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November 7, 2014


Submitted July 1, 2014 Decided

Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 11-05-1113, 09-04-1225, 09-04-1264 and 11-06-1555.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).


Defendant raises two issues for our consideration in this appeal, that his suppression motion should have been granted and that his sentence was excessive. We affirm.

Defendant was charged in three Camden County indictments with multiple third-degree drug offenses, second-degree burglary while armed with a deadly weapon, third-degree theft, and other offenses. After his suppression motion was denied, defendant pled guilty pursuant to a plea agreement to two counts of third-degree possession of cocaine with intent to distribute within 1000 feet of a school zone, one count of third-degree burglary (as amended) and to an accusation charging him with one count of third-degree possession of heroin. According to the plea agreement, the prosecutor agreed to recommend extended terms of ten years with a five-year period of parole ineligibility on the school zone counts, a five-year term with two years of parole ineligibility on the burglary charge, and a three-year term of imprisonment on the heroin possession charge. The prosecutor further agreed to recommend that all sentences subject to the plea agreement be concurrent to each other but consecutive to any sentence imposed in Burlington County.

At sentencing, the court imposed a sentence upon defendant that was not merely consistent with the terms recommended by the prosecutor as part of the plea agreement but also imposed shorter terms of parole ineligibility. Defendant conceded that he is a persistent offender and did not require the State to produce the requisite two prior judgments of convictions to satisfy N.J.S.A. 2C:43-7. Nonetheless, he argues that the imposition of an extended term here was discretionary and that the trial court erred by not exercising discretion to decline to sentence him to an extended term. He argues further that the judge improperly balanced the aggravating and mitigating factors in determining his sentence. After reviewing the record in light of the applicable law, we conclude that defendant's challenge to his sentence lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant also argues that his suppression motion should have been granted because the State failed to prove that the warrantless search and seizure of him was lawful. The motion was decided based upon the following stipulated facts

On December 12, 2008, at approximately 11:46 p.m., Trooper Ryan and Trooper M. Legatie were conducting surveillance in the area of 8th and State Streets in Camden, New Jersey. Specifically, the officers were conducting surveillance of an abandoned house located at 715 8th Street. The officers were conducting their surveillance from an undisclosed location and were located inside an undercover state police vehicle. There were no visual obstructions, and there was a sufficient amount of light to identify subjects within the area. The area of 8th and State Streets has had numerous citizen complaints regarding illegal narcotic activity as well as numerous arrests related to the open air narcotics distribution practices in the area. The area is a well known and documented drug trafficking area.

While the officers were conducting surveillance, Trooper Legatie observed one black male standing in front of an abandoned house located at 715 8th Street wearing a black jacket, blue jeans, and white sneakers. The black male was later identified as Kofi Ries, hereafter defendant. Trooper Legatie next observed an unidentified white male wearing a black hooded sweatshirt, black sweatpants, and white sneakers approach defendant on foot in front of 715 8th Street. Defendant and the unidentified white male engaged in a brief conversation. The unidentified white male then handed defendant U.S. currency. Defendant accepted the U.S. currency, placed it into his left front pants pocket and walked onto the porch of 715 8th Street. Defendant then grabbed an item(s) from under a wooden board on the porch and placed it into his right front pants pocket. Defendant walked off the porch, reached into his right front pants pocket, and handed the unidentified white male an item(s). The unidentified white male then walked north on 8th Street.

Shortly thereafter, a black male, wearing a camouflage hat, blue jacket, blue jeans, and tan boots, later identified as Scott Gilbert (hereafter Gilbert), approached defendant in front of 715 8th Street. Defendant and Gilbert engaged in a brief conversation. Gilbert then handed defendant U.S. currency. Defendant accepted the U.S. currency by placing it into his left front pants pocket. He then reached into his right front pants pocket and handed an item(s) to Gilbert.

Based on his observations, training, and experience, Trooper Legatie believed he had witnessed defendant engage in two separate hand-to-hand narcotics transactions. Trooper Legatie advised additional State Police units to move into the area.

After advising assisting officers to move into the area, Trooper Ryan and Trooper Legatie approached defendant and Gilbert outside of 715 8th Street in the unmarked police car and exited the vehicle identifying themselves as State Police.

Immediately thereafter, defendant began to run across 715 8th Street into an alley. Trooper Legatie pursued defendant and eventually caught up to defendant. Defendant was placed under arrest.

A search incident to arrest of defendant yielded seven (7) grey tinted heat sealed plastic baggies filled with crack cocaine in defendant's right front pants pocket. Additionally, $451 in U.S. currency was found in defendant's left front pants pocket.

Gilbert was also arrested. A search incident to his arrest revealed two (2) grey heat sealed plastic baggies containing crack cocaine found in his right front pants pocket.

Following the arrest of defendant and Gilbert, Trooper Legatie walked onto the porch of the abandoned house located at 715 8th Street, where he had observed defendant earlier. Trooper Legatie picked up a wooden board and located one (1) large plastic baggie containing fifty-seven (57) grey heat sealed plastic baggies which were filled with crack cocaine.

The trial court noted the officers' specialized training, their awareness that the suspected transactions occurred in an area known for drug trafficking, and found the officers reasonably believed they had witnessed drug transactions. The court concluded that the officers had probable cause to arrest defendant for the observed drug transactions.

In challenging this search and seizure, defendant argues that while the police arguably had reasonable suspicion to detain defendant and Gilbert, they lacked the requisite probable cause to arrest defendant. We disagree.

"The standards for determining probable cause to arrest and probable cause to search are identical." State v. Moore, 181 N.J. 40, 45 (2004). Although the term probable cause "def[ies] scientific precision," State v. Evers, 175 N.J. 355, 381 (2003), the Supreme Court has explained, "[p]robable cause exists if at the time of the police action there is a well-grounded suspicion that a crime has been or is being committed." State v. Nishina, 175 N.J. 502, 515 (2003) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001) (internal citation and quotation marks omitted)). "It requires nothing more than 'a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Johnson, 171 N.J. 192, 214 (2002) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Assessing circumstances similar to those here, the Supreme Court held that observations made by a law enforcement officer in a high-crime area of transactions that he reasonably believed were drug transactions "supported probable cause to arrest defendant, search him, and seize the suspected drugs incident to that arrest." Moore, supra, 181 N.J. at 47. The same is true here.