STATE OF NEW JERSEY v. CARLOS CONCEPCION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6558-05T46558-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS CONCEPCION,

Defendant-Appellant.

____________________________

 

Submitted September 10, 2007 Decided October 17, 2007

Before Judges Graves and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 05-07-0711.

Yvonne Smith Segars, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Carlos Concepcion was convicted by a jury of third-degree possession of cocaine under N.J.S.A. 2C:35-10(a)(1) and sentenced to three years probation, appropriate monetary penalties, and forfeiture of his public employment. In this appeal, defendant challenges the denial of his motion to suppress evidence as well as one of the jury instructions. He also seeks a stay of forfeiture of his public employment pending appeal.

Defendant's brief raises the following points:

POINT I

THE MOTION TO SUPPRESS WAS ERRONEOUSLY DENIED BECAUSE THE POLICE OFFICERS LACKED REASONABLE SUSPICION OF CRIMINAL ACTIVITY SUFFICIENT TO JUSTIFY THE SEIZURE OF APPELLANT'S PERSON AND VEHICLE MAKING THE SEARCH INCIDENT TO THAT SEIZURE UNLAWFUL

POINT II

THE TRIAL JUDGE'S CHARGE REGARDING SENTENCING WAS INFLAMMATORY AND IMPLIED APPELLANT SHOULD BE FOUND GUILTY

POINT III

THE TRIAL JUDGE ABUSED HIS DISCRETION IN NOT STAYING THE ORDER OF FORFEITURE OF PUBLIC EMPLOYMENT PENDING APPEAL

For the reasons that follow, we affirm.

At the suppression hearing, Detective Jason Astbury testified that on March 11, 2005, at approximately 2:17 a.m., he and Detective John Carrigg were on patrol in an unmarked vehicle. As they passed a Shell gas station in a high drug-trafficking area, Astbury saw a car drive towards the rear of the gas station building, park and turn off its lights. The two occupants remained inside. In the three months prior, Astbury had made approximately ten arrests for narcotics and weapons offenses at this location. The officers drove into the well-lit lot. As they pulled alongside the vehicle, Astbury saw defendant, who was the driver, turn around, look at the officer and dip his right shoulder down as if he were putting something on the floor of the car. The officers immediately left their vehicle and Astbury shone his flashlight into the driver's side through the passenger's window. He saw a small plastic bag on the floor by defendant's feet, which contained a white, rock-like substance he recognized to be illegal drugs. The officers ordered defendant out of the car and retrieved the bag. The white substance was cocaine.

At trial, defendant, a civilian social worker for the Department of Corrections, testified at variance with Astbury's recitation of the facts. He said that on the night in question he went out to buy beer at an after-hours "bootlegger." There he met his passenger, Leroy Wilkins, who asked him for a ride to the twenty-four-hour mini-mart located at the Shell station. In exchange for the ride, Wilkins agreed to pay defendant. When the police arrived, defendant was merely waiting to be paid while Wilkins talked to a third person behind the car. Defendant said that when the light flashed in his face, he feared he had been "set up" because he worked with the "most dangerous criminals." Defendant claimed he immediately got out of the car and identified himself. Meanwhile, Wilkins fled but was quickly apprehended. Defendant also testified that while he and Wilkins were being booked, Astbury walked over to him, smiled, and broke off a piece of Wilkins' rock cocaine. He placed it in a baggie, tagged it with defendant's name, held the baggie up for him to see and said "this is yours." Defendant's explanation for the officer's conduct was that "he is a Maverick, he is overzealous, whatever." A photograph of the vehicle's interior compartment, taken from the passenger side, was shown to defendant. He acknowledged a small portion of the floorboard could be seen from that angle.

During his testimony, defendant made several unsolicited statements in front of the jury about the impact of the possession charge on his life. For example, on direct examination, he stated that if housed with the general prison population, he would "probably" be killed because he worked for the Department of Corrections. He asserted that the trial had turned his life "upside down." On cross-examination, he said the trial had so impoverished him that he was "ready to go to the soup kitchen."

Wilkins entered a guilty plea prior to trial. In his factual basis, he testified that when police happened upon the car, he had just sold cocaine to defendant. Wilkins repudiated this testimony at trial, claiming he had inculpated defendant because he was "nervous."

The motion judge denied the motion to suppress the cocaine on the grounds that once Astbury saw contraband in the car in plain view, the seizure did not violate the Fourth Amendment to the United States Constitution. Generally, "under both the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of our State Constitution, searches and seizures conducted without warrants issued upon probable cause are presumptively unreasonable and therefore invalid." State v. Elders, 192 N.J. 224, 246 (2007). See U.S. Const. amend. IV; N.J. Const. art. I, 7. The State bears the burden of proving that a warrantless search or seizure "'falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). We concur with the motion judge as the search in this case is such an exception.

The inquiry as to whether a seizure is lawful can include consideration of the late hour and location where it is conducted. State v. Nishina, 175 N.J. 502, 512 (2003). In this case, the officers' initial conduct in pulling alongside the parked vehicle to investigate whether criminal activity was afoot was reasonable as it occurred in a high drug-trafficking area in the middle of the night. They intended to conduct a field inquiry of the occupants of a car stopped of its own accord. See id. at 510. It was not until Astbury saw defendant's expression and movement towards the floor of the car that the officers left their vehicle and approached.

Astbury's use of a flashlight to look into the car's interior offends no constitutional principle. The use of artificial light to illuminate a darkened area is not even considered a search. State v. Johnson, 171 N.J. 192, 210 (2002); State v. Gibson, 318 N.J. Super. 1, 11 (1999).

An exception to the warrant requirement arises when probable cause and exigent circumstances exist. Nishina, supra, 175 N.J. at 515 (citing State v. DeLuca, 168 N.J. 626, 632-33 (2001)). Probable cause is defined as "a 'well grounded' suspicion that a crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). Astbury's observations at that place and hour gave rise to probable cause that a crime had been or was being committed, namely, drug possession.

Exigent circumstances abound. The fact the exigencies were police-created in this case is not fatal. See State v. Hutchins, 116 N.J. 457, 460 (1989); State v. De La Paz, 337 N.J. Super. 181, 196 (App. Div.), certif. denied, 168 N.J. 295 (2001); State v. Josey, 290 N.J. Super. 17, 25 (App. Div.), certif. denied, 146 N.J. 497 (1996). It was the officers' duty to investigate the suspicious circumstance of a vehicle pulling into the rear of a gas station in the middle of the night in a high drug-trafficking area. Once the drugs were lawfully observed, given the time and place, there was no need to impose upon police the burden to apply for a warrant. See Nishina, supra, 175 N.J. at 518.

Therefore, the court's denial of the motion to suppress is affirmed.

Defendant also contends the trial judge committed error when he instructed the jury about his unsolicited statements. Initially, when the State objected to defendant's comments about the effect of the indictment on his life, the judge instructed the jury to disregard them. As defendant's testimony progressed, the State made no further objections and the judge gave no further instructions. At the close of the case, however, over the objection of defense counsel, the judge charged the jury as follows:

A few words about sentencing in the event of a conviction. As you know, the [c]ourt and jury have separate and distinct functions. Among the functions reserved to the [c]ourt is the imposition of a sentence in the event of a conviction.

Sometimes the jury may feel anger or revulsion because of a defendant's conduct, and in order to ensure a maximum sentence the jury may be inclined to convict the defendant on the charge whether the proofs warrant conviction or not.

Conversely, the jury may be inclined to give the defendant a break, and in an effort to avoid imposition of a sentence, to find the defendant not guilty even when the [S]tate has proven beyond a reasonable doubt the commission of the crime.

To permit your decision to be governed by anger or sympathy is in violation of your oaths as judges of the facts. Your decision must be free of bias or sympathy, and in reaching your verdicts, you must not usurp the function of the [c]ourt which imposes the sentence in the event of a conviction.

In other words, the jury's focus is on the alleged commission of the crime, not on a sentence to be imposed. So that you may approach your deliberations with your minds at ease and with some understanding of the sentencing process, the [c]ourt informs you that before a sentence is imposed, a pre-sentence report is presented to the [c]ourt outlining the defendant's life history, his health status, his employment status, his education, his family, and those things which provide personal insights which are necessary to formulate a sentence.

The [c]ourt is also aware, of course, of the crime of which the defendant stands convicted.

In addition, the [c]ourt takes into account a statutory list of aggravating and mitigating factors. In other words, although sentencing must be imposed within legal guidelines, the specific sentence to be imposed is not automatic in this case, and is left to the sound discretion of the [c]ourt.

The instruction was intended to neutralize any sympathy created by defendant as a result of his unsolicited statements.

Other than the instruction about defendant's volunteered comments, the judge charged in accord with the Model Jury Charges. The proofs against defendant were strong. The defense theory that the evidence was fabricated was not believed by the jury. The co-defendant's recantation was not believed by the jury.

A party is entitled to a charge which explains the law, is accurate, and that overall, does not contain prejudicial error. A party is not entitled to "have the jury charged in his own words." State v. LaBrutto, 114 N.J. 187, 204 (1989) (citing State v. Thompson, 59 N.J. 396, 411 (1971)). The words of the instruction were not as defendant would have wished but they served the purpose of offsetting any prejudice that inured to the State from defendant's comments. Although the challenged instruction inappropriately focused on sentencing consequences in the event of conviction, in the context of the strong proofs against defendant, it cannot be fairly said to have been capable of producing an unjust result. R. 2:10-2. Giving the instruction was harmless error.

 
Defendant's final argument is that the trial court should have stayed forfeiture of his public employment pending appeal as permitted by N.J.S.A. 2C:51-2(c). Any public office holder convicted of a crime of the third degree or higher forfeits employment as required by N.J.S.A. 2C:51-2(a)(1). Defendant's conviction was of a third degree crime. An order of forfeiture must be entered "[i]mmediately upon a finding of guilt by the trier of fact or a plea of guilty entered in any court of this State unless the court, for good cause shown, orders a stay of such forfeiture pending a hearing on the merits at the time of sentencing." N.J.S.A. 2C:51-2(b)(1). Forfeiture should be stayed pending appeal only where a court is "clearly convinced that there is a substantial likelihood of success on the merits." N.J.S.A. 2C:51-2(c). The burden rests with defendant to establish good cause. In this case no cause, much less good cause, was established. In fact, a stay of forfeiture was not even requested at the sentencing. In any event the question is moot. The stay was not sought at sentencing or by way of motion. The appeal has now been decided and the affirmance of defendant's conviction of a third-degree offense warrants the forfeiture previously ordered.

Accordingly, we affirm.

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A-6558-05T4

October 17, 2007