STATE OF NEW JERSEY v. BRIAN O. OJENIYI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5753-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN O. OJENIYI,

Defendant-Appellant.

_________________________________

March 5, 2013

 

Submitted February 11, 2013 - Decided

 

Before Judges Sabatino, Fasciale and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment Nos. 08-10-0916 and 09-07-0616.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from his convictions for four counts of third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a); third-degree resisting arrest, N.J.S.A. 2C:29-2a; and third-degree unlawful possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). We affirm.

A jury found defendant guilty of the aggravated assault and resisting arrest charges, stemming from one indictment,1 and he pled guilty to the drug-related conviction flowing from charges in another indictment.2 The primary issue, in the latter case, is whether the judge erred by denying defendant's motion to suppress two bags of cocaine located in defendant's vehicle.

On June 1, 2008, at approximately 2:45 a.m., Trooper Lance Moorhouse participated in a special overtime driving while intoxicated (DWI) patrol of high traffic areas of a State highway. He observed defendant traveling eighty-five miles per hour in a fifty-five miles per hour zone. The trooper followed defendant and activated his vehicle's emergency lights. The trooper pulled defendant over, approached the vehicle from the passenger side door, and observed that defendant was driving three passengers.

Trooper Moorhouse detected an odor of alcohol emanating from the vehicle and asked defendant where he was coming from. Defendant responded that he and his passengers were on their way home from a bar. The trooper then asked defendant to exit the vehicle, and he performed three sobriety tests, which defendant failed. Three other troopers arrived at the scene while defendant performed the sobriety tests, but two of the three left shortly thereafter. Sergeant Steve McNally remained at the scene with Trooper Moorhouse, defendant, and the three passengers. Approximately fifty-five vehicles passed the scene during the stop.

Trooper Moorhouse arrested defendant, read him his Miranda3 warnings, and charged him with DWI and various traffic violations. The three passengers admitted that they had been drinking and were unable to drive defendant's vehicle. The trooper then arranged to transport the passengers to police headquarters, asked all three of them to exit the vehicle, and searched for open containers of alcohol. The trooper looked in a center console large enough to hold a container and located two clear plastic bags of cocaine. He then re-administered Miranda warnings to defendant, arrested the passengers and gave them their Miranda warnings, and he transported all four to the police station.4 The sergeant remained at the scene and waited for a tow truck to take the vehicle to a private lot.

Defendant moved to suppress the cocaine. The judge applied the automobile exception to the warrant requirement, determined that exigent circumstances existed, and denied the motion in a written decision. Thereafter, the jury found defendant guilty of the charges of resisting arrest and aggravated assault, and a month later, defendant pled guilty to one count of possession of a controlled dangerous substance. On both convictions, the judge imposed an aggregate sentence of eight years in prison with four years of parole ineligibility.5 This appeal followed.

On appeal, defendant raises the following points:

POINT I

DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

 

POINT II

DEFENDANT'S MOTION FOR CHANGE OF VENUE SHOULD HAVE BEEN GRANTED AS TO INDICTMENT NO. 08-10-0916.

 

POINT III

BECAUSE DEFENDANT WAS DENIED HIS RIGHT TO A SPEEDY SENTENCE, HIS CHARGES SHOULD BE DISMISSED OR HE SHOULD BE AWARDED EXTRA CREDITS TOWARD HIS SENTENCE.

 

POINT IV

THE SENTENCE IS EXCESSIVE.[6]

 

I.

We begin by addressing defendant's contention that the judge erred by denying his motion to suppress. He argues that there was no exigency justifying a warrantless search. We review the judge's application of the law subject to plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Using that standard, we see no error.

"Consistent with the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, police officers must obtain a warrant . . . before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)). A warrantless search is presumed invalid. State v. Pineiro, 181 N.J. 13, 19 (2004). The burden is placed on the State to prove that the search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" Ibid. (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).

Here, the State argues that the police executed a valid motor vehicle stop and located the cocaine pursuant to the automobile exception to the warrant requirement. To justify a search under the automobile exception, three factors must be satisfied: "(1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." State v. Pena-Flores, 198 N.J. 6, 28 (2009) (citing Cooke, supra, 163 N.J. at 667-68).

Here, prong one is satisfied because the stop of defendant's vehicle was unexpected. The police had probable cause to believe that the vehicle contained open containers of alcohol. We have previously stated that "the presence of an open alcohol container in an operated vehicle is itself prohibited, rendering the item contraband independent of [a] DWI prosecution." State v. Irelan, 375 N.J. Super. 100, 117 (App. Div. 2005) (citing N.J.S.A. 39:4-51a and -51b). Thus, prong two is also met. Our focus, therefore, is on the third Pena-Flores factor, whether exigent circumstances existed.

In New Jersey, exigent circumstances must "be determined on a case-by-case basis." State v. Dunlap, 185 N.J. 543, 551 (2006). No one factor is controlling; rather, courts must weigh the totality of the circumstances. Cooke, supra, 163 N.J. at 675. "In each case it is the circumstances facing the officers that tell the tale." Pena-Flores, supra, 198 N.J. at 29. Determinants of exigency are police safety and the preservation of evidence. Dunlap, supra, 185 N.J. at 551. "How the facts of the case bear on the issues of officer safety and the preservation of evidence is the fundamental inquiry." Pena-Flores, supra, 198 N.J. at 28-29 (citing Dunlap, supra, 185 N.J. at 551).

To determine whether exigent circumstances exist, we may consider the following possible factors that the Pena-Flores Court outlined:

[T]he time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

 

[Id. at 29.]

 

Here, the trooper searched the vehicle around 3:00 a.m. on a holiday weekend; traffic on the highway was heavy, including at least fifty-five cars passing the scene during the stop; defendant admitted to drinking alcohol and that he and his passengers were on their way home from a bar; defendant failed three sobriety tests; all three passengers had been drinking and were unable to drive defendant's vehicle, which required the trooper to arrange for transportation to the police station to facilitate safe rides home for them; the troopers were outnumbered four to two; the vehicle would not be in police control after it was towed; Trooper Moorhouse and Sergeant McNally were involved in a special overtime DWI patrol targeting high traffic areas on that weekend; defendant had to be transported to the station for testing before the alcohol in his blood stream dissipated; and, it was impracticable to obtain a search warrant early that morning. Under the totality of these circumstances, exigency existed justifying a warrantless search of the vehicle's interior large console.

Our fact-sensitive conclusion affirming the trial court in this close case should not be misconstrued. It should not be read to signify that exigent circumstances -- as that concept is presently conceived under our case law -- will invariably be present to authorize roadside warrantless searches for open alcohol containers within the closed compartments of all motor vehicles operated by an apparently-intoxicated driver. Nothing in Pena-Flores, supra, or in Irelan, supra, establishes such a per se entitlement. We merely hold that, based upon the multiple factors present in this case, the trial judge's finding of exigency was reasonable and consistent with the governing law. Even though a search for an open alcohol container within a car may lack the same degree of urgency as a search for a weapon or narcotics believed to be present, there are sufficient other indicia of exigency here to sustain the denial of defendant's motion to suppress. In the absence of a bright-line rule, see Pena-Flores, supra, 198 N.J. at 33-36 (continuing a totality approach); id. at 47-48 (dissenting opinion, advocating a bright-line approach), these cases arising under the automobile exception remain subject to a context-based evaluation. Within that framework of precedent, we cannot say that the motion judge strayed in his application of the multi-part standard.

 

 

II.

Defendant contends that in the jury trial involving his aggravated assault and resisting arrest charges, a change of venue was required because the victims were sheriff's officers in the same county where the case was tried. We review a judge's decision whether to change venue under an abuse of discretion standard. State v. Nelson, 173 N.J. 417, 476-77 (2002). We see no abuse here.

Criminal defendants have both state and federal constitutional rights to a fair trial by an impartial jury. State v. Loftin, 191 N.J. 172, 187 (2007). Where such a trial cannot otherwise be had in a particular venue, the rules authorize a trial court to order a change of venue or to empanel a foreign jury. R. 3:14-2.7 A court's decision whether to grant either form of relief rests within its sound discretion. State v. Nelson, 173 N.J. 417, 476-77 (2002).

The inquiry pertinent to that decision is "whether an impartial jury could be obtained from among the citizens of the county or whether they are so aroused that they would not be qualified to sit as a jury to try the case." State v. Wise, 19 N.J. 59, 73 (1955). The Supreme Court stated that "[t]he evidence submitted, to be controlling, must be clear and convincing proof that a fair and impartial trial cannot be had before a jury of the county in which the indictment was found." Id. at 73-74.

Here, the judge determined that defendant had not established by clear and convincing proofs that a fair and impartial trial cannot be had, relying on the standard enunciated in Wise, supra.8 He expressed confidence that the jury could be fair and impartial, and defense counsel did not object. There is no hint that the jury was unable to decide the case dispassionately and follow the final charge.

III.

Defendant argues that the court violated his right to imposing a speedy sentence. He asserts that the judge erred, therefore, by failing to dismiss both indictments. Much of the sentencing delay was caused by defense counsel's unavailability, and defendant was not prejudiced because he received 705 days of jail credit for time served.

On June 4, 2010, the jury convicted defendant on the charges of aggravated assault and resisting. The judge then scheduled sentencing for July 23, 2010, pending preparation of a pre-sentence report. On July 23, 2010, defendant argued that his convictions constituted changed circumstances permitting him to plead guilty to the drug charges after the plea cut-off date, and he requested that he be sentenced in both indictments simultaneously. The judge permitted him to plead guilty on the drug charges and re-scheduled sentencing because an updated pre-sentence report was necessary. The new report was prepared mid-September 2010, but defendant was not sentenced until May 18, 2011.

The judge denied defendant's motion to dismiss the indictments and concluded that the delay was due "in large part" to defense counsel's unavailability from September 2010 to April 2011. He also concluded that defendant's drug-related guilty plea, entered after the plea cut-off date, delayed the sentencing.

Finally, due to the sentencing delay, the judge also awarded thirteen days of "judicial credit," based on his calculation of commutation, work, and minimum custody credits. Defendant argues that he is entitled to forty-two more days of "discretionary credit." We agree with the State that the deprivation of commutation and work credits, discretionary credit to which he was not entitled, did not deprive defendant of any due process rights. Commutation, work, and minimum custody credit must be earned by an inmate during service of a sentence. See Merola v. Dep't of Corrections, 285 N.J. Super. 501, 511 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996); N.J.S.A. 30:4-140. Such credit, however, would not reduce defendant's parole ineligibility. Buncie v. Dep't of Corrections, 382 N.J. Super. 214, 219 (App. Div. 2005), certif. denied, 186 N.J. 606 (2006). As such, commutation or work credits cannot be used to reduce defendant's sentence until he has completed at least his four-year period of parole ineligibility.

IV.

Finally, we reject defendant's contention that his sentence of eight years in prison with four years of parole ineligibility is excessive. The judge imposed the sentence after indicating that defendant qualified as a persistent offender pursuant to N.J.S.A. 2C:44-3a.

The scope of our review of a sentence is limited. Appellate review is not an opportunity for this court to substitute our judgment for that of the trial judge and to impose our view of the appropriate sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Evers, 175 N.J. 355, 386 (2003). Rather, we review a sentence within a set of guidelines that the Supreme Court established in State v. Roth, 95 N.J. 334, 363-66 (1984). Within these guidelines, we can

(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.

 

[Id. at 364-65.]

 

In sentencing a defendant, a trial court must identify the relevant aggravating factors of N.J.S.A. 2C:44-1(a) and the relevant mitigating factors of N.J.S.A. 2C:44-1(b), "determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citing State v. Kruse, 105 N.J. 354 (1987)). "An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." Ibid. (citing State v. Jarbath, 114 N.J. 394, 400-01 (1989)); see Roth, supra, 95 N.J. at 364-65.

Here, the judge found that three aggravating factors were present: the risk that defendant will commit another offense, the extent of his prior record, and the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(3), (6), and (9). The judge concluded that the aggravating factors outweighed the non-existent mitigating factors. The judge properly identified the aggravating factors that were supported by competent credible evidence in the record.

We perceive no manifest injustice in the length of defendant's sentence and parole ineligibility period, as it does not shock our conscience. Bieniek, supra, 200 N.J. at 611-12; Roth, supra, 95 N.J. at 363-65.

After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

Affirmed.

1 In July 2009, a Gloucester County Grand Jury returned Indictment No. 09-07-616, charging defendant with third-degree aggravated assault on law enforcement officers, N.J.S.A. 2C:12-1b(5)(a) (Counts One through Five); second-degree attempt to disarm a law enforcement officer, N.J.S.A. 2C:12-11a (Count Six); and third-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Seven).

2 In October 2008, a Gloucester County Grand Jury returned Indictment No. 08-10-916, charging defendant with third-degree unlawful possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1) (Count One); third-degree unlawful possession of a controlled dangerous substance (cocaine) with intent to distribute, N.J.S.A. 2C:35-5b(3) (Count Two).

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 At the station, the police administered an Alcotest and determined that defendant's blood alcohol content was 0.01.

5 The judge sentenced defendant to an extended eight-year prison term with a four-year period of parole ineligibility (Count One, Indictment No. 09-07-616); four concurrent four-year prison terms; (Counts Three, Four, Five, Seven, Indictment No. 09-07-616); a concurrent three-year prison term (Count One, Indictment No. 08-10-916); and he imposed the appropriate fines and penalties.

6 We also received defendant's two-page supplemental handwritten letter brief filed on July 26, 2012.

7 Rule 3:14-2 requires a trial judge to grant a motion for a change of venue or for a foreign jury if the judge "finds that a fair and impartial trial cannot otherwise be had." The judge "must consider whether the change of location is 'necessary to overcome the realistic likelihood of prejudice resulting from pretrial publicity.'" State v. Nelson, 173 N.J. 417, 475 (2002) (quoting State v. Williams, 93 N.J. 39, 67 n.13 (1983)).

8 The Supreme Court may have modified the Wise standard of proof in Williams, supra, 93 N.J. at 67 n.13, in which it held that, "[i]f . . . the trial court determines in its sound discretion at time of trial that a change of venue is necessary to overcome the realistic likelihood of prejudice from pretrial publicity, a change of venue may be ordered. In this context, State v. Wise will no longer apply." However, the modification may only be applicable when weighing alternatives to closing a pretrial proceeding to the press and public, which was the "context" in which the modification was established. See id. at 66-67.