers continued to follow defendant and eventually stopped him. This stop occurred within 1000 feet of a school and officers noticed an additional packet of heroin on defendant's trunk. Thereafter, on March 31, 2004, defendant sold heroin to an undercover police officer. These acts make up the factual basis for Indictment No. 04-04-00482 and Accusation No. 04-09-00212, respectively.

Plaintiff's appeal concerns only his conviction arising out of the events of October 7, 2003, the subject of the November 19, 2003 indictment. As his first point of error, defendant argues that his motion to suppress physical evidence should have been granted. More particularly, defendant moved to suppress the heroin and money discovered in the searches of defendant's person and co-indictee Williams' vehicle.

On April 4, 2004, the judge heard testimony from Lieutenant Schuster. During his testimony, Schuster indicated that he knew what defendant and Williams looked like prior to receiving the tip that led to the surveillance at Abeel and Hassart Streets, but Schuster did not specifically identify defendant and Williams during the suppression hearing. Defendant now claims this was error. We disagree.

Here, there was no genuine issue as to the identity of defendant or Williams. The issue before the court was whether the warrantless search of defendant and Williams' vehicle was valid. Furthermore, defendant cites no case law, nor are we aware of any, that would require an in-court identification when dealing with a motion to suppress evidence because of a warrantless search.

We are satisfied the court properly declined to suppress the evidence. The judge found that any items recovered from defendant or Williams were within the search incident to a lawful arrest exception to the warrant requirement. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Eckel, 185 N.J. 523 (2006). The judge also found the search of the automobile to be permissible under the automobile exception to the warrant requirement, based on the fact that defendant had been sitting in the vehicle counting money from his narcotics transactions and the location of the vehicle made it likely that it could be easily moved and the contents thereby elude detection. State v. Cooke, 163 N.J. 657, 671 (2000). Each of these determinations is supported by sufficient credible evidence in the record, and we find no error in the court's denial of the motion to suppress the evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146 (1964).

Defendant's next argument deals with his sentence. In sentencing defendant, the judge found the following aggravating factors: "risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3) and "need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9). The court found no mitigating factors, though she did acknowledge defendant's "unresolved substance abuse problem" and ordered that he receive treatment during his incarceration.

On appeal, defendant argues that the court failed to articulate sufficient reasons for applying the aggravating factors and for not finding a mitigating factor based on his drug dependency, and he asserts that, as a result, his sentence should be vacated and the matter remanded for resentencing. We disagree.

In reviewing a sentencing decision, we may not substitute our judgment for that of the trial court. State v. Evers, 175 N.J. 355, 386 (2003). Furthermore, we will only reverse where a sentence, including a sentence resulting from a plea agreement, is "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984); State v. Sainz, 107 N.J. 283, 292 (1987). "The essence of a negotiated plea is defendant's voluntary and informed waiver of his right to a trial in return for the reduction or dismissal of certain charges, recommendations as to sentence and the like." State v. Davis, 175 N.J. Super. 130, 140 (App. Div.), certif. denied, 85 N.J. 136 (1980). As a result, a trial court's decision to impose a lawful sentence in accordance with a negotiated plea agreement should be given "great respect, since a 'presumption of reasonableness . . . attaches to criminal sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61, 71 (App. Div.), certif. denied, 145 N.J. 373 (1996) (quoting Sainz, supra, 107 N.J. at 294).

In finding aggravating factor (3), the sentencing judge based her determination upon defendant's "lengthy record beginning as a juvenile . . ., the indictable convictions as well as several outstanding bench warrants." She also noted defendant's previous incarceration, parole, violation of parole and return to prison whereupon he "maxed out," indicating a strong likelihood that he would commit another offense. In support of aggravating factor (9), the judge found that there was a need for the sentence to "send the right message to [defendant] and others about the consequences for this kind of illegal conduct." Thus, the record adequately reveals the judge's articulated reasons for applying these aggravating factors. There is also ample credible evidence in the record to support the application of these factors. We perceive no abuse of discretion in the trial court's finding these aggravating factors and imposing this sentence. Moreover, defendant's drug dependency is not a factor tending to justify or excuse his conduct. N.J.S.A. 2C:44-1b(4); State v. Ghertler, 114 N.J. 383, 389-90 (1989).

Finally, because of his plea bargain, defendant, as he acknowledged at sentencing, was able to avoid a mandatory extended term of five to ten years and the attendant statutorily-mandated parole disqualifiers. Defendant was also able to be sentenced in one hearing for his three separate offenses, thereby benefiting from a comprehensive, integrated disposition and avoiding the possibility of being sentenced on these separate occasions by three different judges. The result falls far short of shocking the judicial conscience, and, consequently, we reject defendant's challenges to the sentence.

 
Affirmed.

(continued)

(continued)

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A-5268-04T4

April 4, 2007