STATE OF NEW JERSEY v. MARVIN GREGORY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2654-07T42654-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN GREGORY,

Defendant-Appellant.

_________________________________

 

Submitted September 9, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-02-0156.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Marvin Gregory pled guilty to: third-degree conspiracy to possess a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count four); and fourth-degree obstruction of justice, N.J.S.A. 2C:29-1 (count five). He now appeals from the denial of his motion to suppress and also from the sentence imposed following his guilty plea. We affirm as to the motion to dismiss and remand for resentencing because there was no explanation for the imposition of the consecutive sentence.

I.

We glean the following facts, largely from the transcript of the motion to suppress.

New Brunswick Police Lieutenant Paul Schuster testified that he was working in the anti-crime unit, which is the department's narcotics squad, on December 13, 2005. At around 7 p.m., Schuster and nine other officers went to 5 Hoffman Boulevard to look for William Shepherd, for whom there were arrest warrants on various charges, including aggravated assault and weapons possession. Based on information from a confidential informant, Schuster believed that Shepherd would be going to apartment 2-A at 5 Hoffman Boulevard that night to provide the occupants with heroin and cocaine.

At around 7:25 p.m., Schuster saw Shepherd, along with Gregory and Dimitrius Richardson, approach 5 Hoffman Boulevard. Schuster testified that the three men entered the building "before [he] could direct [his] officers to make the arrest." Schuster stated that he recognized both Gregory and Richardson. He checked to see if there were any outstanding warrants for either. There were two warrants for Gregory; one for contempt of court and one for violation of probation. It is unclear from the record whether there were any outstanding warrants for Richardson. Schuster testified that he then decided to wait for the men to come out of the building, positioning some of his officers closer to the entrance.

After approximately forty-five minutes, Richardson emerged from the apartment building by himself. According to Schuster, after Richardson walked by one of the unmarked surveillance vans, he turned around and started walking back to 5 Hoffman Avenue, dialing his cell phone. Schuster "felt that he was more than likely notifying Mr. Shepherd of the police presence." The officers detained Richardson.

Schuster and other officers entered 5 Hoffman Avenue. Schuster "first tried ringing the downstairs doorbells, to try to gain access to the common hall." After getting no response, he "began ringing the second floor doorbells, and banging on the doors, and nobody responded."

Detective Christopher Plowucha was assigned to watch the rear of 5 Hoffman Avenue on the evening of December 13, 2005, assisted by Patrolman Yurkovic. The two were in plain clothes and an unmarked car. Plowucha observed Gregory and Shepherd "knock[] out the screen window or window on the second floor" and start to climb down the fire escape. Plowucha announced himself as a police officer and ordered the men to stop. Gregory and Shepherd then climbed back into the apartment. Plowucha pursued them, ascending the fire escape. Plowucha testified that he made two radio transmissions to Schuster, "once when [Gregory and Shepherd] were coming down and once when they stopped coming down and they were going back up."

Following the transmission from Plowucha that Gregory and Shepherd were heading down the fire escape, Schuster and his companions forced their way into the common hallway in the building. Once on the second floor landing, Schuster encountered the owner of apartment 2-A, who informed the officers that 2-A was his apartment. Schuster told the owner to open the door, but he maintained that he could not because "he was locked out." Schuster then received the transmission from Plowucha that Gregory and Shepherd were headed back into the apartment.

Schuster and the other officers then forced open the door to the apartment and "ran through the apartment to the bedroom." Schuster reported other officers observed Shepherd "discarding some heroin in a closet" and Gregory "discarding some cocaine in that same bedroom." Both men were placed under arrest. In addition to Gregory and Shepherd, there were four other individuals in the apartment. Schuster testified that at no point did the owner ever tell him he could not go in the apartment.

According to Plowucha, he climbed the fire escape and entered the apartment through the window. Once in the apartment, he saw four to five other police officers with Gregory and Shepherd already in custody. The area immediately surrounding where Gregory and Shepherd were arrested was searched. No weapons were recovered at the scene. However, cocaine was recovered in the area where Gregory was arrested.

Gregory and Shepherd were indicted in July 2006. Defendants filed a joint motion to suppress the evidence found in the apartment. The motion was heard on September 12 and October 26, 2006. Schuster and Plowucha were the only witnesses at the hearing. They testified to the facts recounted above.

Schuster testified at the hearing that his purpose in going to 5 Hoffman Boulevard on December 13, 2005, was to arrest Shepherd. He explained that his reason for not just "wait[ing] them out" was an incident involving the arrest of Shepherd in October 2005. According to Schuster, "a full scale S.W.A.T. was called out. They had the whole neighborhood shut down for several hours." Schuster testified that he wanted to prevent that type of scenario from reoccurring.

The trial judge denied the motion to suppress on November 16, 2006. Gregory pled guilty to counts one through five on December 1, 2006. He was sentenced on March 2, 2007. The judge found aggravating facts three, six, and nine, N.J.S.A. 2C:44-1(a), and mitigating factor ten, N.J.S.A. 2C:44-1(b). After merging counts one and two into count three, the trial judge sentenced Gregory to a three-year term of imprisonment for count three, a consecutive three-year term of imprisonment for count four, and a concurrent eighteen-month term of imprisonment for count five. He also imposed a one-year parole ineligibility for both counts three and four. However, he did not specifically explain his reasons for imposing the consecutive sentence.

This appeal followed.

II.

On appeal, Gregory raises the following issues:

POINT ONE: THE TRIAL JUDGE ERRED IN DENYING GREGORY'S MOTION TO SUPPRESS THE DRUGS THAT GREGORY ALLEGEDLY POSSESSED WHERE THERE WAS NO JUSTIFICATION FOR THE OFFICERS' FORCED ENTRY INTO [THE OWNER'S] HOME WITHOUT A SEARCH WARRANT.

POINT TWO: THE IMPOSITION OF CONSECUTIVE SENTENCES VIOLATED THE DICTATES OF STATE V. YARBOUGH.

Having reviewed Gregory's arguments on appeal with respect to the motion to suppress in light of the record before us, we find them to be without merit and not warranting extended discussion in a written opinion on appeal. R. 2:11-3(e)(2). We add only the following.

Gregory argues that the trial judge erred by denying the motion to suppress the evidence found in the apartment when he was arrested on December 13, 2005. He argues that the officers had no legal authority to enter the apartment without either a search warrant or the owner's consent.

The Supreme Court recently explained the standard of review applicable to a trial court's decision on a motion to suppress, as follows:

Our analysis must begin with an understanding of the standard of appellate review that applies to a motion judge's findings in a suppression hearing. As the Appellate Division in this case clearly recognized, an appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006) (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
 
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

[State v. Elders, 192 N.J. 224, 243-44 (2007).]

In Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 742 (1984) (internal citations and footnote omitted), the United States Supreme Court emphasized the protections afforded by the Fourth Amendment to the home as follows:

It is axiomatic that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. It is not surprising, therefore, that the Court has recognized, as "a 'basic principle of Fourth Amendment law[,]' that searches and seizures inside a home without a warrant are presumptively unreasonable."

Indeed, warrantless arrests in the home are permissible only when there exist both probable cause and exigent circumstances. Payton v. New York, 445 U.S. 573, 588-89, 100 S. Ct. 1371, 1381, 63 L. Ed. 2d 639, 652 (1980).

Even in cases in which exigent circumstances are found to exist, if "the government's interest is only to arrest for a minor offense, th[e] presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate." Welsh, supra, 466 U.S. at 750, 104 S. Ct. at 2098, 80 L. Ed. 2d at 743 (footnote omitted); State v. Holland, 328 N.J. Super. 1, 8 (App. Div.), certif. denied, 164 N.J. 560 (2000) (quoting the same). See also State v. Guertin, 461 A.2d 963, 970 (Conn. 1983) ("The [exigent-circumstances] exception is narrowly drawn to cover cases of real and not contrived emergencies. The exception is limited to the investigation of serious crimes; misdemeanors are excluded.").

In denying the motion to suppress, the trial judge addressed that issue as follows:

So here we have the police. They had information from a confidential informant that Mr. Shepherd was going to be bringing drugs into this particular location. They had arrest warrants for him. The purpose was to arrest him outside the residence. They were [] unable to do that. They waited for him to come, but then when Richardson came out, they thought that Richardson had contacted them, and that any drugs that may have been on Shepherd and Mr. Gregory could be easily destroyed. And they decided to go into the building. And they had arrest warrants for serious charges against Mr. Shepherd, also for Mr. Gregory. And one involved firearms, weapons, aggravated assault charges.

So what we have here [are] exigent circumstances. Was it objectively reasonable for the police to conclude that Mr. Richardson was calling Mr. Gregory or Shepherd, so that they could either escape the apartment, and/or discard the drugs that they may have possessed? And, therefore, these exigent circumstances precluded the expenditure of time necessary for the police to obtain a warrant from a neutral magistrate or judge, because of a probability that either the suspect -- one or more of the suspects would disappear, escape, or the drugs would be destroyed or disappear. State v. Smith, 129 N.J. Super. 430 (App. Div. 1974).

Also Mr. Gregory and Mr. Shepherd attempted to escape from the apartment on the fire escape, and once seeing the police, went back into the apartment, which further made the circumstances exigent for the safety of the officers, the safety of other people in the apartment, the safety of the other residents, innocent people in the apartment house. And the defendants, Gregory and Shepherd, were alerted that the police were there, and therefore, could have easily destroyed the evidence and the evidence of CDS.

The [wait] for securing of a search warrant for the apartment could have posed a safety risk of the officers and the public at large given that Shepherd had an arrest warrant for serious offenses. He was on the scene for allegedly a drug deal and was aware of the police presence. The officers were justified in the search and seizure of the drugs after the initial lawful entry, because the officers were lawfully in the bedroom and the discovery of the evidence was inadvertent in the course of making an arrest in the immediate area of the suspects, and there was sufficient evidence to show that the incriminating nature of the evidence was immediately apparent, because they were trying to hide the cocaine and heroin packed in plastic bags.

We find no error in the trial court's decision. There were warrants for the arrest of Shepherd and Gregory for serious offenses. The police officers had sufficient reason to believe that Richardson had spotted them and notified Shepherd of their presence, which was confirmed by their attempt to escape the building by climbing out the second-story window. There were clearly exigent circumstances.

Gregory points to the fact that the apartment belonged to an individual for whom there was no arrest warrant. The testimony was that the owner was outside of the apartment, and that he told the police officers that he was locked out. There is, however, no claim that he consented to their entry. Nevertheless, there were exigent circumstances permitting entry without the owner's permission, as required for warrantless entry into a third-party's home to execute an arrest warrant by cases such as State v. Cleveland, 371 N.J. Super. 286, 294 (App. Div.), certif. denied, 182 N.J. 148 (2004) ("[A]bsent special circumstances, a police officer cannot search for the subject of an arrest warrant in a home where the subject is merely a visitor without first obtaining a search warrant."). See also State v. Miller, 342 N.J. Super. 474, 495 (App. Div. 2001), noting:

Forcible entry to execute an arrest warrant is generally intolerable under traditional standards governing searches and seizures in this State. It follows that the use of an arrest warrant to gain any entry into a third party's home, but that which is freely consented to, is also forbidden unless the necessary special circumstances exist.

Consequently, we affirm the trial judge's decision with respect to the motion to suppress. We must remand to the trial court for resentencing because the trial judge did not explain his reasons for imposing a consecutive sentence on count four. State v. Carey, 168 N.J. 413, 424 (2001) ("When a trial court fails to give proper reasons for imposing consecutive sentences at a single sentencing proceeding, ordinarily a remand should be required for resentencing."); State v. Miller, 108 N.J. 112, 122 (1987) ("A statement of reasons is a necessary prerequisite for adequate appellate review of sentencing decisions.").

Affirmed in part; remanded in part

 

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A-2654-07T4

September 15, 2009