STATE OF NEW JERSEY v. LAMONT JORDAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2295-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAMONT JORDAN,

Defendant-Appellant.

_______________________________

February 14, 2011

Submitted January 26, 2011 - Decided

Before Judges Axelrad, Lihotz, and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-05-0858.

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

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

PER CURIAM

In a joint trial with co-defendant Nicole Pate, defendant Lamont Jordan was convicted of six offenses: third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (Count 2); third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (Count 3); second-degree possession of a controlled dangerous substance within 500 feet of a public housing facility, N.J.S.A. 2C:35-5(a) and -7.1 (Count 4); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (Count 12); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b) (Count 13); and disorderly persons possession of marijuana, N.J.S.A. 2C:35-10(a)(4) (lesser included offense of Count 8). The jury acquitted Jordan of all other charges.

On appeal, Jordan presents the following arguments:

POINT ONE: THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A SEPARATE TRIAL FROM CODEFENDANT WAS A VIOLATION OF DUE PROCESS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS MANDATING A NEW TRIAL.

POINT TWO: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST TO REVEAL DETAILS OF THE LOCATION OF THE POLICE SURVEILLANCE AND THE MANNER THAT THE SURVEILLANCE WAS CONDUCTED THUS PREJUDICING DEFENDANT'S RIGHT TO CHALLENGE THE VALIDITY OF THE SEARCH WARRANT AND VIOLATING HIS RIGHTS UNDER THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION.

POINT THREE: THE TRIAL COURT'S FAILURE TO ADVISE DEFENDANT OF HIS RIGHT TO CHALLENGE THE VALIDITY OF THE ALLEGED PREDICATE FELONIES MANDATING THE EXTENDED TERM VIOLATED HIS RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

We do not find any of these arguments persuasive and affirm.

I.

On March 21, 2007, members of the Edison Police Department executed a search warrant at a specified apartment unit in the North Edison Gardens housing facility, which was the residence of Pate and her twelve-year-old son. Upon entry pursuant to the warrant, six persons were observed inside, one of which Jordan gave flight out the back door. The police responded in hot pursuit and quickly apprehended Jordan, observing him reach into his pocket and toss something aside. Upon recovery of the object, it was determined to contain two bags of marijuana. Later, a search of Jordan's person produced nine packets of heroin.

Inside the apartment unit, other police officers conducted a search and compiled an inventory of contraband. Among the items seized were plastic bags containing heroin, cocaine, and marijuana. Quantities of cash and drug packaging paraphernalia were also recovered.

Jordan and Pate were indicted together by a Middlesex County grand jury for, among other things, conspiracy, possession of controlled dangerous substances with the intent to distribute, maintenance of a place for keeping or selling a controlled dangerous substance, and (as to Pate only) endangering the welfare of a child. Jordan moved for separate trials and to compel the State to reveal the location of surveillance vantage points. Both motions were denied, resulting in Jordan and Pate being tried in a unitary trial, their fates decided by a single jury.

Having been previously convicted of a drug-related crime in 1996, Jordan was eligible to be sentenced to an extended term pursuant to N.J.S.A. 2C:43-6(f). The State moved for the imposition of the extended term on Count 3, to which Jordan's defense attorney noted, "[t]here's no opposition we made for extended term. Based on [Jordan's] record it's a mandatory extended term."

The sentencing judge granted the State's motion and imposed, on Count 3 only, an extended term sentence of eight years, with four years of parole ineligibility. Additionally, the judge sentenced Jordan to a consecutive term of twelve months on Count 12. The other sentences imposed ran concurrently with Count 3, and several of the remaining charges were merged. The aggregate sentence was nine years with a four-year minimum term before parole eligibility. This appeal followed.

II.

A.

Jordan's first argument relates to the denial of his motion for a severance made pursuant to Rule 3:15-2(b). He sought a separate trial because in the planned joint trial he would be unable to compel the testimony of co-defendant Pate, who he contended would provide exculpatory evidence on his behalf. Pate indicated in an affidavit that she possessed information that tended to exculpate Jordan, but she also intended to testify in order to present her defense of duress. The Law Division denied the motion to sever, finding Pate's proffered testimony "not clearly exculpatory" and not likely to be credible. As it turned out, notwithstanding the denial of the motion, Pate did testify as promised at the joint trial, and Jordan was fully able to present to the jury all of her supposed exculpatory information.

The determination of whether to grant or deny a motion for severance is left to the sound discretion of the trial judge, whose decision will not be set aside absent a clear showing that the decision constituted a mistaken exercise of judicial discretion. State v. Brown, 170 N.J. 138, 160 (2001). Where two or more defendants are charged with offenses arising out of the same act or transaction, or series of acts or transactions, constituting an offense, the disposition of the charges will more likely occur in a single proceeding. Id. at 159-60; see also State v. Sanchez, 143 N.J. 273, 281-82 (1996).

In light of the strong preference for joint trials for co-defendants, the test for granting severance "is a rigorous one." State v. Brown, 118 N.J. 595, 605-06 (1990). The charges against Pate and Jordan clearly arose out of the "same act or transaction or in the same series of acts or transactions." Brown, supra, 170 N.J. at 159-60 (quoting Rule 3:7-7). Pate indicated that she would testify in a joint trial, and, in fact, she did. Clearly, Jordan suffered no prejudice from the manner of trying the co-defendants in a single proceeding.

We find that the trial court did not abuse its discretion when it denied the severance motion. See State v. Chenique-Puey, 145 N.J. 334, 341 (1996); State v. Mance, 300 N.J. Super. 37, 53 (App. Div. 1997). Even if the court made credibility findings on a thin record, its essential conclusion that Pate would testify was accurate. This preserved Jordan's due process rights. Jordan received exactly what he was due: Pate's testimony, and accordingly, we have no basis to reverse.

B.

Jordan next challenges the denial of his motion to reveal surveillance locations. He sought this information in order to either supplement a motion to suppress evidence or to attack the credibility of the affiant in the affidavit that was submitted in applying for the warrant. The motion court determined, after an in camera examination of Edison Detective Jeffrey J. Abrams, Jr., that the location of surveillance efforts related to this case were neither relevant to the possessory charges lodged against Jordan, nor to any of the other allegations in the indictment. Because the court found that the "surveillance only showed the buys and the things that took place that gave rise to the probable cause for the warrant," and "[t]he only thing [Jordan]'s charged with is the fruits of the warrant," there was no basis to overcome the privilege and reveal the exact location of the police surveillance site. See N.J.R.E. 515; see also State v. Garcia, 131 N.J. 67, 78 (1993); State v. Zenquis, 131 N.J. 84, 88 (1993).

A court's determination not to disclose a surveillance location will not be disturbed on appeal absent a showing that there was an abuse of discretion. Zenquis, supra, 131 N.J. at 88. "Trial courts must consider possible disclosure of surveillance locations on a case-by-case basis." Garcia, supra, 131 N.J. at 80. "In deciding whether to require disclosure, a court must balance the negative effect that such disclosure may have on the public good," id. at 80, against the defendant's need for the information to prepare his defense. Id. at 81; Zenquis, supra, 131 N.J. at 88. "[A] defendant seeking to learn the location of a police surveillance post should ordinarily show that he or she needs the evidence to conduct his or her defense and that there are no adequate alternative means of getting at the same point." State v. Williams, 239 N.J. Super. 620, 631 (App. Div. 1990). Thus, defendant must make a "substantial showing of need to defeat the State's proper assertion of the privilege." Garcia, supra, 131 N.J. at 81; State v. Ribalta, 277 N.J. Super.277, 288 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995).

The contention that absent knowledge of the exact location Jordan was deprived of "a critical piece of defendant's motion to suppress" is not supported. Linkage between the issuance of the warrant that opened the front door of the apartment unit and impelled Jordan to flee out the back is missing. So too, the claim lacks any connectivity between what was ultimately seized from Jordan's person and the observations made during the surveillance that led to the warrant's issuance.

Based on our review of the record and applicable law, we conclude that the Law Division did not abuse its discretion when it refused to invade the State's privilege to maintain the confidentiality of surveillance vantage points. We discern that no constitutional violation or other error requiring reversal occurred as the result of maintaining such privilege.

C.

In Jordan's final argument he contends that his due process rights were violated "when the trial court accepted the allegations of prior felony convictions as the basis for extended term sentencing." The argument is refined in Jordan's brief, which suggests that "constitutional error mandating reversal of his sentence" occurred because he "was not in any way advised that he could contest the validity of those purported [prior] convictions." Essentially, Jordan now argues that the Law Division was required to engage in a direct canvass with him before accepting defense counsel's stipulation and the contents of the presentence report respecting Jordan's prior criminal history. We disagree.

At sentencing, defense counsel stipulated to the existence of Jordan's multiple prior convictions, including the 1996 predicate for the extended term. On appeal, Jordan has not offered even a scintilla of evidence to suggest anything faulty with the predicate offense; rather, he argues simply that he was never advised by the court that he might contest the validity of such conviction, and that no inquiries were made regarding the voluntariness of the stipulation.

Jordan's argument lacks foundation in New Jersey law, and is not supported by convincing constitutional arguments. We are aware, however, that there is no consensus amongst the lower federal courts that have addressed this issue. See Dombrowski v. Mingo, 543 F.3d 1270, 1275-76 (11th Cir. 2008), cert. denied, __ U.S. __, 129 S. Ct. 2402, 173 L. Ed. 2d 1311 (2009). Our review of the handful of foreign jurisdiction opinions1 cited by Jordan does not persuade us to call forth the full panoply of criminal trial procedural rights as part of an extended term sentencing. See State v. Myers, 963 A.2d 11, 23-24 (Conn. 2009). Nor are we prepared to hold in all cases that such a court receiving a stipulation of prior convictions must make an independent inquiry to determine whether the stipulation is voluntarily made with full knowledge of its consequences.

In light of the acceptance of the accuracy of the presentence report, the acknowledgement of eligibility for extended term sentencing, and the absence of evidence that the predicate conviction was flawed, we conclude that Jordan suffered no erosion of due process rights.

Affirmed.

1 In re Yurko, 519 P.2d 561 (Cal. 1974); People v. Mosby, 92 P.3d 841 (Cal. 2004); State v. Cheatham, 80 P.3d 349 (Idaho Ct. App. 2003); Johnson v. Cowley, 40 F.3d 341 (10th Cir. 1994); Adams v. Peterson, 968 F.2d 835 (9th Cir. 1992); Cox v. Hutto, 589 F.2d 394 (8th Cir. 1979); Gov't of the Virgin Islands v. George, 741 F.2d 643 (3rd Cir. 1984).