STATE OF NEW JERSEY v. TARRENCE J. HEARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TARRENCE J. HEARD, a/k/a

HARRISON HORACE,

Defendant-Appellant.

____________________________

November 21, 2016

Submitted October 26, 2016 Decided

Before Judges Alvarez and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 13-11-0929.

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

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence seized pursuant to a warrant, defendant Tarrence J. Heard pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(3), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He was sentenced to an eight-year term of imprisonment with a four-year period of parole ineligibility on the weapons conviction, concurrent to a five-year term of imprisonment with a three-year period of parole ineligibility on the drug conviction. We affirm the denial of the motion to suppress the evidence but remand to correct the sentence, which the State concedes is inconsistent with the plea agreement.

Police searched defendant's home at 4:30 p.m. on May 24, 2012, discovering the heroin and the gun on which the charges in the case are based. In discovery, defendant was provided with two copies of the search warrant, identical except for the time at which they were signed. One copy provided that the judge signed the warrant at 1:45 p.m. and the other that the judge signed it at 11:45 p.m.

The detective from the Millville Police Department who procured the warrant and the assistant prosecutor who reviewed and approved it prior to its presentation to the judge for signature both testified at the suppression hearing. The assistant prosecutor had no recollection of reviewing the warrant, but identified his signature approving it. The detective testified that the assistant prosecutor reviewed the form sometime after noon on May 24, and he went immediately to the county courthouse in Bridgeton to present it to a superior court judge.

The detective testified in accordance with a sign-in sheet, maintained by the sheriff's office at the courthouse and admitted into evidence, that he arrived at 1:25 p.m. He testified he took two copies of the warrant and his affidavit to Judge Geiger, who signed and dated each warrant. The detective testified he watched as Judge Geiger signed and dated both warrants, but did not notice the discrepancy in the times the judge wrote on the warrants. The detective left the courthouse immediately thereafter, signing out with the sheriff's officer at 1:50 p.m. Members of the State Police executed the warrant a few hours later at 4:30 p.m.

Reviewing the warrants, Judge Swift found obvious that they were separately executed and that one was not a copy of the other on which someone had changed the time of issuance. He noted that the detective's testimony of bringing two copies of the warrant for signature was consistent with the customary practice in the county. The judge further found that "all other collateral evidence" was "corroborative of the fact that the [s]earch [w]arrant was actually signed at 1:45 p.m."

In addition to the testimony of the detective and the sign-in sheet documenting the time the detective was in the courthouse, the judge further noted that Judge Geiger was not the emergent duty judge on the day the warrants were signed. Judge Swift found it was thus

highly unlikely that [Judge Geiger] would have signed a Search Warrant Application at 11:45 p.m.; and, that would, obviously, have been done from his house, which I know is

in [another town], not in Bridgeton. So

it's . . . very unlikely, extremely unlikely, that Judge Geiger was in the courthouse at 11:45 p.m. on May 24th.

Judge Swift concluded that although he could not say "with absolute certainty" that both warrants were signed at 1:45 p.m., he was "very confident" that Judge Geiger simply erred in writing 11:45 p.m. on one of the warrants. Finding that the "judicial error" should not redound to the detriment of the State, the judge denied defendant's motion.

Defendant raises two issues on appeal

POINT I

THE MOTION COURT ERRONEOUSLY PLACED THE BURDEN OF PROOF ON THE DEFENDANT TO DISPROVE THE VALIDITY OF THE WARRANT, AND ERRED IN FINDING THAT THE SEARCH OF DEFENDANT'S HOME WAS CONDUCTED PURSUANT TO A WARRANT.

POINT II

A REMAND FOR RESENTENCING IS REQUIRED BECAUSE THE COURT IMPOSED THE SENTENCES ON THE INCORRECT COUNTS AND DOUBLE-COUNTED THE "SERIOUSNESS OF THE OFFENSES" AS AN AGGRAVATING FACTOR.

Neither of these points requires extensive discussion.

Our review of a trial court's factual findings is, of course, limited. See State v. Johnson, 42 N.J. 146, 161 (1964). "An appellate court 'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses . . . .'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting Johnson, supra, 42 N.J. at 161). Appellate review of the trial court's application of the law to the facts, however, is plenary. State v. Coles, 218 N.J. 322, 342 (2014).

Applying that standard here, defendant has provided us no basis to overturn the trial court's factual findings, which are amply supported by the evidence in the record. See State v. Gamble, 218 N.J. 412, 424 (2014). The judge carefully reviewed the proofs before him and reasonably concluded that Judge Geiger simply wrote the wrong time down on one of the warrants.1 We find no error in that finding or in the judge taking judicial notice under N.J.R.E. 201 that Judge Geiger was not on emergent duty on the day he signed the search warrants, and thus that it was highly unlikely he would have signed a warrant at 11:45 p.m. on that date. There is simply nothing in the record to support defendant's contention that Judge Swift either presumed the validity of the warrant or placed the burden on defendant to disprove its validity.

We reject defendant's contention that the sentencing judge erred by "double-count[ing] the 'seriousness of the offenses' as an aggravating factor" in pronouncing sentence. A review of the transcript makes plain the judge was referring to the seriousness of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted in accordance with aggravating factor six, N.J.S.A. 2C:44-1a(6), which the judge found in addition to aggravating factors three and nine. He was not referring to the seriousness of the crimes for which defendant was being sentenced and did not find aggravating factor one or two or any other unspecified aggravating factor.

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

While we are satisfied with the aggregate term imposed, which was consistent with the plea agreement, the State concedes that the judge transposed the sentences on the convictions. The terms of the plea agreement called for the prosecutor to recommend defendant be sentenced to eight years in prison with four years' parole ineligibility consistent with a mandatory extended term pursuant to N.J.S.A. 2C:43-6f, on the drug conviction and to five years with three years' parole ineligibility consistent with the Graves Act, N.J.S.A. 2C:43-6c, on the gun charge. As the judge stated that he was "impos[ing] the recommended sentence" on the "negotiated plea agreement[,]" we remand for correction of the judgment of conviction to reflect the sentence actually imposed. See State v. Randolph, 210 N.J. 330, 354 (2012) (noting that when resentencing is ordered after appeal, the remand order may be limited to correct a plainly technical error).

Affirmed and remanded for correction of the judgment of conviction in accordance with this opinion.

1 Although defendant argues that the detective submitted an affidavit prior to his testimony stating that the judge had signed the warrant at 11:45 a.m., not 11:45 p.m., the detective was not confronted with the discrepancy at the suppression hearing. The State argues that the critical fact is that the detective knew he applied for the warrant at the courthouse in the middle of the day and not shortly before midnight. The trial judge obviously did not find the affidavit impaired the detective's credibility.