STATE OF NEW JERSEY v. ABDIAS NARCISSE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5649-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ABDIAS NARCISSE,

Defendant-Appellant.

_________________________________________

November 28, 2011

Submitted November 7, 2011 - Decided

Before Judges Parrillo, Grall and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 09-01-0122 and 09-11-2212.

Joseph E. Krakora, Public Defender, attorney for appellant (Charles P. Savoth, III, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was indicted for possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); possession of a prohibited weapon, a sawed-off shotgun, in violation of N.J.S.A. 2C:39-3(b); and possession of a prohibited weapon, a defaced firearm, in violation of N.J.S.A. 2C:39-3(d). Defendant's wife, Jina Soulliere, was charged in the same indictment with violations of N.J.S.A. 2C:39-3(b) and N.J.S.A. 2C:39-3(d). Defendant was also charged in a separate indictment with possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1).

Defendant and Soulliere filed a joint motion to suppress the evidence upon which the indictment for the weapons offenses was based. The trial court conducted a three-day hearing, following which it rendered a comprehensive oral opinion denying the motion.

After denial of the motion to suppress, defendant entered into a plea bargain with the State under which he agreed to plead guilty to the charges in both indictments and the State agreed to recommend an aggregate term of no more than seven years imprisonment, with three years of parole ineligibility.1 The trial court accepted the plea agreement and sentenced defendant to a seven-year term of imprisonment, with three years of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c), for possession of a handgun without a permit. The court also sentenced defendant to concurrent four-year terms for possession of a sawed-off shotgun and possession of cocaine and a concurrent one-year term for possession of a defaced firearm.

On appeal, defendant challenges the denial of his motion to suppress and argues that his sentence was excessive. The judgment of conviction for possession of cocaine does not appear to be encompassed by defendant's appeal.2

Defendant presents the following points for our consideration:

POINT I:

THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT FINDING THAT THE INITIAL MOTOR VEHICLE STOP WAS CONSTITUTIONALLY DEFICIENT.

POINT II:

THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT FINDING THAT THE INITIAL ARREST OF DEFENDANT WAS NOT CONSTITUTIONALLY DEFICIENT.

POINT III:

THE TRIAL COURT COMMITTED PLAIN ERROR BY FINDING SUFFICIENT PROBABLE CAUSE EXISTED TO JUSTIFY AN ARREST AND THEREFORE, THERE WAS NO LAWFUL SEARCH INCIDENT TO ARREST IN THIS MATTER.

POINT IV:

THE QUESTIONING OF MS. SOULLIERE WAS IMPROPER DUE TO OVERBEARING, ACCUSATORY QUESTIONING, THEREBY INVALIDATING HER SUBSEQUENT "CONSENT" TO SEARCH THE APARTMENT, THEREBY INVALIDATING THE SEIZURE OF GUNS THEREIN AND ANY ASSOCIATION WITH DEFENDANT.

POINT V:

IT WAS PLAIN ERROR TO CONDUCT THE MOTION FOR SUPPRESSION HEARING IN DEFENDANT'S ABSENCE.

POINT VI:

DEFENDANT'S SENTENCE WAS ILLEGAL.

We reject defendant's arguments relating to the denial of his motion to suppress substantially for the reasons set forth in Judge Kreizman's November 16, 2009 oral opinion. We add the following supplemental comments.

I.

Defendant's only argument relating to the denial of his motion to suppress that is not addressed in Judge Kreizman's opinion is that the trial court committed reversible error in continuing the hearing on the motion in defendant's absence.

On the third day of the hearing, which started four-and-a-half months earlier, defense counsel advised the court that Soulliere was in the emergency room of a local hospital as a result of an asthma attack and that defendant was with her. When questioned by the court about his client's absence, defense counsel said that defendant was Soulliere's "transportation" to the hospital and was with her there. The court also asked whether defense counsel had any additional witnesses to present, and defendant's counsel stated that he would be offering testimony by Patrolman Gabe Carrasquillo, who had previously testified for the State.

The court then indicated that it intended to proceed without defendant, stating: "[Defendant's] got no reason to not be here. He can get a cab. He can get a bus. He knows we've been carrying pieces of this case. We're going ahead." Defendant's counsel responded: "And just for the record, I would note that I'm not waiving my client's appearance, and we're proceeding over our objection." Soulliere's counsel did not join in this objection.

Defense counsel then adduced brief and inconsequential testimony from Patrolman Carrasquillo. This witness identified photographs of the sidewalk where the car occupied by defendant had been parked and the summonses that had been issued to the driver of the car. Carrasquillo also confirmed that only the third brake light on the car was not operating.

After this brief testimony, both defendants rested.

A defendant has a right under the Confrontation Clause of the Sixth Amendment and Article I, paragraph 10, of the New Jersey Constitution to be present at a testimonial hearing on a motion to suppress. State v. Robertson, 333 N.J. Super. 499, 509 (App. Div. 2000). However, this right may be waived by "defendant's conduct evidencing a knowing, voluntary and unjustified absence" from the courtroom. R. 3:16(b). Moreover, even if a defendant's constitutional right to be present at every stage of a criminal proceeding has been violated, his conviction will be reversed only if "the absence was prejudicial to the defendant's right to participate in the evidential proceedings and confront the witnesses and evidence against him or to his ability to assist with his own defense." State v. Dellisanti, 203 N.J. 444, 458-59 (2010).

The trial court found that defendant could have appeared in court at the third day of the hearing on his motion to suppress and thus his absence that day was "knowing, voluntary and unjustified." R. 3:16(b). We are required to defer to this factual finding. See State v. Elders, 192 N.J. 224, 243-45 (2007). Defendant was at the hospital only because Soulliere was unable to drive herself there; there is no indication her condition was life-threatening. Therefore, if defendant thought his presence at the third day of the hearing on the motion to suppress was important, he could have driven or taken public transportation to the courthouse and then returned to the hospital after the hearing.

Moreover, there is no basis for concluding that defendant was prejudiced by his absence during the third day of the hearing on the motion to suppress. Before that day, the State's witnesses had completed their testimony and both the driver of the car in which defendant was apprehended and defendant himself had testified. The only evidence presented on the third day was the previously described brief and inconsequential testimony of Patrolman Carrasquillo. Defendant has not undertaken to show how he was prejudiced by his absence from the courtroom during this testimony. Therefore, we reject defendant's argument that the denial of his motion to suppress must be reversed because of that absence.

II.

Defendant argues that the trial court erred in concluding that the stop of the car in which he was riding was lawful because the police officers who made the stop did not have reasonable suspicion that a motor vehicle violation had been committed.

To justify a motor vehicle stop, a police officer only has to have "a reasonable belief that a traffic law [has] been violated." State v. Puzio, 379 N.J. Super. 378, 383 (App. Div. 2005). A police officer may have such reasonable belief even if "the facts testified to by the officer [do not] actually support a finding of guilt beyond a reasonable doubt of the statutory violation." Id. at 382.

One of the motor vehicle violations for which the driver of the car in which defendant was riding was cited was parking on a sidewalk, in violation of N.J.S.A. 39:4-138(f). Defendant argues that there was no violation of this motor vehicle statute because the place where the car was parked did not fit within the definition of a "sidewalk" contained in N.J.S.A. 39:1-1, which is "that portion of a highway intended for use of pedestrians, between the curb line or the lateral line of a shoulder, or if none, the lateral line of the roadway and the adjacent right-of-way line." Defendant argues that even though the car was parked in a paved area beyond the curb line, it was not within the area "intended for the use of pedestrians." However, even though a trier of fact in a prosecution for a violation of N.J.S.A. 39:1-138(f) could have so found, that is a factual issue that would not negate the officer's reasonable suspicion of the commission of the motor vehicle violation of parking on a sidewalk required to justify the stop. See State v. Williamson, 138 N.J. 302, 304 (1994) ("[T]he State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor vehicle offense"); accord State in Interest of D.K., 360 N.J. Super. 49, 54 (App. Div. 2003); State v. Cohen, 347 N.J. Super. 375, 380 (App. Div. 2002). Therefore, we conclude, without considering the other alleged motor vehicle violation upon which the stop was based, that Judge Kreizman correctly concluded that the stop was lawful based on the alleged violation of N.J.S.A. 39:4-138(f).

III.

Defendant also argues that Soulliere's consent to the search of the apartment in which she resided with defendant was invalid because the police engaged in overbearing, accusatory questioning that made her consent involuntary.

The consent to the search was obtained by Officer Lorenzo Pettway of the Street Crimes Unit in the Asbury Park Police Department. Pettway testified that after he and other officers arrested defendant, the driver of the car, and the backseat passenger, Soulliere approached him on the street and asked "what happened." Soulliere told Pettway that the car in which the marijuana and handgun had been found was hers and that defendant was her boyfriend. Soulliere also told Pettway that she resided with defendant in an apartment across the street from the location of the arrest.

The police had been told previously by a confidential informant that that apartment and a car that matched the description of Soulliere's car were being used for the distribution of drugs by a black male and a white female and that there were weapons and drugs inside both the car and the apartment. Pettway told Soulliere about this information. He also told her he believed there may be weapons and drugs inside her apartment and asked her to consent to a search. Soulliere then said, "[W]hat if there is? What's going to happen?" Pettway responded that if Soulliere was cooperative, he would include that in his report.

At this point, Pettway asked his supervisor whether they had sufficient evidence to obtain a warrant. The supervisor responded that they could obtain a warrant, and Pettway told Soulliere that the police would get a search warrant if she refused to consent to a search of the apartment. Soulliere then executed the form authorizing the search. This search revealed a sawed-off shotgun and defaced firearm.

Soulliere did not testify at the hearing on the motion to suppress, and the trial court credited Pettway's testimony concerning her consent to the search. As described by Pettway, there was nothing accusatory or overbearing in his conversation with Soulliere resulting in her consent. Pettway simply told her the information the police had obtained from the confidential informant and from the arrest of defendant and the other occupants of her car. Pettway also told Soulliere that the police believed this information would be sufficient to obtain a warrant for a search of the apartment she occupied with defendant.

In State v. Cancel, 256 N.J. Super. 430, 434 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993), we held that a consent to search was not involuntary simply because the police told the suspect they would obtain a search warrant if she refused. In reaching this conclusion, we stated: "[T]he officers' comment to defendant that she would be detained while they obtained a search warrant was a fair prediction of events that would follow, not a deceptive threat made to deprive her of the ability to make an informed consent." Ibid. Courts in other jurisdictions have also held that a police officer's expression of an intent to apply for a search warrant does not make a consent to search invalid, provided there is in fact a sufficient basis for issuance of a warrant. See 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment

812(c) (4th ed. 2004).

In this case, the police clearly had probable cause to obtain a warrant for a search of the apartment occupied by defendant and Soulliere when they obtained Soulliere's consent to search. Therefore, the fact that Pettway told Soulliere the police would apply for a warrant if she refused consent did not make her consent involuntary.

IV.

Defendant's argument that his sentence was excessive is clearly without merit. R. 2:11-3(e)(2).

Affirmed.

1 Soulliere also pled guilty to the charges against her pursuant to a plea bargain. We recently affirmed her conviction in an unreported opinion. State v. Soulliere, No. A-5132-09 (Sept. 19, 2011).

2 We note that the evidence of this offense was not found in the search that was the subject of defendant's motion to suppress.