STATE OF NEW JERSEY v. DONTAYE TAYLOR

NOT FOR PUBLICATION WITHOUT THE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.

DONTAYE TAYLOR, a/k/a DAFIQUE

TAYLOR, DANTE W. TAYLOR, DANTAYE

W. TAYLOR,

Defendant-Appellant.

____________________________________

September 3, 2013

Submitted August 28, 2013 Decided

Before Judges Waugh and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-11-2559.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/ ActingChief AssistantProsecutor, of counsel and on the brief).

PER CURIAM

Defendant Dontaye Taylor appeals his conviction, following his entry of a guilty plea, for possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1). The issue on appeal is whether the motion judge erred in denying Taylor's motion to suppress evidence seized at the time of his arrest. We affirm.

On September 8, 2010, Atlantic City Detective Sergeant James Sarkos and other officers conducted a surveillance of the Rodeway Inn. They did so on the basis of a tip from a confidential informant that drugs were being distributed at that location, and information from a second informant that the driver of a white Ford Expedition was selling cocaine in Atlantic City. Sarkos parked his unmarked police car in an adjacent parking lot, from which he testified he was able to observe the Inn's parking lot through a chain-link fence while seated in his vehicle.

According to Sarkos, he observed a white Ford Expedition enter the Inn's parking lot at approximately 9:45 p.m. He then observed a white male approach the driver's side of the vehicle, hand money to the driver, and receive a small object from the driver. The man put the object in his pocket and walked away. Based on his training and experience, Sarkos believed that he had witnessed a drug transaction.

Sarkos testified that he did not assign anyone to follow and arrest the man who approached the Expedition, but drove with the other officers to follow that vehicle. After it stopped on Mansion Avenue, Sarkos and the other detectives approached the vehicle. One of the officers ordered Taylor, who was the driver, to get out of the Expedition. Taylor's wife, Ashleen Taylor, and three children were also inside.

Sarkos searched Taylor, whom he considered to be in custody at the time. In Taylor's left pants pocket, Sarkos found a bag containing two smaller bags, both of which in turn contained what was later found to be cocaine. He also found $2030 in currency.

Taylor was the subject of a three-count indictment in November. He subsequently moved to suppress the drugs and currency seized when he was searched by Sarkos. The motion judge heard testimony on July 20 and September 14, 2011. Sarkos testified for the State. James G. Brennenstuhl, Sr., an investigator, and Ashleen Taylor were called by the defense. Brennenstuhl testified about his examination and measurement of the Inn's parking lot and the location of the surveillance vehicle, as well as the line of sight between the two. Ashleen Taylor testified that she and her family were in the Inn parking lot because they were thinking about staying at the motel that night. She also testified that nobody approached the Expedition or spoke with Taylor while they were at the parking lot.

The judge issued an oral decision following the second day of the plenary hearing. He explained his reasons for denying the motion to dismiss. Taylor accepted a plea agreement and pled guilty to the first count of the indictment on October 28. He was sentenced to incarceration for four years on January 27, 2012. The currency seized at the time of his arrest was ordered forfeited. This appeal followed.

On appeal, Taylor presents the following argument:

THE MOTION [JUDGE] ERRED IN DENYING THE SUPPRESSION MOTION BECAUSE THE COURT ESSENTIALLY PRESUMED THE STATE'S VERSION OF THE FACTS TO BE CORRECT AND IMPROPERLY PLACED ON THE DEFENDANT A BURDEN OF UNDERMINING THE STATE'S TESTIMONY.

Having reviewed the arguments raised on appeal in light of the record before us and the applicable law, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:

[A]n appellate court reviewing a motion to suppress 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, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).

 
An appellate court "should 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." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

[State v. Elders, 192 N.J. 224, 243-44 (2007).]1

Based upon our review of the record, we see no basis to credit Taylor's argument that the motion judge "presumed" that Sarkos, the State's witness, was truthful or that he placed a burden on Taylor to undermine Sarkos' version of the events. At the beginning of his oral opinion, the judge was quite clear that the State had the burden of proof.

In this warrantless search, the burden we all recognize is on the State to persuade the Court by a preponderance of the evidence that the search falls within a recognized exception to the warrant requirement. Of course, this is a fact-sensitive determination in the first place, and each individual case has to be decided on the totality of the facts and circumstances as they present in that case.

He did not find Ashleen Taylor's testimony credible for reasons he explained:

Speaking with reference to Ms. Taylor first, . . . she comes across -- comes with, rather, . . . very understandable . . . natural baggage of an implied or inferable bias, I suppose one might say, in favor of her husband and the father of her children. And frankly, her explanation for why the family was in the Rodeway parking lot that night is . . . really not believable. Now, . . . her lack of credibility on that point though, I want to stress, I don't think goes to support the State's case in terms of, you know, probable cause for the eventual search. Rather, I pointed out, and I make that finding with respect to that incredible explanation for why they were there . . . I make that as something of what I see as an index of the reality that . . . much of what she has to say on key factual points needs to be taken, maybe not just [with] a grain, but maybe a shaker full of salt.

Taylor offered Brennenstuhl's testimony in an effort to undermine Sarkos' credibility by suggesting that he had not had a clear enough line of sight to have made the observations to which he testified. While finding Brennenstuhl credible, the judge did not find his testimony persuasive as to what Sarkos could have seen in the context of the applicable burden of proof.

With respect to the investigator, there's no basis -- I have none, no basis on which to question the credibility of his testimony, but what makes his contribution for me not so compelling is that it's based on estimates and comparisons that were taken almost a year after the event in question, during summer season and post-Labor Day. And . . . if it's going to be helpful to my ability to determine the ultimate facts, the investigator's testimony has to have me assume that the officer's testimony was intended to describe with absolute precision just where the cars were located on the night in question. You know, a foot or two here, a foot or two there, could make all the difference in whether there was a line of sight. It was a Wednesday night. It was almost 10:00 at night. It was after Labor Day. And it's safe to say, I think, that the parking lot . . . was not likely full. And I think it's also safe to say the officer wouldn't have picked out a surveillance spot where he couldn't see. So although, you know, I have no basis and no reason to question . . . [a]ctually, I thought the investigator was a very good witness, and I'm sure his testimony as to the facts and his observations, and was truthful, but simply, in the circumstances, I don't think was enough to undermine the substance of the police testimony about what the officer saw that night. And in that vein, I think it's important to recall that the standard here . . . is not obviously a trial. The standard here is not reasonable doubt. Who knows, maybe with that testimony one could raise -- could argue that there was enough to create reasonable doubt, but that's not the standard. But the standard is a preponderance of the evidence, and essentially what I have to be able to conclude, and what I do conclude is, that on balance the officer's version of the events is more likely true than not true.

Clearly, the judge concluded that Brennenstuhl's testimony affected his view of Sarkos' credibility to the extent that, had the higher, beyond-a-reasonable-doubt standard been applicable, the judge might have reached a different result. We do not find that statement by the judge at all indicative of a shift in the burden of proof. Instead, it reflects the judge's careful weighing of the evidence and application of the appropriate burden of proof. Based upon our reading of the judge's decision as a whole, we find no indication that he started with a presumption that Sarkos' testimony was truthful.

We are satisfied that the record of the plenary hearing amply supports the judge's credibility findings and his findings of fact. Consequently, we affirm the denial of the motion to suppress and Taylor's subsequent conviction based on his guilty plea.

Affirmed.

1 State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2011), outlines a different standard for cases involving videos of police interrogations. Because there were no videos in this case, that standard is not applicable.