STATE OF NEW JERSEY v. ANTHONY S. GRANATA

NOT FOR PUBLICATION WITHOUT THE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.

ANTHONY S. GRANATA, a/k/a

TONY GRANATA, a/k/a ANTHONY S.

GRANATA, JR., a/k/a ANTHONY S.

GRANATO, a/k/a ANTHONY GRANATO,

a/k/a ANTHONY SAL GRANATA,

a/k/a ANTHONY S. CAPUTO, a/k/a

ANTHONY S. PANCONE, a/k/a

ANTHONY M. PANCONE, a/k/a

ANTHONY S. BEUCCI, a/k/a

ANTHONY NAVARRO, a/k/a TONY PANCONE,

Defendant-Appellant.

___________________________________

September 8, 2014

Argued December 11, 2013 Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment

No. 10-05-0698.

Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the briefs).

Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Kmieciak, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

A jury found defendant Anthony Granata guilty of two counts of third-degree possession of a controlled dangerous substance (cocaine and marijuana) with intent to distribute near or on school property, N.J.S.A. 2C:35-7 (Counts 1 and 2); two counts of second-degree possession of a controlled dangerous substance (cocaine and marijuana) with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (Counts 3 and 4); and second-degree possession of a firearm in the commission of a drug offense, N.J.S.A. 2C:39-4.1 (Count 5). Defendant appeals his conviction and sentence. We affirm.

In January 2010, Woodbridge police received anonymous reports from two concerned citizens that drugs were being sold from defendant's home. The following month, a reliable confidential informant passed along that he had been present while defendant distributed cocaine. A short time later, detectives used the informant to make a controlled buy of cocaine from defendant. That same week, the informant reported that defendant had called to offer to sell him more cocaine. The informant also advised that defendant "was currently in possession of two handguns."

Following issuance of a no-knock warrant on February 21, Woodbridge police entered defendant's home at about 3 a.m. and a dozen officers converged on the premises. Officers found defendant in his pajamas in the living room and held him there while other officers fanned out throughout the rest of the house. The police found, in various locations throughout the house, small quantities of marijuana and cocaine, as well as bags of unidentified white powder, not cocaine, a grinder, three digital scales, a plethora of plastic sandwich bags and a few hundred dollars. The police also found a loaded handgun inside a wooden box in a dresser at the back of a closet upstairs.

Defendant was not the only person in the house at the time of the search. The ranking officer, Sergeant Murphy, found another man at the top of the stairs shortly after the police entered defendant's home. Murphy ordered the man onto the floor to allow the other officers to pass by on their way to search the second floor. Murphy then turned the man over to a patrol officer. Neither Murphy nor the other two officers participating in the raid who testified at trial ever learned anything else about the man. Detective Villegas, the officer who secured the search warrant, did not even learn there was anyone else in the house until several months later. There is no mention of the man in the police report, and no evidence that the police ascertained his identity, checked for outstanding warrants and either arrested or released him as would be standard operating procedure.

At trial, defendant, who did not testify, suggested that the presence of this unknown man raised reasonable doubt as to defendant's ownership of the gun found on the second floor. Responding to this argument in summation, the prosecutor stated:

Now, about this other person in the house. First of all, let's get it out of our head this person was in one of the bedrooms upstairs. He was already at the top of the stairs when police officers came through the door. Didn't have time to get anywhere. He could have been upstairs for anything, using the bathroom, using drugs, when the police came through the door or before the police came through the door. Ask yourself this. How would you feel if you had the facts of this case in front of you, all the identical facts? The police knew before they went to the house that this house belonged to Anthony Granata. They found cocaine, imitation cocaine in his kitchen cabinet. They found hidden in the ceiling, in a kitchen pantry two scales and a grinder with residue in it and then upstairs in a back bedroom in a hole in the closet they found marijuana, baggies and a scale and his picture ID in his mail in the kitchen as well as in the master bedroom they find a handgun in a dresser drawer. Now, I imagine that they charged this second man at the top of the stairs and ask how would you feel about that when you sit here today. You would be telling yourself this is dirty. Woodbridge, they picked this guy up because they wanted him to cooperate and the prosecution had no evidence on him. That house was his and everything they found that was illegal was hidden and they still charged the man because he had the misfortune to be present when they were there and searched the house.

The officers told you that when they find other people in the house the detectives turn them over to the patrol unit and they're run for warrants and if it's decided no charges will be filed against that person they let him go. I submit that's exactly what happened in this case. It's two years later and nobody can tell us who made the decision to let him go or who checked him for warrants but I submit to you that's what happened.

The jury convicted defendant on all counts. After reviewing defendant's long-time addiction to drugs and his record, which included twenty-four arrests and ten convictions, the judge found aggravating factors three, the risk that defendant would commit another offense, six, the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, and nine, the need to deter, N.J.S.A. 2C:44-1a(3), (6) and (9). He also found mitigating factor eleven, that imprisonment would entail excessive hardship to him or his dependents, N.J.S.A. 2C:44-1b(11).

After merging defendant's convictions for distribution near or on school property with his convictions for distribution within 500 feet of public property, the judge sentenced defendant to five years, with a three-year period of parole ineligibility for second-degree distribution within 500 feet of public property (count three), and to three years, with an eighteen month period of parole ineligibility for third-degree distribution within 500 feet of public property (count four), to run concurrently. The judge sentenced defendant to five years, with a three-year period of parole ineligibility for the weapon charge (count five) to run consecutive to the other terms. Defendant's aggregate sentence was thus ten years with a six-year period of parole ineligibility.

Defendant raises the following issues with regard to his conviction and sentence:

POINT I

THE NO-KNOCK WARRANT WAS INVALID BECAUSE THERE WAS INSUFFICIENT EVIDENCE THAT [DEFENDANT] WOULD HAVE PRESENTED A DANGER TO OFFICERS IF THEY HAD BEEN REQUIRED TO KNOCK AND ANNOUNCE THEMSELVES.

POINT II

THE PROSECUTOR IMPROPERLY URGED THE JURY TO DRAW AN INFERENCE WHICH WAS NOT SUPPORTED BY THE EVIDENCE. (not raised below).

POINT III

THE TRIAL COURT IMPROPERLY ASSESSED THE AGGRAVATING AND MITIGATING FACTORS AT SENTENCING, AND THUS IMPROPERLY RULED OUT THE POSSIBILITY OF A DOWNGRADED SENTENCE UNDER N.J.S.A. 2C:44-1(f)(2). (not raised below).

Additionally, defendant raises the following point in his pro se supplemental brief:

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, WHEREFORE THE CONVICTION SHOULD BE SET ASIDE AND THE INDICTMENT MUST BE DISMISSED.

Although defendant brought a suppression motion challenging the search warrant on several grounds, he raises only the sufficiency of the State's evidence to justify a no-knock warrant on this appeal. Specifically, while conceding that there may have been corroboration of the informant's assertion that defendant was selling drugs, defendant asserts there was no corroboration of his report that defendant was in possession of two handguns. Defendant also contends there was nothing in his criminal history to support ties to organized crime or that he would be disposed toward violent confrontation with police. The State argues that the no-knock provision was amply supported by particularized concerns for officer safety, including defendant's criminal history and the information from a reliable confidential informant that defendant was in possession of two handguns.1

As the Supreme court has observed on more than one occasion in discussing exceptions to the knock and announce requirement, "the showing required to justify an unannounced entry 'is not high[.]'" State v. Jones, 179 N.J. 377, 399 (2004) (quoting State v. Johnson, 168 N.J. 608, 624 (2001)); see also Richards v. Wisconsin, 520 U.S. 385, 394-95, 117 S. Ct. 1416, 1422, 137 L. Ed. 2d 615, 624 (1997). When the police, concerned with officer safety, seek to execute a warrant without knocking and announcing their presence, the officer applying for the warrant must articulate the reasons for that concern, which may be based on the totality of the circumstances with which the officer is faced. Jones, supra, 178 N.J. at 397.

Reviewing the affidavit submitted to the municipal court, the officer based his concern on the information relayed by the confidential informant, defendant's alleged ties to organized crime, the officer's own surveillance, and defendant's long criminal history, including his arrests for assault in 1981, carrying prohibited weapons in 1983, possession of certain weapons in 1993, robbery in 1993, assault in 2008, and drug offenses in 2009. The officer noted that defendant had three felony convictions, one conditional discharge and three pending charges.

Judge Nieves reviewed the affidavit and noted his findings on the record. The judge explained that he somewhat discounted the reports from citizens because their reliability could not be judged. He also discounted the officer's surveillance because the officer had only observed defendant make several short trips from his home but had not observed any indicia of drug dealing such as hand-to-hand transactions or the like. Further, the judge noted that he rejected entirely reports of defendant's ties to organized crime as without any support in the affidavit.

The judge, however, put greater store in the reports of the confidential informant, particularly because he had made a successful controlled buy after reporting that he had witnessed defendant selling cocaine. That the same informant reported that defendant had guns was significant in the judge's view. The judge also noted the length and extent of defendant's criminal record, including his several charges for assault and weapons offenses. Having considered the totality of the circumstances based on the affidavit, the judge affirmed the warrant and denied defendant's suppression motion.

We likewise find that the officer put forth objective facts that, considered in the totality of information available, gave rise to a reasonable suspicion of a heightened risk to officer safety sufficient to justify issuance of a no-knock warrant. See Jones, supra, 179 N.J. at 400-01. Although the officer failed to detail the basis of the informant's knowledge that defendant possessed two guns, one could reasonably infer from the affidavit that the informant acquired the information in the course of purchasing drugs from defendant. Although the better practice would certainly have been for the officer to detail the source of the informant's information about the guns and any corroborating details, we cannot find on this record that the judge erred in denying defendant's motion. The informant's tip, corroborated as to defendant's sale of drugs, coupled with defendant's several arrests for weapons possession, robbery and assault, sufficed to justify issuance of the no-knock warrant.

Having reviewed the testimony of the officers present for the raid and the prosecutor's summation, we agree with defendant that the prosecutor's comments regarding the unknown man at the top of the stairs were improper. While the officers testified that standard procedure required the patrol officers to have ascertained the man's identity, checked for any outstanding warrants and released him after a decision was made that he had no involvement, none of the officers could testify that the procedure was followed here. Accordingly, the prosecutor's statement, "I submit that's exactly what happened in this case," was without a basis in the evidence and improper. "A prosecutor is permitted to respond to an argument raised by the defense so long as it does not constitute a foray beyond the evidence adduced at trial." State v. Munoz, 340 N.J. Super. 204, 216, (App. Div.), certif. denied sub nom., State v. Pantoja, 169 N.J. 610 (2001).

Defendant, however, did not object to these remarks. Arguments raised for the first time on appeal are reviewed under a plain error standard, meaning we disregard such errors unless "clearly capable of producing an unjust result." R. 2:10-2; State v. Daniels, 182 N.J. 80, 95 (2004); State v. Macon, 57 N.J. 325, 337 (1971). One of the reasons we treat claims of error, which could have been but were not raised at trial, differently from those timely challenged is because "[i]t may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment." Macon, supra, 57 N.J. at 333. In such a case, we will reverse defendant s conviction only if we are convinced that there was error "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Id. at 336. Although we find the prosecutor's comments improper, we are not led to conclude that they deprived defendant of a fair trial. Daniels, supra, 182 N.J. at 96 (noting that a reviewing court may reverse on the basis of a prosecutor's improper comments only if they were "'so egregious that [they] deprived the defendant of a fair trial.' [State v. Frost, 158 N.J. 76, 83 (1999)]").

We reject defendant's arguments regarding his sentence. First, we note that defendant did not seek the relief from the trial court that he requests here, namely that he be sentenced as a third-degree offender under N.J.S.A. 2C:44-1f(2). That statute allows a judge sentencing for a first- or second-degree crime to sentence one degree lower if "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands."

The Supreme Court has held that "[t]he reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." State v. Megargel, 143 N.J. 484, 505 (1996). We find no error in the judge's assessment of the aggravating and mitigating factors here. All are supported by adequate evidence in the record. Because the judge determined that the aggravating factors predominated over the single mitigating factor of the hardship of imprisonment, the statute prohibits consideration of a downgraded sentence. Further, that the quantity of drugs found was small does not provide compelling reason justifying a downgraded sentence.

We are satisfied that the judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence imposed is neither inconsistent with the sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Fuentes, 217 N.J. 57, 70-71 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).

Defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(2).

Affirmed.

1 The State also argues that defendant waived this argument by not raising it to the trial court. Having reviewed the transcript of the suppression hearing, it appears as if defendant raised the issue, at least obliquely, and the judge addressed it in his analysis. Although a close question, we have elected to address the issue.