STATE OF NEW JERSEY v. FAARAH R. BALLON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3370-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FAARAH R. BALLON,

Defendant-Appellant.

A

December 3, 2012

Before Judges Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-10-01815.

Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).

Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Anderson, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress, defendant Faarah Ballon pled guilty to third-degree possession of cocaine with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5(a)(1). In accordance with his plea agreement, defendant was sentenced to a five-year state prison term with a two-year period of parole ineligibility. Defendant now appeals, challenging the April 28, 2011 order denying his suppression motion and also the length and conditions of his sentence. We affirm.

On March 12, 2010, Officer Terrence Doran of the
Jersey City Police Department (JCPD) was on narcotics detail with Officer Chawanik and Sergeant McNally, all dressed in plain clothes. The JCPD had received multiple complaints of "heavy pedestrian traffic at all hours night and day" at an address on Grand Street (the Grand Street building), consistent with possible drug activity.

Officer Tony Goodman, a narcotics detective, resides in the area. He provided information to the officers on narcotics detail regarding suspected drug activity at the Grand Street building. Specifically, he informed them that he had seen a dark blue Toyota Camry on three different occasions pull up to the corner on Grand Street. On each occasion, an approximately six-foot three-inch black male, in his mid-thirties, with a thin build, bald head, and a thick beard, would exit the car and enter the Grand Street building. The man would then exit the building shortly thereafter, counting currency.

Officers Doran, Chawanik, and McNally undertook surveillance of the area. At approximately 8:35 p.m., they observed a dark-colored Toyota Camry approach the area. A male matching the description provided by Officer Goodman then exited the car and walked towards the Grand Street building.

Officers Doran, Chawanik, and McNally then exited their unmarked vehicle, with their badges on display, and approached the man. As they approached, the man, later identified as defendant, placed his hand into his right jacket pocket. According to Officer Doran, he thought when defendant reached into his jacket pocket, "he might be going for a weapon." The officers ordered defendant to remove his hand from his pocket, but he did not comply. Officer Doran grabbed defendant's left arm and Officer Chawanik grabbed his right arm.

Officer Doran then began to pat defendant down for weapons and felt a bulge in his left jacket pocket, which Officer Doran said "could have been anything" and "really alarmed" him and the other officers. Officer Doran searched defendant's pocket and the bulge turned out to be fifty-four vials of cocaine and $44 in currency. Defendant was arrested.

On October 26, 2010, a Hudson County Grand Jury indicted defendant for third-degree possession of a controlled dangerous substance (CDS), namely cocaine, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with the intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of cocaine with the intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-5(a)(1) (count three); and second-degree possession of cocaine with the intent to distribute within 500 feet of a public housing faciliy, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35 7.1 (count four).

Subsequently, defendant filed a motion to suppress, arguing the search of his jacket pocket was unconstitutional. On April 25, 2011, the trial judge heard testimony from Officer Doran in regards to the motion. On April 28, 2011, the judge heard oral argument from defendant and the State. Following argument, the judge issued an oral opinion denying defendant's motion. He found the search to be constitutional, consistent with Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968), and State v. Roach, 172 N.J. 19 (2002).

On May 9, 2011, defendant entered into a negotiated plea agreement by which he pled guilty to count three of the indictment in exchange for the State dismissing the remaining counts and recommending a five-year state prison term with a two-year period of parole ineligibility.

On September 9, 2011, defendant was sentenced in accordance with the plea agreement. On February 29, 2012, defendant filed a notice of appeal.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPRESS EVIDENCE RECOVERED AFTER AN UNCONSTITUTIONAL SEARCH AND SEIZURE IN VIOLATION OF U.S. CONS., AMENDS. IV & XIV AND N.J. CONST. (1947), ART. I, PAR. 7.

POINT II

DEFENDANT'S SENTENCE OF FIVE YEARS WITH TWO YEARS OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.

When reviewing a judge's ruling on a suppression motion, the appellate court "must uphold the factual findings underlying the [judge'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) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)).

The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures. Generally, in order for a search or seizure to be constitutionally permissible, the police must first obtain a warrant based on probable cause. State v. Maryland, 167 N.J. 471, 482 (2001). However, both federal and state case law have recognized exceptions to the warrant requirement.

One such recognized exception is an "investigatory stop," also known as a Terry stop. Id. at 487 (citing Terry, supra, 392 U.S. at 22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). "[A] police officer may conduct an investigatory stop if, based on the totality of the circumstances, there is a reasonable and particularized suspicion to believe that an individual has just engaged in, or is about to engage in, criminal activity." Ibid.

During an investigatory stop, for safety concerns, police officers may conduct a protective search if they have an objectively reasonable suspicion that "there is reason to believe that [the] suspect is armed and dangerous." Roach, supra, 172 N.J. at 27. However, the search is limited to a minimally invasive pat-down of the suspect's outer clothing for the specific purpose of determining whether he or she has a weapon on his or her person. Ibid.

Depending on the circumstances, if a police officer feels an unidentifiable bulge or object during a lawful pat-down, the officer may seize the object. Id. at 29. This does not mean "every time an officer pats down a [suspect] and cannot ascertain what he is feeling, he is free to seize the item." Ibid. The test is whether based on the totality of the circumstances, retrieving an unidentifiable object from the suspect's person is objectively reasonable. Ibid.

Here, we find based on the totality of the circumstances the officers conducted a constitutionally valid investigatory stop of defendant and subsequent seizure of the contents in his jacket pocket.

The officers were in an area where suspected drug activity was occurring and it was dark outside. They received specific eyewitness information from Officer Goodman regarding the suspected drug dealer. They observed a car pull up that exactly matched Officer Goodman's description. Defendant exited the vehicle and matched the description of the suspected drug dealer. This gave the officers a reasonable and particularized suspicion to believe that defendant was about to engage in an illegal drug transaction. See Maryland, supra, 167 N.J. at 487. As such, the initial investigatory stop was valid.

Upon seeing the officers, defendant placed his hand in his jacket pocket and refused to remove his hand, despite multiple orders from the officers to do so. At that point it was reasonable for the officers to be concerned that defendant may have been reaching for a weapon. Thus, the subsequent pat-down of defendant's person was appropriate.

During the pat-down, Officer Doran felt an unidentifiable bulge in defendant's left pocket. Despite the bulge not being readily identifiable as a weapon, based on the circumstances the darkness, defendant matching the description of a suspected drug dealer, defendant keeping his hand in his pocket and not complying with police orders Officer Doran had an objectively reasonable concern for the officers' safety and was constitutionally permitted to seize the object from defendant's jacket pocket. See Roach, supra, 172 N.J. at 29. The fact that the bulge was in defendant's left rather than right pocket does not compel a different result. Therefore, we find the trial judge correctly denied defendant's motion to suppress.

As to defendant's argument that his sentence is excessive, we find this argument without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Defendant's sentence is exactly in accordance with the negotiated plea agreement he freely and voluntarily accepted. Although the trial judge did not explain the basis for his findings of aggravating factors three (risk defendant will commit another offense), six (extent of defendant's criminal record), and nine (need for deterrence), defendant's record of four prior convictions for CDS possession and distribution provide a sufficient factual basis for finding those factors applied. N.J.S.A. 2C:44-1(a). We find no basis for defendant's contention that the trial judge should have applied mitigating factor nine (unlikely defendant will commit another offense). N.J.S.A. 2C:44-1(b).

Affirmed.