STATE OF NEW JERSEY v. MARK T. FIELDS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK T. FIELDS, a/k/a JAMIE FIELDS,

a/k/a JAMIE C. FIELDS, a/k/a MARK C.

FIELDS, a/k/a MARK JENNINGS, a/k/a

MARK T. LEWIS, a/k/a TROY LEWIS,

Defendant-Appellant.

_________________________________________________

December 18, 2013

Submitted November 18, 2013 - Decided

Before Judges Parrillo and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 10-12-2131 and 11-01-0155.

Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Tracey A. Agnew, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Mark T. Fields appeals from the September 30, 2011 final judgment of conviction1 entered after his negotiated guilty plea to third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, and third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). On appeal, he presents the following arguments:

point one

the judge erred in denying the motion to suppress because the police lacked probable cause to arrest or a reasonable, articulable suspicion to believe that the defendant was armed and dangerous, so that the warrantless searches of defendant's pockets violated his fourth amendment rights.

a. neither search can be justified as one incident to an arrest.

b. neither search can be justified as part of an investigative stop.

point two

the parole bar imposed on the defendant should be removed or the matter should be remanded for reconsideration of the sentence.

We have considered these arguments and affirm the denial of defendant's motion to suppress substantially for the reasons stated by Judge Joseph V. Isabella in his comprehensive written opinion of June 9, 2011. We also reject defendant's challenge to his sentence.

According to the State's proofs at the suppression hearing, Jersey City police officers Dennis Winters and Keith O'Brien were on patrol on September 11, 2010, in plainclothes in an unmarked vehicle. At 11:15 a.m., they observed defendant standing on the corner of Bergen and Kearney Avenues. They pulled up to the crosswalk and observed defendant examining several objects in his hand. From a distance of approximately fifteen to twenty feet, Winters, who was driving, recognized the objects as "consistent with the size and shape of heroin packaging." O'Brien was in the passenger seat and only five to ten feet from defendant, when he observed defendant holding what he recognized as the distinct appearance of heroin "packaged in bundles with rubber bands wrapped around it."

Defendant was about to enter the crosswalk but when he recognized the officers, he abruptly did an "about face," put the objects he was holding into his right front pants pocket, and walked away in the opposite direction. Winters and O'Brien turned onto Bergen and followed defendant for a short distance before stopping him. They identified themselves as police officers and O'Brien patted defendant down and felt something in his right front pants pocket. O'Brien removed seventy glassine envelopes containing heroin and more than $1000 in cash from that pocket. Defendant was then arrested.

On September 18, 2010, Winters and O'Brien were on patrol with Officer Rob Baker. While stopped at a traffic light, O'Brien recognized defendant, who was walking westbound on Union Street toward Bergen Avenue, just a few blocks from where Winters and O'Brien had arrested him seven days earlier. O'Brien observed defendant holding what he described as a "brick" of what appeared to be heroin. O'Brien explained that a brick of heroin is a package containing fifty glassine bags of the drug. As the covering on the brick was ripped, O'Brien could see that it appeared to contain about half that amount. When the police first saw him, defendant appeared to be counting the bags. He then placed the package in his rear pocket and made a call with a cell phone. The police stopped him and, after another pat-down, recovered twenty-three glassine bags of heroin from his rear pocket.

The evidence found credible by Judge Isabella established that

the Defendant was observed by Officer Winters and Officer Baker on separate occasions examining small, distinct objects with enough clarity to raise a "well grounded suspicion," based on the officer[s'] training and experience, that the Defendant was in possession of CDS heroin. Accordingly, because the officers had a "well grounded suspicion" that the Defendant was committing a crime, they had probable cause to undertake an arrest of the Defendant.

In reviewing a motion to suppress, 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). We also defer "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." Id. at 244.

On both occasions, the officers were in such close proximity to defendant that their observations of the packages he was holding, informed by their training and experience in the area of narcotics, provided a well-grounded suspicion that defendant was in possession of a controlled substance. On September 11, defendant's suspicious behavior in changing his direction and walking away from the officers as soon as he recognized them reinforced their conclusion.

Judge Isabella's findings are supported by sufficient credible evidence in the record and we are satisfied that defendant's motion to suppress was appropriately denied.

Defendant next challenges the imposition of a three-year period of parole ineligibility on the school-zone conviction. He argues that the sentencing judge "mistakenly [believed] he had no discretion in the matter, [and] failed even to consider whether the parole bar was appropriate in this case." We find nothing in the record to support this claim.

At the outset, we note that defendant's plea agreement provides for a five-year sentence with three years parole ineligibility on the school zone conviction. Moreover, at sentencing, his counsel argued that the court sentence defendant consistent with the plea agreement:

I would ask, Judge, that Your Honor sentence him to five years with a three [year] mandatory minimum understanding that that would be the lowest that the Court could go . . . .

The State was seeking to have the two five-year terms run consecutively; defendant's counsel was understandably focused on advocating for concurrent sentences. Judge Isabella granted defendant's request for concurrent sentences and provided sufficient reasons to support the sentence imposed:

I'm exceptionally familiar with the facts of this case. We had a long motion to suppress. I took his plea. I reviewed the presentence investigation report. I'm familiar with his criminal background.

. . . .

If you look at his criminal record, he's got multiple aliases, multiple Social Security numbers. He is quite simply a drug dealer. He's got 17 arrests. He did 40 months in Federal prison. He's been in State prison before for extended periods of time. This is his seventh and eighth indictable conviction. He's only 34 years old. He's spent a good part of his adult life in prison. I don't doubt for a second when he gets out, he is going to reoffend and go back again.

Aggravating factors 3, 6 and 9 apply. I don't find any mitigating factors. There being no mitigating factors, I find the aggravating factors due to a preponderance. I will abide by the plea agreement . . . .

There was no abuse of discretion in the court's imposition of a mandatory minimum term on the school-zone conviction, which was consistent with the sentence defendant bargained for in the plea agreement.

1 Defendant is actually appealing from the June 9, 2011 decision denying his motion to suppress. Apparently, no order was entered formally denying defendant's motion. Therefore, we will view the denial of the motion to suppress together with the judgment of conviction as comprising the "judgment, decision, action . . . appealed from[.]" See R. 2:5-1(f)(3)(A).