STATE OF NEW JERSEY v. RAHEEM PAMPLIN

NOT FOR PUBLICATION WITHOUT THE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.

RAHEEM PAMPLIN,

Defendant-Appellant.

___________________________________________________________

September 22, 2014

Submitted August 26, 2014 Decided

Before Judges Hayden and Leone.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 07-12-4002 and 08-01-0126.

Joseph E. Krakora, Public Defender, attorney for appellant (Emily A. Kline, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Raheem Pamplin appeals his conviction and sentence, following a jury trial, on one count of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). After a review of the facts and applicable legal principles, we affirm.

The State presented the following facts at trial. On August 30, 2007, Detective Lance Garcia of the Newark Police Department Gang Unit was conducting surveillance with three other detectives from an unmarked vehicle in a high-crime area known for gang-related activity. At approximately 10:30 p.m., Garcia, while sitting in the front passenger seat of the parked vehicle using binoculars, observed defendant and his co-defendant Quadir Graham exchanging money. The men were illuminated by street lights. An unknown male then approached Graham and defendant, engaged Graham in a brief conversation, and handed him money. Graham then gave the male a clear plastic bag that he had removed from his left rear pocket, and the male departed.1 During this exchange, defendant was "standing there" and was "looking around."

Following this observation, the detectives pulled up next to defendant and Graham, exited their vehicle, announced their presence, and displayed their badges. Graham then "quickly reached in his rear pocket and tossed a plastic bag." Garcia recovered the bag, which contained four decks of what was later confirmed to be heroin. The detectives placed Graham and defendant under arrest, and a search of defendant revealed fifteen decks of what was also later confirmed as heroin. The detectives also recovered $328 from Graham and $518 from defendant.

Soon thereafter, an Essex County grand jury charged defendant with third-degree conspiracy to possess a CDS with intent to distribute, N.J.S.A. 2C:5-2, (count one); third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1), (count two); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3), (count three); and third-degree possession of CDS with intent to distribute in a school zone, N.J.S.A. 2C:35-7, (count four).

During the trial, the State moved for the admission into evidence of the decks of heroin recovered from his person. Defendant objected, arguing that the search was unconstitutional. Defendant contended that Garcia s testimony merely demonstrated that defendant and Graham exchanged money and defendant was "looking around" during the drug transaction, which was insufficient to amount to probable cause to arrest or search him. The judge admitted the evidence after noting that no pre-trial motion to suppress had been filed, stating:

Now based on what the testimony we have at this point you have to give every reasonable inference to the State. That is the State's case in chief.

You have testimony which shows that defendants were observed having some kind of conversation and exchanging money. That a supposed buyer approached Mr. Graham and made a purchase from him. And while purportedly Mr. Pamplin was looking around. It can be inferred that he was acting as the lookout at that point. He was right next to him.

And certainly [a] reasonable jury could infer that they were acting in concert. As far as that's concerned I don't see any basis for suppression at this point in time.

And as such it would be a legitimate search incident to an arrest.

At the close of the trial, the jury found defendant guilty of third degree possession of CDS, but were unable to reach a verdict on the three remaining counts.

Meanwhile, on January 11, 2008, based on a separate incident, an Essex County grand jury issued a second indictment which charged defendant with third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); and third-degree possession of CDS with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count three).

On April 13, 2009, pursuant to a plea agreement, defendant pled guilty to count two of the second indictment.2 In exchange for defendant's guilty plea, the State agreed to recommend a four-year term concurrent with any sentence imposed on the first indictment. At the same time, the trial judge, at the request of the State, dismissed the remaining counts of first indictment on which the jury hung.

On September 13, 2011, a different trial judge sentenced defendant to two concurrent four-year terms on both indictments. All remaining counts of both indictments were dismissed. The judge also ran defendant's four-year sentences concurrently to a separate sentence defendant was serving on a Bergen County indictment. The judge found aggravating factors (3) the risk of re-offense, (6) the extent of defendant's criminal record and seriousness of his offense, and (9) the need to deter. N.J.S.A. 2C:44-1(a)(3), (6), (9). The judge found no mitigating factors. N.J.S.A. 2C:44-1(b). This appeal followed.

Before us, defendant raises the following contentions for our consideration:

POINT I. THE TRIAL COURT ERRED BY DENYING PAMPLIN S MOTION TO SUPPRESS BECAUSE THE EVIDENCE OBTAINED WAS A PRODUCT OF AN ILLEGAL SEARCH.

POINT II. THE SENTENCE WAS EXCESSIVE BECAUSE THE TRIAL JUDGE FAILED TO CONSIDER APPLICABLE MITIGATING FACTORS.

Initially, defendant argues that the detectives conducted a warrantless search of him without probable cause. He contends that he "exhibited no overt criminal activity that would justify a particularized suspicion to justify a valid search," and his "mere proximity to Graham at the time of Graham's arrest does not support the probable cause necessary for the search." We disagree.

We note at the outset that defendant failed to move before trial or at trial to suppress the evidence obtained from his person. A motion to suppress evidence allegedly obtained as a result of an unlawful search and seizure must be made prior to trial. R. 3:5-7(a); R. 3:10-2(a). If a timely motion to suppress is not made, "the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained." R. 3:5-7(f). Even constitutional claims, including those arising under the Fourth Amendment, "may be waived unless properly and timely asserted." State v. Jenkins, 221 N.J. Super. 286, 292 (App. Div. 1987), certif. denied, 113 N.J. 343 (1988), cert. denied, 488 U.S. 1032, 109 S. Ct. 843, 102 L. Ed. 2d 975 (1989); see also State v. Del Fino, 100 N.J. 154, 160 (1985); State v. McKnight, 52 N.J. 35, 48 (1968).

When he failed to comply with Rule 3:5-7(a) and Rule 3:10-2(a), defendant waived his right to object to the admission of the evidence in question on Fourth Amendment grounds. By failing to file a formal motion, defendant deprived the State of the chance to present evidence specifically to establish the validity of the search and seizure. See State v. McLendon, 331 N.J. Super. 104, 109 (App. Div. 2000); State v. Gora, 148 N.J. Super. 582, 592 (App. Div.), certif. denied, 74 N.J. 275 (1977).

That said, even if we consider defendant s suppression claim, defendant's argument lacks merit. "We review the trial court's evidentiary ruling under a deferential standard; it should be upheld absent a showing of an abuse of discretion, [i.e.], there has been a clear error of judgment." State v. J.A.C., 210 N.J. 281, 295 (2012) (internal quotation marks and citations omitted). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J. 138, 147 (2001) (internal quotation marks and citations omitted). On the other hand, as appellate review of the trial court's legal conclusions is plenary, we need not defer to the trial court's decisions when a question of law is at stake. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

When we review the trial judge's decision pursuant to a motion to suppress, we afford similar deference. State v. Robinson, 200 N.J. 1, 15 (2009). We uphold the judge's factual findings if "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks and citations omitted). In contrast, we do not defer to the trial court's interpretation of purely legal issues. State v. Shaw, 213 N.J. 398, 411 (2012).

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV. "Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004). The State bears the burden of establishing that a 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)).

One such narrowly-drawn exception to the warrant requirement is the search incident to arrest. State v. Minitee, 210 N.J. 307, 318 (2012). "When the police place an individual under arrest, they may search his person and the area within his immediate grasp[.]" ibid. (citing Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969)), including any "container found in the arrestee's possession." State v. Oyenusi, 387 N.J. Super. 146, 154 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007).

"The arrest must precede the search." State v. Pena-Flores, 198 N.J. 6, 19 (2009) (citing Smith v. Ohio, 494 U.S. 541, 543, 110 S. Ct. 1288, 1290, 108 L. Ed. 2d 464, 467 (1990)). "So long as there is probable cause to arrest, the ensuing search is valid even if there is no particular reason to believe that it will reveal evidence, contraband, or weapons." Ibid. (citing New York v. Belton, 453 U.S. 454, 461, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768, 775-76 (1981)). "The only limitation upon a search of an arrestee's person and the area within his immediate control is that the search may not be 'remote in time or place from the arrest[.]'" Oyenusi, supra, 387 N.J. Super. at 154 (quoting United States v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476, 2485, 53 L. Ed. 2d 538, 550-51 (1977)).

Although, probable cause "eludes precise definition," Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000), the Supreme Court previously described it as follows:

The probable cause standard is a well-grounded suspicion that a crime has been or is being committed. Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.

[State v. O'Neal, 190 N.J. 601, 612 (2007) (alterations in original) (quoting State v. Moore, 181 N.J. 40, 45-46 (2004)).]

"Probable cause means less than legal evidence necessary to convict though more than mere naked suspicion." State v. Smith, 212 N.J. 365, 388 (2012) (internal quotation marks and citations omitted), cert. denied, __ U.S. __, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). The court must take into account the totality of the circumstances when determining whether probable cause existed at the time of the police action. O'Neal, supra, 190 N.J. at 612.

Here, defendant's arrest was supported by a well-grounded suspicion that a crime had been or was being committed. See ibid. The detectives observed defendant and Graham in a high-crime area at night engaging in conversation and exchanging money. They then saw what appeared to be a hand-to-hand drug transaction between Graham and an unknown male. During the exchange, defendant remained in close proximity to Graham and was looking around. As the trial judge observed, a logical inference was that defendant was acting as a lookout for Graham at that point. Then, when approached, Graham discarded a bag that contained what appeared to be heroin. Under the totality of the circumstances, probable cause existed to arrest not only Graham, but also defendant. See ibid.

Once defendant was lawfully arrested, the detectives' search of his person was entirely permissible. See Pena-Flores, supra, 198 N.J. at 19. The search occurred immediately after the arrest and the drugs were found on defendant's person; hence, the search did not exceed the bounds permitted under the search incident to arrest exception. See Minitee, supra, 210 N.J. at 318; see also Oyenusi, supra, 387 N.J. Super. at 154.

Defendant next argues that his sentence was excessive and should be reduced. He maintains that the trial judge "erred in failing to recognize at least three mitigating factors[.]" Specifically, defendant contends that the trial judge should have found that his conduct did not cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(1), and that he did not contemplate that his conduct would result in or threaten serious harm, because he was only in possession of a small quantity of CDS, N.J.S.A. 2C:44-1(b)(2). Defendant also asserts the trial judge should have given him credit for cooperating with law enforcement authorities, N.J.S.A. 2C:44-1(b)(12), because he was willing to plead guilty on the first indictment but proceeded to trial only because of his co-defendant. We disagree.

N.J.S.A. 2C:43-6(a) sets forth the maximum and minimum range of ordinary sentences for the different degrees of crime. State v. Roth, 95 N.J. 334, 359 (1984). The trial court must then "undertake[] an examination and weighing of the aggravating and mitigating factors listed in [N.J.S.A.] 2C:44-1(a) and (b)." Ibid. In establishing an appropriate sentence, "the court must decide whether there is a preponderance of aggravating or mitigating factors." State v. Kruse, 105 N.J. 354, 359 (1987).

Our role in reviewing a trial judge's sentence is a limited one. We "should not substitute [our] judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989); see also State v. Kirk, 145 N.J. 159, 175 (1996). When the court has "adhered to the sentencing principles set forth in the Code and defined in our case law," and its findings of aggravating and mitigating factors are supported by the record, "its discretion should be immune from second-guessing." State v. Bieniek, 200 N.J. 601, 612 (2010). We will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. Roth, supra, 95 N.J. at 364-65.

First, given the quantities of drugs found in defendant's possession, the argument that mitigating factors one and two should have been found has no basis in the law. This case is distinguishable from State v. Cullen, 351 N.J. Super. 505, 511 (App. Div. 2002), where defendant possessed one baggie containing .33 grams of cocaine. In this case, the police seized a total of fifteen decks of heroin from defendant's person. Moreover, defendant's knowledge and understanding of the serious harm society perceives to be caused by drugs and their distribution can be attributed to him in light of his prior extensive criminal record, which includes numerous CDS-related adjudications and convictions. See also State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994) (noting the inherent harm in drug distribution).

Secondly, defendant's willingness to enter a plea as to his own culpability, without more, such as incriminating others, testifying against co-defendants, or aiding in an investigation, does not rise to the level of cooperation contemplated by N.J.S.A. 2C:44-1(b)(12). See State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008); see also State v. Dalziel, 182 N.J. 494, 498, 505-06 (2005) (plea agreement included testimony against co-defendant). Thus, this mitigating factor did not apply to defendant.

Since the mitigating factors claimed by defendant are not supported by the record, the trial judge did not err in failing to consider them. We decline to disturb the sentence set by the trial judge as we perceive no abuse of discretion, and the sentence does not shock our conscience. See Gardner, supra, 113 N.J. at 516; see also Roth, supra, 95 N.J. at 364-65.

Affirmed.

1 The unknown male was not pursued or apprehended.

2 Although defendant s notice of appeal lists the second indictment, number 08-01-0126, he raises no legal arguments regarding the second conviction or sentence.