STATE OF NEW JERSEY v. TELIK K. PITTMAN

NOT FOR PUBLICATION WITHOUT THE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.

TELIK K. PITTMAN, a/k/a CARL

T. PITTMAN, a/k/a TELIK C.

PITTMAN, a/k/a KARL T. PITTMAN,

Defendant-Appellant.

___________________________________

July 29, 2015

Submitted June 3, 2015 Decided

Before Judges Fuentes and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-10-1678.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Telik Pittman appeals from his conviction by a jury on drug charges and from the court's sentence of seventeen years imprisonment. He claims the State lacked probable cause to obtain communication data warrants for cell phones that produced evidence used in his prosecution. He further claims that his sentence is unconstitutional, as well as excessive even if not unconstitutional. We affirm.

Defendant Pittman and a co-defendant, Travis Myers, were charged in a multi-count indictment with murder, attempted murder, and several other offenses following the shooting of two persons during a drug transaction. Myers, who was the shooter and who was seventeen years old at the time, pleaded guilty to manslaughter in adult criminal court and testified against defendant at his trial. He claimed that defendant forced him to shoot the victims. Defendant also testified and claimed he did not know Myers had a gun and would use it against the victims.

The jury acquitted defendant of all charges except two drug offenses that defendant admitted in presenting his defense at the trial. He was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(2). Because defendant was a repeat offender as a drug dealer, the court sentenced him on the drug charges to an extended term of seventeen years imprisonment with eight-and-a-half years of parole ineligibility.

On appeal, defendant argues

POINT I

THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED IN THIS CASE.

POINT II

DEFENDANT'S SENTENCE WAS UNCONSTITUTIONAL AS CONTRARY TO THE SUPREME COURT'S RECENT OPINION IN ALLEYNE V. UNITED STATES; ADDITIONALLY, IT WAS MANIFESTLY EXCESSIVE.

Neither argument has any merit.

I.

The evidence presented at the trial showed the following facts.

The Drug Deal and the Shooting

The homicide victim, Marquis Maing, was defendant's friend. Maing would provide drugs to defendant for him to sell on a consignment basis.

On the night of June 28, 2007, defendant was at the apartment of an acquaintance at the Winding Woods apartment complex in Sayreville. Myers, who was a cousin of the acquaintance, was also present. Defendant had previously asked Maing to deliver to him 100 grams of cocaine at Winding Woods.

On that night, Maing's girlfriend, Tina Castaldo, drove Maing to Carteret to purchase cocaine and marijuana. During the ride, Castaldo heard Maing talking on his cell phone, which had "direct connect" or "push to talk" capabilities referred to as "chirping" by the witnesses. Castaldo noticed from the phone's screen that Maing was talking with someone who used the street name "Pimps Up." It appeared from the conversation that Maing was procuring 100 grams of cocaine for Pimps Up. In Carteret, Maing entered a house and emerged an hour later with a package, which he placed in the trunk of the car. Maing then directed Castaldo to drive to Sayreville.

Castaldo drove to the basketball courts at the Winding Woods complex. Maing got out of the car and retrieved the package he had placed in the trunk. Defendant and Myers approached Maing, and Maing embraced defendant while slipping the cocaine into his pocket.

Defendant told Maing that Myers wanted to purchase marijuana. Maing offered to sell Myers one ounce of marijuana for $400. Myers said he only had $300. Maing replied, "We can't do it," and returned to the car. Defendant and Myers followed him. As Maing began to get into the passenger's side, Myers fired shots into the car from behind Maing. Maing was shot in the ankle, thigh, and chin, and Castaldo was shot in the leg. Defendant and Myers ran away from the scene.

Maing attempted to call 911, but he "faded very quickly." The gunshot wound to Maing's leg severed an artery and a vein, resulting in massive blood loss and Maing's death. Castaldo was injured by the gunshots but survived.

The Homicide Investigation

On the night of the shooting, the police retrieved a cell phone from the ground near the passenger's side door of the victims' car. They found another cell phone inside the car and also thirteen grams of cocaine and one ounce of marijuana. Investigator Eleazar Ricardo from the Middlesex County Prosecutor's Office applied orally to a judge for communication data warrants for the two cell phones.

Execution of the warrants revealed phone records confirming the 911 call to report the shooting at thirty-six seconds after 11:36 p.m. from a phone that was used by Maing. The last call before the 911 call was thirty-nine seconds earlier from someone listed on Maing's contacts list as Pimps Up. Seventeen calls were made between Maing's phone and the Pimps Up phone on the day of the shooting. A subscriber inquiry on the Pimps Up phone number revealed it was a pre-paid account under a fictitious name.

Investigator Ricardo then obtained a communications data warrant for the Pimps Up phone number, which revealed numerous calls between Pimps Up and a phone registered to Christina Crockett. Police interviewed Crockett, who identified Pimps Up as defendant, her "on again, off again" boyfriend at the time of the homicide. She told the police that defendant called her on the night of the shooting and asked her to pick him up in Sayreville. A few days later, defendant gave Crockett a bag of cocaine and asked her to hold it for him. Crockett turned the cocaine over to the police. Defendant was then arrested and charged with Maing's murder and also with drug offenses.

Examination of the Pimps Up phone records also led to the discovery of many calls between defendant and a phone linked to Myers in the days following the homicide. Myers was found, and he eventually admitted shooting Maing and Castaldo. He agreed to cooperate in the prosecution of defendant. Myers pleaded guilty to first-degree aggravated manslaughter and second-degree aggravated assault and was sentenced to twenty years imprisonment in exchange for his testimony.

At defendant's trial, Myers testified that, as Maing was going back to his car, defendant drew two handguns and ordered him at gunpoint to take one of the handguns and shoot Maing. Defendant testified at the trial that he was unarmed that night, and he denied shooting either victim or coercing Myers to shoot them. He testified he had no plan or intention to rob Maing. In the course of presenting his defense to the homicide and weapons charges, however, defendant admitted he received the cocaine from Maing and intended to sell it.

II.

Defendant challenges the communication data warrants issued for Maing's, Castaldo's, and his cell phones, claiming the warrants were not supported by probable cause. He claims the fruits of the information retrieved pursuant to the warrants should have been suppressed in his prosecution.

Although we question whether defendant has standing, or any privacy interest, that would allow him to challenge information retrieved from the cell phones of the shooting victims, the State has not challenged defendant's standing to contest the warrants. Therefore, we do not address that issue. We reject defendant's arguments on appeal because they are completely devoid of merit.

"The Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution protect against unreasonable searches and seizures by requiring a showing of probable cause to issue a warrant." State v. Chippero, 201 N.J. 14, 25-26 (2009). While probable cause eludes precise definition, id. at 26, to obtain a warrant, law enforcement authorities must show "a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 28 (quoting United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993)).

Defendant bears the burden of proving that a warrant was issued without probable cause. Id. at 26. Our Supreme Court stated

[W]arrant applications "should be read sensibly rather than hypercritically and should be deemed legally sufficient so long as they contain[] factual assertions which would lead a prudent [person] to believe that a crime [has] been committed and that evidence . . . of the crime [is] at the place sought to be searched."

[State v. Sullivan, 169 N.J. 204, 217 (2001) (quoting State v. Laws, 50 N.J. 159, 173 (1967), cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968)).]

In this case, the first warrants were issued on July 2, 2007, for the two cell phones recovered at the scene of the shooting. Investigator Ricardo testified before the judge who issued the warrants that he arrived at the crime scene, discovered that Maing and Castaldo had been shot, and noted shell casings found at the scene. Ricardo testified about finding one phone on the ground near the victims' car and a second one inside the car. He stated that the car was registered to Castaldo's father, who consented to a search of the car. Cocaine and marijuana were also recovered from inside the car. Ricardo told the judge that both Maing and Castaldo had previous arrests for drug distribution. With respect to Maing's phone, he testified that Maing's "friends and family" told him that Maing always carried two phones, and they confirmed the numbers for those phones.1 Based on this information, the judge issued the warrants.

Defendant's sole objection to the July 2, 2007 warrants is that Ricardo's application referred to information about Maing's cell phones obtained from "friends and family" without specifically identifying those sources or establishing their reliability. In the circumstances of this case, establishing the reliability of those sources was not necessary and did not affect the finding of probable cause for the warrants. Maing and Castaldo were shot. They had drugs in the car and had previous arrests for drug distribution. This evidence immediately suggested to the homicide investigators that the shooting might be the result of a drug deal. An examination of the phones that appeared to belong to the victims might yield evidence about the events that led to the shooting and the person or persons responsible.

Probable cause for data warrants on those phones likely existed even without the drugs found in the car and the victims' arrest histories. The police would typically have probable cause to search a homicide victim's cell phone found near the scene of a shooting for clues to the identity of an unknown assailant. Unless the evidence available to the police conclusively demonstrated no connection between the victim and the assailant, a reviewing judge would likely find a "fair probability" the victim's cell phone might contain evidence regarding where the victim had been and who he or she had spoken to, both of which are important pieces of information that might lead to the identity of an unknown shooter. Undoubtedly, the investigators had probable cause to obtain communication data warrants for the cell phones that were found at the scene of the shooting and appeared to belong to the victims.

From information obtained from Maing's cell phone, the investigators determined that many direct connect calls were made on the day of the shooting to a phone that was subsequently connected to defendant. This number was listed in Maing s phone by the name Pimps Up. Ten calls occurred between Maing and Pimps Up that night, the first at 9:52 p.m. and the last at 11:35 p.m., less than one minute before Maing called 911.

On July 9, 2007, Investigator Ricardo applied to the same judge for a communications data warrant for the Pimps Up phone number. Ricardo did not repeat all the information the judge had already heard during the first application. Instead, his testimony revealed the number of calls between the Maing and the Pimps Up phones and how they led up to the time of the shooting. The judge approved the warrant for the Pimps Up phone number. This additional warrant led to the discovery of defendant's girlfriend, Kristina Crockett, who identified defendant and surrendered his cocaine to the police.

Defendant challenges the warrant for the Pimps Up phone on the ground that it was the fruit of the earlier warrants. We have already rejected the basis for that argument. He also argues that information the investigators had developed about the possibility that Maing might have been meeting with an individual known as "B-Bud" contradicted the relevance of the calls to Pimps Up. This argument does not detract from the probable cause the investigators had to obtain information about the Pimps Up phone. Even if B-Bud's phone was also relevant to the investigation and might have led to a different suspect, the police still had probable cause to search the data from the Pimps Up phone.

On July 13, 2007, Ricardo again appeared before the same judge and applied for additional communication data warrants for other phones, including one believed to be used by B-Bud and one associated with a "K.P.," who was subsequently also determined to be defendant.2 Although many calls on the night of the shooting were found to have occurred between the Pimps Up and the K.P. phones, defendant does not identify what evidence, if any, was discovered and used against him from this information. Consequently, we need not specify the probable cause that justified the warrant for the K.P. phone, although we see no valid argument that the police lacked probable cause to obtain the July 13 warrants.

In sum, there is ample evidence in the record to support the issuance of the several communication data warrants.

III.

Defendant challenges his seventeen-year sentence as unconstitutional on the ground that the enhancement of the sentencing range for his second-degree drug crime was based on his prior record of conviction for a drug offense but that the jury was not asked to and did not find that he had committed the prior drug offense. He also argues generally that the sentence is excessive.

In 2004, defendant was convicted of possession of a controlled dangerous substance with intent to distribute in a school zone, N.J.S.A. 2C:35-7. In 2007, he pleaded guilty to another instance of possession with intent to distribute in a school zone based on an incident that had preceded the shooting charges of this case. Defendant admitted to both of those drug convictions in his direct testimony at the trial. Because of defendant's repeat drug offender status, he faced a mandatory extended term sentence pursuant to N.J.S.A. 2C:43-6(f).

At defendant's sentencing in this case, his attorney acknowledged that defendant was subject to a mandatory extended term under the cited statute. Now for the first time on appeal, defendant argues that the imposition of a mandatory extended term was unconstitutional as a result of the United States Supreme Court's decision in Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), which was issued after his sentencing. He argues that Alleyne requires the fact of his repeat offender status to have been presented to and found by the jury beyond a reasonable doubt, and not by the court at sentencing. That is not the holding of Alleyne. The holding of Alleyne pertained to a finding by the sentencing court that the defendant had brandished a firearm during the commission of a robbery, thus increasing his mandatory minimum sentence under federal law from five to seven years. Id. at ___, 133 S. Ct. at 2156, 186 L. Ed. 2d at 322. We reject defendant's attempt to extend the holding of that case to his prior criminal record.

In 1998, the Court held in Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S. Ct. 1219, 1222, 140 L. Ed. 2d 350, 357 (1998), that a prior conviction that increases the maximum sentence for an offense is not an element of the offense and therefore need not be charged in the indictment or found by the jury. The Court reasoned in Almendarez-Torres that "recidivism 'does not relate to the commission of the offense, but goes to the punishment only, and therefore . . . may be subsequently decided.'" Id. at 244, 118 S. Ct. at 1231, 140 L. Ed. 2d at 368 (quoting Graham v. West Virginia, 224 U.S. 616, 629, 32 S. Ct. 583, 588, 56 L. Ed. 917, 923 (1912)).

Two years after Almendarez-Torres, in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), the Court held that any fact that subjects a defendant to a longer sentence must be submitted to the jury and found beyond a reasonable doubt. However, the Court expressly refused to disturb the Almendarez-Torres holding regarding prior convictions. The Court stated: "Apprendi does not contest the [Almendarez-Torres] decision's validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule . . . ." Ibid., 120 S. Ct. at 2362, 147 L. Ed. 2d at 454-55. In Apprendi, the Court stated the rule as follows: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Ibid., 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455 (emphasis added).

Alleyne expanded the Apprendi holding to a mandatory minimum sentence. Alleyne, supra, ___ U.S. at ___, 133 S. Ct. at 2158, 186 L. Ed. 2d at 324. The Court held that a fact such as brandishing a gun that increased a mandatory minimum sentence must be submitted to a jury and found beyond a reasonable doubt. Id. at ___, 133 S. Ct. at 2163, 186 L. Ed. 2d at 330. However, in reaching that conclusion, the Court again refused to revisit the holding of Almendarez-Torres and left it as "a narrow exception to th[e] general rule . . . ." Id. at ___ n.1, 133 S. Ct. at 2160 n.1, 186 L. Ed. 2d at 327 n.1.

Since the Court has left intact the holding of Almendarez-Torres, we reject defendant's argument that the Court would now hold that the fact of a prior conviction must also be presented to a jury for its determination.3 Referencing Almendarez-Torres, the New Jersey Supreme Court has also acknowledged the constitutionality of extended term sentences based on a defendant's prior convictions. State v. Franklin, 184 N.J. 516, 538 n.8 (2005).

With respect to the length of defendant's term of imprisonment and the period of parole ineligibility, we do not substitute our judgment for that of the trial court, even if we were to have a different view of an appropriate sentence. State v. Natale, 184 N.J. 458, 489 (2005). We only review the sentencing court's decision to determine whether

(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65, (1984)).]

Applying that standard of review, we find no legal error or abuse of discretion in the sentence imposed upon defendant. See State v. Bieniek, 200 N.J. 601, 612 (2010); Roth, supra, 95 N.J. at 365.

Affirmed.

1 The warrant application included both cell phone numbers used by Maing, but it appears that the second phone was not recovered, and no evidence against defendant was obtained through that phone number.

2Defendant admitted at the trial that both the Pimps Up and K.P. phones were his, although the latter seems to have been used by someone else on the night of the shooting.

3 Every United States Court of Appeals to consider the issue has held that Almendarez-Torres remains the law unless the Supreme Court expressly overturns it. United States v. Soto, 780 F.3d 689, 709 (6th Cir. 2015); United States v. Smith, 775 F.3d 1262, 1266 (11th Cir. 2014); United States v. Burnett, 773 F.3d 122, 136 (3d Cir. 2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1722, 191 L. Ed. 2d 691 (2015); United States v. Dantzler, 771 F.3d 137, 143-45 (2d Cir. 2014); Arrendondo v. Neven, 763 F.3d 1122, 1133 (9th Cir. 2014); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Rodriguez, 759 F.3d 113, 122 (1st Cir.), cert. denied, ___ U.S. ___, 135 S. Ct. 421, 190 L. Ed. 2d 305 (2014); United States v. Shaw, 758 F.3d 1187, 1197 (10th Cir. 2014), cert. denied, ___ U.S. ___, 135 S. Ct. 503, 190 L. Ed. 2d 378 (2014); United States v. Garrett, 757 F.3d 560, 574 (7th Cir. 2014); United States v. Abrahamson, 731 F.3d 751, 751-52 (8th Cir. 2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1565, 188 L. Ed. 2d 576 (2014); United States v. Graham, 711 F.3d 445, 455 (4th Cir.), cert. denied, ___ U.S. ___, 134 S. Ct. 449, 187 L. Ed. 2d 300 (2013).