STATE OF NEW JERSEY v. WILLIAM PENHA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3878-07T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM PENHA,

Defendant-Appellant.

________________________________________________________________

March 7, 2011

Submitted February 15, 2011 - Decided

Before Judges Payne and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-05-1225.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jane M. Personette, Designated Counsel, on the brief).

PeterE. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant William Penha appeals from his February 8, 2008 conviction on a charge of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), for which the judge sentenced him to a three-year term of non-custodial probation. On appeal, he raises the following claims:

[I.] THE POLICE OFFICERS LACKED PROBABLE CAUSE TO SEARCH DEFENDANT'S HOME; ACCORDINGLY, THE COURT BELOW ERRED IN FAILING TO SUPPRESS THE PHYSICAL EVIDENCE SEIZED FROM THE PREMISES.

[II.] THE TRIAL COURT ERRED IN FAILING TO CREDIT DEFENDANT WITH ALL APPLICABLE MITIGATING FACTORS.

We reject these contentions, and affirm defendant's conviction and sentence.

I.

The following facts were developed at the hearing on defendant's motion to suppress. On the night of December 16, 2006, Officers Amir Bercovicz and Daniel Newman of the Asbury Park Police Department were crouched along the side of a building at the intersection of Washington Avenue and Jersey Street, which Bercovicz described as "one of the most active spots for drugs in the city." Their attention was focused on the house at 1254 Washington Avenue, where they observed three men, one of whom was defendant, standing in front of the driveway. Over a twenty-minute period, Bercovicz observed "several of our . . . local people who are known for purchasing narcotics" approach the three, quickly engage in an exchange and then immediately leave the area. Bercovicz observed "four or five" such exchanges in the twenty-minute period. Although Bercovicz was unable to see "what was being handed back and forth," his "training and experience" told him that what he had seen was "absolutely consistent with hand-to-hand narcotics transactions."

After witnessing the fourth or fifth such transaction, Bercovicz and Newman, who were dressed in black shirts with the word "police" in yellow capital letters on the front and back, and wearing police badges around their necks, ran toward the three men while yelling "police, stop." The three men ignored the command and "took off very quickly." Bercovicz followed defendant, who ran toward the front door of 1254 Washington Avenue. While defendant struggled with the doorknob, he dropped a clear plastic bag to the ground that contained a number of smaller bags of crack cocaine. Bercovicz quickly picked up the plastic bag from the ground, and pursued defendant into the darkened house, where he could hear a dog barking.

Bercovicz ran up the stairs after defendant and saw him standing next to a table on which there were "all kinds of packaging materials," including clear plastic bags and scales, as well as crack cocaine.

While Bercovicz was struggling with defendant to place him under arrest, Officer Newman entered the house and assisted Bercovicz. Other officers in the Street Crimes Unit responded to the area and were able to apprehend one of the two who ran down Washington Avenue, Brandon Keyes. According to Bercovicz, the third individual was never apprehended.

Newman testified that he was unable to see the actual hand-to-hand transactions because Bercovicz was standing in front of him and blocking his view; however, he was able to see "the behavior and the actions of people coming up quickly, short conversations and then leaving," which "in [his] experience [is] what happens in a hand-to-hand. It's a short conversation. There's an exchange and then the buyer parts company with the seller."

Defendant called Dwayne Anderson, who testified that he was standing with defendant and Keyes, who is defendant's son, on the night in question. According to Anderson, "Bercovicz put the gun on [him]," threw him to the ground and told him "don't move." At that point, defendant walked to his car, turned off the radio and walked into the house. According to Anderson, Bercovicz, who was accompanied by four other police officers, demanded that Newman knock on the door and tell defendant to come back outside. Anderson testified that he had his dog with him at the time, and Bercovicz directed him to go across the street and tie up his dog before knocking on the door of 1254 Washington Avenue. In response to Anderson's knock on the door, defendant "opened the door and police went inside." At that point, the police told Anderson to leave. Anderson insisted at the hearing that he, defendant and Keyes were not selling drugs, but were simply standing in the driveway talking with people who had briefly stopped.

Anderson acknowledged that he had a prior criminal record, which he described as a first-degree drug conviction from 1998, for which he was sentenced to a ten-year term of imprisonment with a five-year period of parole ineligibility.

At the conclusion of the testimony, Judge Chaiet rendered an oral decision in which he found Bercovicz's testimony credible, as opposed to the testimony of Anderson, which "just didn't make any sense." The judge stated, "I just didn't believe him when he was done testifying." The judge provided a number of reasons for rejecting Anderson's testimony:

His story about all of those officers, him being placed down at gunpoint, and with all of those officers approaching, to simply allow [defendant] to walk in the house, then take [Anderson] to the house, have [him] knock on the door, have [defendant] come out and take care of the dog, take care of the lights, it just didn't make any sense.

The judge also stated that Anderson's prior criminal record caused him to be highly skeptical of the account Anderson provided.

The judge credited Bercovicz's testimony that when defendant ran into the house, he immediately pursued him, saw defendant drop a bag of cocaine to the ground, and followed defendant up the stairs where he observed more cocaine and packaging materials. The judge also credited Bercovicz's testimony that he had observed four or five hand-to-hand drug transactions before leaving his hiding place and telling defendant and the others to stay where they were.

The judge concluded that Bercovicz's observation of the defendant making four or five hand-to-hand transactions and dropping cocaine gave Bercovicz probable cause to arrest defendant "at that particular time, and thus he had probable cause to follow him . . . into that house because he was in hot pursuit of [defendant] at that particular time." Once lawfully in the second-floor room after the fresh pursuit, Bercovicz observed CDS and packaging materials in plain view, which the judge held justified the seizure of those items.

In the course of his oral opinion, the judge specifically rejected defendant's argument that Bercovicz's account of running into a dark house, by himself, while hearing a dog barking inside, was so dangerous an activity, and so contrary to normal police protocol, as to render Bercovicz's account unworthy of belief. The judge remarked, "if you look at certain things and you add some common sense, . . . there's certain things that Bercovicz did here that probably didn't make sense," but the judge rejected defendant's argument that Bercovicz's risky behavior proved he was "totally lying about this whole particular matter." The judge explained that he "didn't get that sense of [Bercovicz] from when [he] had him on the stand." Thus, the judge concluded that the warrantless entry into the house was justified because Bercovicz was in fresh pursuit of defendant, whom he had probable cause to arrest. The judge denied defendant's motion to suppress.

Approximately three weeks later, defendant entered a negotiated plea of guilty to the charge of possession of CDS, in return for which the State dismissed the other counts of the indictment, which charged defendant with drug distribution. At the time of sentencing, the judge found the existence of aggravating factors three, the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The judge found mitigating factor ten, defendant was likely to respond affirmatively to probationary treatment, N.J.S.A. 2C:44-1(b)(10). After finding that the aggravating factors outweighed the mitigating factor, the judge imposed the sentence we have described.

II.

In Point I, defendant argues that the police lacked probable cause to arrest him, and the warrantless search could not be justified by any exception to the warrant requirement. In making that argument, defendant does not quarrel with the judge's statement that an officer who is in fresh pursuit of an individual whom he has probable cause to arrest is entitled to pursue that individual even if he runs inside a house. Instead, defendant maintains that because Bercovicz was unable to see what was in the hand of either the buyers or defendant at the time of the supposed hand-to-hand transactions, Bercovicz lacked probable cause to conclude that defendant was engaged in the sale of narcotics. Thus, according to defendant, prior to approaching him, the officers lacked a reasonable basis to conclude that he was engaged in criminal behavior, and therefore, because they lacked probable cause, all evidence seized should be suppressed.

Defendant also argues in Point I that the judge's credibility determination in favor of Bercovicz required a "leap in logic" so vast as to be unsustainable. According to defendant:

[C]ertain events as recounted by Sgt. Bercovicz are so illogical that they cast substantial doubt over his testimony. First, it is well worth noting that Sgt. Bercovicz, at the time of the surveillance, had been a member of the Asbury Park Police Department for twelve years. One must, therefore, critically examine the likelihood of so experienced an officer making so colossal and dangerous a mistake as to enter unaccompanied a dark building, in a crime-ridden area, knowing that a dog is present and not knowing whether any other persons were in the structure.

. . . .

A far more logical version of events, however, is that offered through the testimony of Mr. Anderson as his version does not require the belief that the Asbury Police officers behaved incompetently.

When an appellate court reviews the factual findings made by a trial judge during a hearing on a defendant's motion to suppress, the reviewing court is obliged to uphold the judge's findings of fact "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted). An appellate court "must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" State v. Mann, 203 N.J. 328, 336-37 (2010) (alterations in the original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

While the police may order a suspect to stop based only upon a reasonable and articulable suspicion that the suspect has engaged in criminal activity, State v. Pineiro, 181 N.J. 13, 20 (2004), police may not arrest a suspect without probable cause, namely, a well-grounded belief that the individual has committed a crime, State v. O'Neal, 190 N.J. 601, 612 (2007).

In determining whether a police officer had a legitimate basis for ordering a suspect to stop, we consider the totality of the circumstances from the standpoint of an objectively reasonable police officer. State v. Arthur, 149 N.J. 1, 10-12 (1997). Here, Bercovicz, an officer with twelve years of experience, was on patrol in the most drug-infested section of Asbury Park when he saw what he knew from his training and experience to be hand-to-hand drug transactions, thereby providing him with reasonable suspicion of criminal activity. As the State correctly argues, that reasonable suspicion ripened into probable cause when defendant discarded cocaine. Officer Bercovicz, having seen defendant engaging in narcotics transactions, and having seen defendant discard cocaine, was authorized to arrest defendant because he had probable cause. State v. Henry, 133 N.J. 104, 110-11 (1993) (holding that an officer has probable cause to arrest where defendant commits an offense in the officer's presence), cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993).

Because Sergeant Bercovicz had probable cause to arrest defendant, Judge Chaiet properly concluded that exigent circumstances justified Bercovicz's warrantless entry into the house to effectuate an arrest of defendant as he was in "hot pursuit" of a fleeing felon. State v. Nikola, 359 N.J. Super. 573, 584 (App. Div.), certif. denied, 178 N.J. 30 (2003); State v. Josey, 290 N.J. Super. 17, 30-31 (App. Div.) (holding that when police saw the defendant selling CDS, they had "ample probable cause to arrest him" and to pursue him into his apartment), certif. denied, 146 N.J. 497 (1996). We thus conclude that Bercovicz'a pursuit of defendant, and his entry into the premises at 1254 Washington Avenue satisfied all constitutional requirements. Once Bercovicz was in the bedroom, he observed the additional contraband in plain view, and he was therefore entitled to seize it. State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).

We reject defendant's invitation to substitute our evaluation of the factual record for that of Judge Chaiet, who had the opportunity to see and hear the witnesses and evaluate their credibility. Mann, supra, 203 N.J. at 336-37. Judge Chaiet provided sound reasons for deeming Anderson's testimony unworthy of belief. We have been provided with no meritorious basis to second-guess his reasons for doing so. We therefore reject the claim defendant advances in Point I.

III.

In Point II, defendant maintains the sentence

of three years non-custodial probation was excessive. Our review of sentencing decisions is deferential. State v. Noble, 398 N.J. Super. 574, 598 (App. Div.), certif. denied, 195 N.J. 522 (2008). In the context of appellate review of sentencing, a reviewing court focuses on: (1) whether the trial court followed the sentencing guidelines; (2) whether the aggravating and mitigating factors that the trial court found are based upon competent, credible evidence in the record; and (3) whether, even though the court sentenced in accordance with applicable sentencing guidelines, nevertheless, the application of the guidelines to the facts of the case is so clearly unreasonable as to "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).

Defendant's sentencing argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, measured by the deferential standard articulated in Roth, we have no occasion to disturb the sentence Judge Chaiet imposed.