STATE OF NEW JERSEY v. GORDON T. PETERS

NOT FOR PUBLICATION WITHOUT THE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.

GORDON T. PETERS,

Defendant-Appellant.

_______________________________

September 14, 2015

Submitted November 13, 2014 Decided

Before Judges Fuentes, Kennedy and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-04-0708.

Law Offices of Brian J. Neary, attorney for appellant (Mr. Neary, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephen J. Natoli, Special Deputy Attorney General/

Acting Assistant Prosecutor, on the brief).

Appellant filed pro se supplemental briefs.

PER CURIAM

Defendant, Gordon Peters, and his son, Jason Peters, were tried before a jury under Indictment No. 10-04-0708 for possession of twenty-five pounds or more marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10)(a).1 The jury found defendant guilty and acquitted his son Jason Peters. After denying his motion for a new trial, the court sentenced defendant to a term of fifteen years. The court also imposed the mandatory fines and penalties.

In this appeal, defendant argues, through private appellate counsel, that the trial court erred in denying his pretrial motion to suppress evidence seized by a Bayonne Police Officer when he conducted a warrantless search of defendant s tractor trailer that was lawfully parked on a privately owned lot.2 Defendant also claims the presence of the marijuana seized from defendant s tractor trailer in the courtroom during the trial was unduly prejudicial and violated defendant s right to a fair trial. Finally, defendant, through counsel, argues the sentence imposed by the court was excessive. Defendant also filed two pro se briefs raising other arguments.

We reject defendant s arguments attacking his conviction, but remand for resentencing. We gather the following facts from the record developed before the trial court, including the N.J.R.E. 104 hearing conducted by the trial court to decide defendant s motion to suppress. However, we note that the State adopted the facts reflected in defendant s brief, including the procedural history and his "appendices and citations."

I

Bayonne Police Officer Samuel R. Garcia was the only witness who testified at the evidentiary hearing conducted by the court over a two-day period in June 2011 to adjudicate defendant s motion to suppress. He also testified as a witness for the State at trial. Although the motion judge relied solely on Garcia's testimony at the evidentiary hearing to deny defendant s motion to suppress, we will describe his observations and activities related to this case through his trial testimony. There is no material difference between his trial testimony and the testimony Garcia gave before the motion judge.

At the time of the incident that lead to this appeal, Garcia had been a patrol officer with the Bayonne Police Department for fifteen years. He had seen and smelled marijuana approximately three to four hundred times during his tenure as a Bayonne Police Officer. On the evening of January 26, 2010, Garcia was working the 9:00 p.m. to 6:30 a.m. shift with fellow Bayonne Police Officer Domenic Colabraro.

On that date, Garcia and Colabraro were assigned to patrol a large industrial area of Bayonne s Fifth Sector that included North Hook Road. Garcia described this area of the City as a "very commercial, industrial [area]; [consisting of] lots of warehouses, [parking] lots, tanks, [and] chemical companies." The parking lots are used to temporarily place commercial equipment and park tractor trailers. Garcia testified he would routinely patrol that area "at least twice a night." Garcia also noted that prior to the incident that led to this trial, the Bayonne Police Department was especially concerned about the theft of tractor trailers.

On the night of January 26, 2010, Garcia and Colabraro were patrolling the area around North Hook Road. At approximately 10:30 p.m., they noticed the gate at 65 North Hook Road was opened. This was unusual because the gate on this site is "always closed" around this time of night; there were also no signs of truck traffic or other commercial activity. The two officers drove their marked police car onto the property and turned on the vehicle's "alley lights and spotlight." As they scanned the area, Garcia and Colabraro saw a van parked between two tractor trailers "in the rear . . . with a hatchback, the back of it open." The two vehicles were aligned so that "[t]he rear of the tractor trailer was lined up with the rear of the Honda van."

According to Garcia, the minivan did not have any passenger seats, creating a completely opened rear cargo space. He was not certain whether the seats had been removed "or possibly, pushed underneath." When the officers turned off the patrol car s alley lights and spotlights, they "noticed there was a flashlight movement in the back." At this point, Garcia concluded he had uncovered a burglary in progress. He told Colabraro to call for backup, and stepped out of the marked patrol car to do a "quick visual [inspection] of the whole property to see if [there was] . . . anybody on the property." After confirming no one else was in the area, Garcia testified he and Colabraro started to walk toward the front of the tractor trailer where they "heard some drilling."

When they reached the middle of the tractor trailer, they both "got on [their] knees" to determine whether they could see "anybody s legs or anything like that." When Garcia saw the overhead lights of the police backup unit that had just arrived, he noticed the right side door of the tractor trailer was opened and the left side was closed. At that moment, Garcia testified he and Colabraro "came around with our guns drawn and our flashlights on." When they looked inside the trailer, they "saw a . . . male, standing in the trailer with a simple silver bundle in their [sic] hand . . . [and] a miner s light on his head."

Garcia described the man as "a black male, about 6 feet tall, facial hair. I remember him having blue gloves on. Dark clothes I think." Garcia subsequently identified the man as defendant, Gordon Peters. Garcia ordered defendant "to show [them] his hands and . . . [step] out of the trailer." According to Garcia, instead of complying, defendant "took a step back and, kind of, retreated instead of listening to [him]." Defendant also threw the bag to the ground. Faced with defendant s failure to obey his command, Garcia testified he told Colabraro "to cover him" while Garcia climbed into the trailer and "grabbed control of him."

After securing defendant, Garcia patted him down and found a "folding knife." Garcia testified he found on the knife "residue of green vegetation, believed to be marijuana." Garcia also detected "a very strong smell of marijuana" when he entered the trailer. This "very strong" odor of marijuana was coming from inside the trailer. At this point, Colabraro and backup Officer Frank Calabrese were also inside the trailer. Garcia gave the following description of the item defendant threw on the floor of the trailer

It was about 12 - - roughly 12 by 12 in size. Maybe 6 inches thick. It was wrapped in silver, like a roofing paper and some clear plastic over that. It had a slit in it, about 2 inches wide. And it appeared to have some green vegetation coming out of that.

Garcia testified that while backup Officer Calabrese was inside the trailer, he found a crate containing "several bundles that matched3 the one that was outside . . . that Gordon Peters threw on the ground." Garcia acknowledged he had looked in the same area earlier and did not see the items Calabrese found. Garcia testified the crate "was all wood . . . about 4 feet by 4, possibly. 4 feet tall. In a square shape." There were also screws on the lid and on the floor. "The lid was just slid to the right side. And there was a . . . yellow or orange drill on it."

The police officers searched the entire area where the trailer and the van were parked. No other individuals were found. Both the trailer and the van were impounded and towed to the Central Garage. Defendant was arrested and transported to the Bayonne Police Station. According to the arrest report filed by Garcia and Calabrese, defendant had on his person two cells phones, a black portfolio containing information pertaining to the tractor trailer, and $581.69 in cash. Defendant acknowledged he owned the tractor trailer where the police found the contraband.

The execution of a search warrant obtained by Bayonne Police Sergeant Joseph Spiers after the vehicles were impounded revealed $3000 in cash inside the tractor trailer; the truck portfolio; a hotel receipt from Terra Haute, Indiana for the nights of January 21 and 22, 2010; appliances; and thirty-one bundles identical to the one dropped by defendant, weighing nearly 600 pounds. Subsequent chemical analysis confirmed these bundles contained marijuana. Bayonne Police Sergeant, Deirdre Sullivan, the officer responsible for the safekeeping of the contraband, identified the bundles at trial. The State presented expert testimony from Linda Hogger, the Chief Forensic Chemist in the Hudson County Prosecutor s Office, with respect to the chemical analysis of the marijuana seized.

The State s final witness, John Kotalowski, was also admitted as an expert witness in the area of drug investigations and narcotics related activity. Overruling defense counsel s objections, Kotalowski testified concerning the packaging of narcotics and the methods used to distribute the contraband as a commodity. He also opined as to the street value of the marijuana seized from defendant s tractor trailer.

Defendant s son, codefendant Jason Peters, testified for the defense. He described the manner and methods of interstate trucking. He denied he and defendant stayed two nights in Terre Haute, Indiana. He claimed the truck hit a deer and needed repairs. He testified he and defendant were together at all times. He also testified he has never seen his father do anything illegal or anything connected to the marijuana found in the tractor trailer. Jason4 claimed the gate of the New Hook Road lot was opened when he and defendant arrived that night. They parked the truck and went to sleep wearing t-shirts and pajamas.

Jason woke up when he noticed a light brightening the cab. He did not think anything was wrong and went back to sleep. He heard Officer Garcia knock on the driver s side door approximately five minutes later. The police escorted Jason to the end of the trailer, searched his person, and found $519 in cash in his wallet and other personal items in the truck. He testified the police officers questioned both he and his father for approximately fifteen to twenty minutes. Jason also indicated on cross-examination that his father did not give consent for the police officers to search the trailer.

II

Represented by appellate counsel, defendant now raises the following arguments on appeal.

POINT I

THE COURT BELOW COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS EVIDENCE, WHICH WAS THE PRODUCT OF AN ILLEGAL, WARRANTLESS SEARCH.

POINT II

THE RECORD BELOW DEMONSTRATES CONTRADICTIONS AND INCONSISTENCIES OF SUCH MAGNITUDE THAT THERE CAN BE NO OTHER REASONABLE CONCLUSION BUT THAT THE TESTIMONY OF THE INVESTIGATING OFFICER WAS NOT CREDIBLE AND THE EVIDENCE WAS ILLEGALLY AND IMPROPERLY SEIZED.

POINT III

THE PRESENCE OF THE CONTRABAND IN THE COURTROOM DURING TRIAL CONSTITUTED UNDUE PREJUDICE TO DEFENDANT-APPELLANT THEREBY DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL.

POINT IV

THE SENTENCE IMPOSED UPON DEFENDANT-APPELLANT BY THE COURT WAS EXCESSIVE.

Defendant has also filed a pro se supplemental brief, in which he raises the following additional argument points

POINT ONE

MATERIAL OMISSIONS IN AFFIDAVIT SUBMITTED IN APPLICATION FOR SEARCH WARRANT PREVENTED THE ISSUING JUDGE FROM CONDUCTING AN INDEPENDENT, NEUTRAL EVALUATION OF FACTS NECESSARY TO THE PROBABLE CAUSE ANALYSIS.

(a) Material Omissions In Affidavit Resulted In Skewed Factual Consideration By Judge And Ultimately Led To Application Of An Incorrect Legal Standard.

(b) The Probable Cause Finding And Search Warrant Were Based Upon Information Laying Outside Of Information Contained Within The Four Corners Of the Affidavit.

(c) Had The Suppression Judge Applied The Correct Legal Standard A Finding Of Probable Cause Or Reasonable Suspicion Could Not Have Been Made Absent A Consideration Of, And Reliance Upon Illegally Obtained Evidence. (Not Raised Below)

POINT TWO

THE SEARCH WARRANT IS FACIALLY INVALID AS IT DOES NOT IDENTIFY THE JURISDICTION FROM WHICH IT ISSUED, WARRANTING THE SUPPRESSION OF ANY EVIDENCE SEIZED ON CONNECTION THERETO. (Not Raised Below)

POINT THREE

DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

After the briefs were filed, and without leave of this court, defendant filed a second pro se supplemental brief raising the following argument

POINT ONE

THE FINAL AGENCY DECISION TO DENY APPELLANT COMMUNITY RELEASE, WITHOUT PROVIDING A REASON FOR SUCH DENIAL, VIOLATES THE HOLDING IN SMITH V. DEPARTMENT OF CORRECTIONS, 346 N.J. Super. 24 (APP. DIV. 2001), AND SHOULD BE REVERSED AND REMANDED FOR A PROPER STATUS REVIEW.

We reject these arguments and affirm. We will briefly address defendant s argument attacking the motion judge s decision to deny his motion to suppress the evidence the police found inside the trailer. In reviewing the motion judge s decision, we are bound to

uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record. We accord deference to those factual findings because they "are substantially influenced by [an] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Thus, appellate courts should reverse only when the trial court's determination is "so clearly mistaken 'that the interests of justice demand intervention and correction.'"

[State v. Lamb, 218 N.J. 300, 313 (2014) (citations omitted).]

The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution both guarantee "'[t]he right of the people to be secure . . . against unreasonable searches and seizures[.]'" State v. Shaw, 213 N.J. 398, 409 (2012) (alterations in original) (quoting U.S. Const. amend. IV and N.J. Const. art. I, 7). A warrantless search is presumptively invalid unless the State establishes the search was justified by a recognized exception to the warrant requirement. State v. Frankel, 179 N.J. 586, 598, certif. denied, 543 U.S. 876, 160 L. Ed. 2d 128, 125 S. Ct. 108 (2004). One of the recognized exceptions to the warrant requirement is the plain view doctrine.

As the Supreme Court recently reaffirmed, "[a] police officer may seize evidence in plain view without a warrant if the officer is 'lawfully . . . in the viewing area' when he discovers the evidence, and it is immediately apparent the object viewed is 'evidence of a crime, contraband, or otherwise subject to seizure.'" State v. Keaton, ____ N.J. ____, ____ (2015), (slip op. at 19) (citation omitted). The key to the application of the plain view doctrine is determining whether the officer discovered the evidence "'inadvertently, meaning that he did not know in advance where evidence was located nor intend beforehand to seize it.'" Ibid. (citation omitted).

Judge Kevin Callahan presided over the evidentiary hearing to adjudicate defendant s motion to suppress. Judge Callahan had the unique opportunity to assess the credibility of the only witness who testified at the hearing. From this vantage point, Judge Callahan made the following findings with respect to the applicability of the plain view doctrine

In the present case, Officer Garcia stepped in the trailer to further investigate the possible burglary, and he testified that he smelled the odor of marijuana and that he observed a slit in the package which revealed vegetation appearing to be marijuana. Officer Garcia was (1) lawfully in the viewing area because of the reasonable suspicion that a burglary was occurring; (2) he did not have advance knowledge of the location of the evidence; and (3) it was "immediately apparent" from his knowledge and training that he smelled marijuana and saw what appeared to be marijuana protruding from one of the packages in the trailer.

Applying our deferential standard of review with respect to Judge Callahan s factual findings, Lamb, supra, 218 N.J. at 313, we discern no legal basis to disagree with Judge Callahan s ultimate conclusion denying defendant s motion to suppress based on the plain view doctrine. Defendant s arguments as reflected in Points II and III lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We next address defendant s argument seeking a remand for resentencing. The trial judge found the following aggravating factors: N.J.S.A. 2C:44-1(a)(1), "The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;" N.J.S.A. 2C:44-1(a)(5), "There is a substantial likelihood that the defendant is involved in organized criminal activity;" and N.J.S.A. 2C:44-1(a)(9), "The need for deterring the defendant and others from violating the law."

As an appellate court, we must examine the record carefully 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) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Mindful of these standards of review, we must remand the matter for resentencing. There is no evidence in this record supporting the application of aggravating factor one, N.J.S.A. 2C:44-1(a)(1). Defendant s remaining arguments, including those raised in his two supplemental pro se briefs, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We note, however, that we reject defendant s argument alleging ineffective assistance of trial counsel without prejudice to defendant s right to raise this issue in the context of a post-conviction relief petition. "'Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding.'" State v. O Neil, 219 N.J. 598, 610 (2014) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)).

Defendant s conviction is affirmed. We remand for the court to resentence defendant without applying aggravating factor one. N.J.S.A. 2C:44-1(a)(1).

1 Indictment No. 10-04-0708 also included a second count charging defendant and his son with possession of one ounce of marijuana or more with intent to distribute "within 500 feet of the real property comprising a public housing facility, public park, or a public building," N.J.S.A. 2C:35-5(b)(10)(a) and N.J.S.A. 2C:35-7.1. The trial court granted the State s motion to dismiss this count of the Indictment on February 21, 2011.

2 The judge who heard and decided the motion to suppress was not the same judge who presided over the trial of defendant and his son.

3 Garcia later clarified the items Calabrese found looked "identical" to the one defendant threw down when Garcia confronted him inside the tractor trailer.

4 We refer to Jason Peters by his first name to distinguish him from his father since they shared the same last name. We do not intend any disrespect.