STATE OF NEW JERSEY v. JULIUS D. SIRMANS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5818-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIUS D. SIRMANS,

Defendant-Appellant.

____________________________________________

March 14, 2011

Submitted March 2, 2011 - Decided

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-10-0701.

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

Geoffrey D.Soriano, SomersetCounty Prosecutor, attorney for respondent (James L.McConnell, AssistantProsecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant was charged with second-degree possession of a controlled dangerous substance (CDS), heroin, with the intent to distribute within 500 feet of a public housing complex, N.J.S.A. 2C:35-7.1, and third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5b(3). He moved for the suppression of evidence seized during a street encounter with police. Judge Julie M. Marino conducted an evidentiary hearing and denied defendant's suppression motion.

In later proceedings before a different judge, defendant pled guilty to both counts of the indictment. At sentencing, the convictions were merged and an eight-year prison term, subject to a four-year period of parole ineligibility and a three-year period of parole supervision upon release, was imposed.

Defendant appealed. His assigned counsel presents the following arguments for our consideration:

I. THE TRIAL COURT ERRED IN DENYING DEFEN-DANT'S MOTION TO SUPPRESS BECAUSE THE POLICE LACKED A REASONABLE AND ARTICULABLE BASIS TO SUSPECT THE DEFENDANT OF CRIMINAL WRONGDOING AND THERE WAS INSUFFICIENT ATTENTUATION TO REMOVE THE TAINT OF THE POLICE MISCONDUCT. MOREOVER, THE STATE FAILED TO PROVE THAT EVIDENCE SEIZED AFTER THE DEFENDANT WAS UNJUSTIFIABLY DETAINED HAD BEEN ABANDONED (Partially Raised Below).

A. The Defendant Was Seized With-out Reasonable Suspicion That He Was Engaged In Criminal Activity.

B. The Taint of the Police's Un-lawful Stop And Detention of the Defendant was Not Attenuated by Any Action of the Defendant.

C. The State Failed to Establish That Evidence That Constituted an Essential Element of the Offense With Which the Defendant Was Charged Was Knowingly and Volun-tarily Abandoned.

II. THE SENTENCE IMPOSED ON THE DEFENDANT IS MANIFESTLY EXCESSIVE AND MUST BE REDUCED OR REMANDED FOR RESENTENCING. IN ADDITION, THE PERIOD OF POST-RELEASE SUPERVISION IS ILLEG-AL AND MUST BE VACATED.

A. The Sentence is Excessive.

B. The Period of Parole Super-vision Must Be Vacated.

Defendant also filed a supplemental pro se brief in which he presents the following argument:

POLICE FAILED TO ESTABLISH ARTICULABLE SUS-PICION IN ORDER TO EFFECTUATE AN INVESTIGA-TORY/TERRY[1] STOP THAT ESCALATED INTO A VIOLATION OF DEFENDANT'S 4TH CONSTITUTIONAL AMENDMENT.

We agree with the argument in Point II(B) -- and the State also concedes -- that the sentencing judge could not lawfully impose a period of parole supervision.2 Otherwise, we find insufficient merit in the remaining arguments in defendant's Point II to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We also reject Point I and the arguments asserted by defendant in his supplemental pro se brief regarding the denial of his suppression motion substantially for the reasons set forth by Judge Marino in her oral decision of August 26, 2008. We add only the following brief comments.

After an evidentiary hearing, at which four police officers and defendant testified, Judge Marino determined that the officers' version was more credible and, based on that determination, made findings as to the manner in which the evidence in question -- a cigarette box containing heroin -- was obtained. In reviewing, we "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, 192 N.J. 224, 243 (2007) (citations omitted); see also State v. P.S., 202 N.J. 232, 250 (2010); State v. Locurto, 157 N.J. 463, 470-71 (1999). In short, we are to "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." State v. Johnson, 42 N.J. 146, 161 (1964). As a result, a trial judge's findings "should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). Here, Judge Marino had the opportunity to hear and see the witnesses, and her credibility findings, as well as the factual determinations based on that credible evidence, are entitled to our deference.

The judge found that police officers were watching defendant in this high crime neighborhood, known for drug dealing, from a distance in an unmarked vehicle. The officers observed defendant enter and then quickly exit a vehicle while placing an object in his pants pocket. Those officers followed the vehicle and radioed to other officers as to what they had observed. That other group of officers, in plain clothes, arrived in an unmarked vehicle and approached the area on foot. When defendant saw them, he discarded one cigarette box on an outdoor grill, picked up another cigarette box, and started walking away. As the officers approached, one of them picked up and looked into the discarded cigarette box. Because the cigarette box contained what appeared to the officer to be heroin, defendant was arrested.

Considering defendant's quick entry and exit from a car -- an act consistent with CDS distribution -- and the fact that the neighborhood was known for drug dealing, Judge Marino concluded that the officers had reasonable suspicion of criminal activity to detain defendant. See State v. Arthur, 149 N.J. 1, 10 (1997). That suspicion justified the seizure and search of the cigarette box and alone warranted denial of the suppression motion.

The judge found an alternative basis for her ruling that we conclude is also legally sound. The judge recognized that the officers had the right to conduct a field inquiry and that the evidence was abandoned, discovered, and examined before the field inquiry ever commenced.

A field inquiry occurs when a law enforcement officer approaches an individual on the street or in a public place and requests that the individual answer some questions. State v. Stovall, 170 N.J. 346, 356 (2002). To be sure, the field inquiry is not without limits, State v. Davis, 104 N.J. 490, 497 (1986), but remains constitutional "so long as the officer does not deny the individual the right to move," State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973). See also State v. Privott, 203 N.J. 16, 24 (2010). Here, the judge determined that defendant discarded the cigarette box while the officers were approaching. In other words, the events that led to the discovery of the evidence in question occurred before defendant was detained, and thus, the evidence was not procured as the result of an unlawful detention of an individual.

Lastly, Judge Marino found that defendant abandoned the evidence in question. This conclusion was properly drawn from the facts found by the judge from the officers' testimony. Indeed, defendant also testified that neither the discarded cigarette box nor the outdoor grill it was left upon belonged to him. The judge was entitled to find from the evidence that the cigarette box had been abandoned, and as a result, defendant had no reasonable expectation of privacy in it. See, e.g., State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999); State v. Burgos, 185 N.J. Super. 424, 426-27 (App. Div. 1982).

To summarize, the judge's findings are wholly supported by evidence upon which she was entitled to rely -- and to which we must defer -- and the conclusions drawn from those facts were based on an appropriate application of accepted constitutional principles.

1Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

2The judge stated at sentencing that a three-year period of parole supervision would commence upon defendant's release from prison. However, as the State correctly argues, that term was not incorporated in the judgment of conviction. We agree with defendant that imposition of a parole supervision term would be unlawful but also agree with the State that the judgment of conviction includes no such provision. Accordingly, there is no need for further action on our part; defendant will not be burdened by a three-year period of parole supervision upon his release.