STATE OF NEW JERSEY v. TYRONE L. TRUESDALE

NOT FOR PUBLICATION WITHOUT THE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.

TYRONE L. TRUESDALE,

a/k/a STEPHAN KING, TYRONE

PHILLIPS, TYRONE TRUDALE, TYRONE

L. TRUEADALE, TYRONE L. TRUEADELL,

Defendant-Appellant.

August 22, 2014

Submitted August 12, 2014 Decided

Before Judges Nugent and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-02-00175.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Jennifer M. Eugene, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress evidence of narcotics that he discarded in an alleyway upon the arrival of policeofficers whowere patrolling the area,defendant TyroneL. Truesdale pled guilty to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute on or near school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a. In accordance with the negotiated plea, the judge sentenced defendant to six years imprisonment with a three-year parole disqualifier. The remaining counts of the indictment were dismissed. Appropriate fines and penalties were also assessed. Defendant appeals from the denial of his suppression motion, and challenges his sentence as manifestly excessive. Having reviewed these arguments in light of the facts and applicable law, we affirm.

I.

We discern the following facts from the testimony at the suppression hearing. On November 20, 2009, Detectives Frederick Bender, Aaron Bernstein, and Elijah Ramos, all members of the Trenton Anti-Crime Unit, were patrolling the North Trenton area in a white undercover van that, according to Bender, "look[ed] like a painter truck." Bender testified that at around nine p.m. they decided to patrol the area of 30-40 Grant Avenue, after previously receiving a number of citizen complaints about drug activity in that location. Bender described this as a "high drug trafficking area," where arrests for CDS offenses and the seizure of currency related thereto had occurred in the past.

While patrolling, the officers saw an individual looking down an alleyway separating homes located at 36 and 38 Grant Avenue. Upon pulling their patrol vehicle over to the curb, they were able to see down the alley, where they observed three more individuals. Defendant was facing the officers, and Bender observed that in his left hand he was holding a clear plastic bag containing a light colored substance that he appeared to be attempting to open. Upon noting the officers' presence, the men proceeded out to the sidewalk area between the two residences. While doing so, defendant clenched his left hand shut and extended it out behind an addition to 38 Grant Avenue where Bender was unable to observe it. After retracting his hand, Bender noted that defendant was no longer holding the object.

Believing that they had interrupted a drug transaction, the detectives exited their vehicle. While the other detectives approached and detained the four men, Bender went "to further investigate and see what [defendant] put on the side of the house." He testified:

Well, as soon as [I] came to the addition part of the house of 38, I looked down about waist high, right where I saw his hand, there is a table, a folded up white table was there, and on top of that I located CDS crack cocaine in the clear plastic bag.

Defendant was arrested, and a search incident thereto revealed $193 in currency. One of the other men was arrested on an outstanding warrant, while the remaining two individuals were released.

Two defense witnesses testified at the suppression hearing. Both men, friends of defendant, testified that they recognized the white van as a police vehicle, that they were merely conversing when the police arrived, that none of them, including defendant, was in the alley, and that they never observed any drugs.

Ultimately, the motion judge accepted Bender's testimony, finding it credible based on "his demeanor and the details that he gave and the certainty in his details." On the other hand, noting discrepancies in the testimony of the two defense witnesses, the motion judge found them incredible "because they don't even match up themselves with each other as to what exactly went down on that particular day." The motion judge concluded that the State met its burden of proof regarding recovery of the drugs, determining that defendant had abandoned them when he dropped them on the table in the alley between the two residences as he departed.

On appeal, defendant presents the following issues for our consideration:

POINT I

THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE BAG OF COCAINE ALLEGEDLY FOUND BEHIND AN ABUTMENT TO MR. TRUESDALE'S HOME VIOLATED HIS REASONABLE EXPECTATION OF PRIVACY. (Not raised below.)

POINT II

THE SENTENCE OF SIX YEARS IN PRISON WITH A 36-MONTH PERIOD OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE.

We do not consider these arguments persuasive, and accordingly, we affirm.

II.

Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J.1, 15 (2009). We must "uphold the factual findings underlying the trial court's decision so long as [they] are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J.224, 243 (2007) (citation and internal quotation marks omitted); State v. Diaz-Bridges, 208 N.J.544, 565 (2011). Furthermore, particular deference should be given "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." State v. Johnson, 42 N.J.146, 161 (1964) (citation omitted); State v. Davila, 203 N.J.97, 109-10 (2010). Therefore, a trial court's findings should not be disturbed unless they are so clearly mistaken "that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162 (citations omitted). By the same token, we owe no special deference to any legal conclusions reached from the established facts. State v. Brown, 118 N.J. 595, 604 (1990). If the trial court acts under a misconception of the applicable law, we need not defer to its ruling. The trial court's application of the law is subject to plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect the State's citizens against "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, 7. "A seizure occurs if, 'in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" State v. Sloane, 193 N.J.423, 429 (2008) (alteration in original) (quoting State v. Stovall, 170 N.J. 346, 355 (2002)).

Law enforcement officers violate neither the federal nor the state constitution when they conduct a field inquiry "'without grounds for suspicion.'" State v. Rodriguez, 172 N.J.117, 126 (2002) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)). If the officers do not prohibit an individual's right to move, the inquiry does not amount to detention. State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "'The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" Ibid. (quoting Maryland, supra, 167 N.J. at 483).

Unlike a field inquiry, "an investigatory stop, sometimes referred to as a Terry1 stop, is valid 'if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Ibid. (quoting Nishina, supra, 175 N.J. at 511) (internal quotation marks and citation omitted). The suspicion necessary to conduct a lawful Terry stop "need not rise to the 'probable cause necessary to justify an arrest.'" Ibid. (quoting Nishina, supra, 175 N.J. at 511).

When evaluating whether a police officer had a reasonable suspicion that criminal activity had taken place or was about to take place, a court must "ascribe sufficient weight to the officer's knowledge and experience and to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Arthur, 149 N.J. 1, 10-11 (1997). "[S]imply because a defendant's actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt." Id. at 11 (citations omitted).

Defendant argues, for the first time on appeal, that the bag containing cocaine was within the curtilage of his apartment and that the police had to unlawfully intrude into that protected space to view and seize it. Initially, we note that the facts upon which defendant attempts to frame such argument appear to lack competent evidential support in the record. See State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999) ("[W]e may only consider whether the motion to suppress was properly decided based on the evidence presented at that time") (citation omitted). In any event, we find defendant's argument unavailing.

Here, the detectives were patrolling a high-crime, high drug area. Additionally, they had received reports of recent drug activity in the area where the four men were observed. The police had not even exited their vehicle when they saw defendant in the alleyway attempting to open a clear plastic bag containing a light-colored substance that he held in his hand. Upon observing the undercover police vehicle, the men then exited the alley toward the sidewalk. While doing so, defendant discarded the bag which Bender believed contained narcotics. This confluence of facts provided the detectives, who had extensive narcotics experience, with sufficient reasonable suspicion to justify the investigatory stop.

We next consider whether the plastic bag and its contents were lawfully seized. In Gibson, supra, 318 N.J. Super. at 5, police detectives were driving through a "known narcotics area" in an unmarked police vehicle when they observed defendant Gibson standing in a driveway. As the unmarked police car approached, defendant walked down the driveway "towards the street," "looked at the vehicle" and then "turned around and walked back up the driveway." Ibid. The police drove their vehicle into the driveway, and, "prior to stopping," observed defendant "drop an item from his left hand which fell onto the driveway." Ibid. After exiting his vehicle and questioning defendant, a detective walked to the area where he observed defendant drop the item and, with the aid of a flashlight, retrieved the drug evidence in question. Id. at 6.

Analogous to the present case, Gibson argued that the driveway was a "curtilage" to his residence and that, in any event, he had a reasonable expectation of privacy from unlawful police intrusion on the driveway of the home where he actually lived. Id. at 9. In rejecting that argument, we held:

Here, defendant's movement about the driveway, whether it was owned by him, his mother or any other person, was within the public view and observed from the public thoroughfare. Although the driveway was close to the house, the fence along the front of the house did not prevent entrance through the normal and expected use of the driveway, and the driveway was clearly observable from the street. Accordingly, defendant could have no reasonable expectation of privacy in the driveway. Property is abandoned when one voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search. The trial judge's finding that defendant abandoned the property he dropped on the driveway is supported by sufficient credible evidence in the record. Moreover, the use of a flashlight[2] does not transform an otherwise reasonable observation into an unreasonable search within the meaning of the Fourth Amendment, or under the New Jersey constitution.

[Id. at 10-11 (internal citations and quotation marks omitted).]

Applying these principles, and considering the "totality of the circumstances," State v. Jones, 179 N.J. 377, 389 (2004) (citation and internal quotation marks omitted), we conclude that the officers' actions here were constitutionally permissible and the motion to suppress was properly denied.

III.

Defendant's argument that his sentence was excessive lacks sufficient merit to warrant extensive discussion in a written opinion. SeeR.2:11-3e(2). Defendant received precisely the sentence he bargained for in his plea agreement. In finding aggravating factors three, six and nine, N.J.S.A.2C:44-1a(3), (6), and (9) defendant posed a risk of reoffending; the extent of his prior criminal record and the seriousness of his offenses; and the need to deter the sentencing judge3 appropriately relied on defendant's significant criminal record, including a prior drug distribution conviction that rendered him extended term eligible. N.J.S.A.2C:43-6f.

The court also appropriately rejected defendant's argument that mitigating factors eleven and twelve applied. N.J.S.A.2C:44-1b(11) ("imprisonment . . . would entail excessive hardship to himself or his dependents"), and -1b(12) ("the willingness of the defendant to cooperate with law enforcement authorities"). In sum, we are satisfied that the judge's findings of aggravating and mitigating factors were supported by the record, the sentence complied with the sentencing guidelines of the Code of Criminal Justice, and the sentence was not manifestly excessive nor a mistaken exercise of discretion. SeeState v. Ghertler, 114 N.J.383, 387-88 (1989); State v. Roth, 95 N.J.334, 363-65 (1984).

Affirmed.

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

2 We note that Bender testified at the suppression hearing that there were lights on in the alleyway and that another detective was using a flashlight to further illuminate the alley.

3 The sentencing judge was not the same judge that decided the suppression motion.