STATE OF NEW JERSEY v. JORGE BULTRON

NOT FOR PUBLICATION WITHOUT THE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.

JORGE BULTRON,

Defendant-Appellant.

_______________________________

December 15, 2016

Submitted October 13, 2016 Decided

Before Judges Lihotz and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-03-0588.

Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the briefs).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Lillian Kayed, Assistant Prosecutor, on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Jorge Bultron appeals from a July 22, 2014 judgment of conviction, entered following a jury trial.1 The jury convicted defendant of: third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of a CDS, N.J.S.A. 2C:35-5(a)(1) and (2) (count two); third-degree distribution of a CDS within a school zone, N.J.S.A. 2C:35-7 (count three); and possession and distribution of a CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four).

On appeal, defendant seeks a new trial, arguing

POINT I

THE TRIAL COURT'S INITIAL RULING THAT THE DRUGS AT ISSUE HAD BEEN ABANDONED, AND, THEREFORE, THE EVIDENCE WHICH RESULTED FROM THE CHALLENGED WARRANTLESS SEARCH AND SEIZURE SHOULD NOT BE SUPPRESSED WAS ERRONEOUS. ADDITIONALLY, ONCE THE COURT WAS CONFRONTED WITH EVIDENCE CHALLENGING THE CREDIBILITY OF TESTIMONY BY A KEY STATE'S WITNESS RELATING TO A MATERIAL ISSUE, IT WAS IMPROPER FOR THE COURT TO DENY THE DEFENSE REQUEST TO REOPEN THE SUPPRESSION MOTION (U.S. CONST., AMENDS. IV AND XIV; N.J. CONST. (1947), ARTICLE I, PAR. 7).

A. The Property Was Not Abandoned.

B. The Trial Court Improperly Denied the Defense Motion to Reopen the Suppression Motion.

POINT II

THE JUDGE FAILED TO QUALIFY SHERIDAN AS AN EXPERT WITNESS BUT ALLOWED HIM TO PROVIDE TESTIMONY THAT WAS BEYOND THE KEN OF THE AVERAGE JUROR AND THAT EXCEEDED THE SCOPE OF PERMISSIBLE LAY OPINION, THEREBY DENYING BULTRON DUE PROCESS AND A FAIR TRIAL (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10) (RAISED BELOW).

We have reviewed all of these arguments in light of the record and applicable law. We affirm.

Reviewing defendant's first challenge to the order denying suppression, we recite facts presented during the October 24, 2013 suppression hearing. Testimony was provided by two of the arresting officers.

At approximately 1:52 p.m. on October 4, 2012, plain clothes Jersey City Police Department Officer Gregory Wojtowicz received a tip from a reliable confidential informant, which led to the arrest of Darrell Priester for drug distribution. Following Priester's arrest, the same confidential informant told police a short Hispanic man named "Jorge" supplied Priester and was expected to deliver a large quantity of narcotics at a location on Montgomery Street, near Ferris High School. He clarified the exchange would take place on the Brunswick Street side. Officer Wojtowicz and his partner Officer Daniel Sheridan, went to the area to conduct surveillance. Defendant challenges the judge's finding and conclusions.

Within five minutes of receiving the information, Officer Sheridan, who was in an unmarked police vehicle, testified he observed a short Hispanic man, later identified as defendant, carrying a white plastic bag, walking south on Brunswick Street with an unidentified African American male.

Officer Sheridan watched defendant remove an object from the bag and show it to the other man. He stated defendant "had in his left hand what appeared to be a brick of heroin. It was . . . essentially in his hand. He had a napkin that he unfolded . . . and then there was a brick of heroin inside that napkin that he was showing the other male." Officer Sheridan radioed what he saw and the location of the suspects. Officer Sheridan exited his vehicle and followed the men on foot.

As Officer Sheridan followed the men, he saw two plain clothes officers approach from the other direction. Using hand signals he informed Officer Chowanec defendant was the suspect. When Officer Chowanec advanced within five to ten feet, defendant "threw the item . . . in his hand, the brick of heroin, down to the ground. And then he also released the . . . white plastic bag, as well." Clarifying his observations, Officer Sheridan stated he watched defendant throw the object that was in his hand, drop the bag and "back away from it." Officer Chowanec stopped defendant, stating: "Don't move." He arrested defendant and Officer Sheridan secured the other man, who was later released.

On cross-examination Officer Sheridan acknowledged some errors in the details provided in the written report, as prepared by Officer Wojtowicz. Further, he admitted he did not observe a hand-to-hand drug sale or an exchange of money for an object between defendant and the men.

Officer Sheridan logged the evidence noting police recovered fifty glassine envelopes of heroin "stamped Lady GaGa in green ink, wrapped in brick paper and a brown napkin . . . ." The white bag contained another forty-nine bricks, similarly stamped. Later forensic testing confirmed the police recovered twenty-five grams of heroin.

Judge Joseph V. Isabella filed a written opinion on December 2, 2013 denying defendant's motion to suppress the drug evidence. After considering the totality of the facts, including the officers' training and extensive experience working on the narcotics squad, the judge concluded the officers had probable cause to stop defendant. The judge also found the objects in the white bag were abandoned by defendant, who at that point "lost any expectation of privacy in those items" rejecting his challenge to the constitutionality of the warrantless search.

The Supreme Court has explained the standard of review applicable to our consideration of a trial judge's fact-finding on a motion to suppress, in this way

We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243-44 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). Deference to those findings is particularly appropriate when the trial court has the "'opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record. Ibid. Moreover, we need not defer "to a trial . . . court's interpretation of the law" because "[l]egal issues are reviewed de novo." State v. Vargas, 213 N.J. 301, 327 (2013).

[State v. Watts, 223 N.J. 503, 516 (2015) (alteration in original).]

Thus, we do not determine the facts anew. State v. Heisler, 422 N.J. Super. 399, 412 (App. Div. 2011). Indeed, we must remain mindful not to "disturb the trial court's findings merely because 'it might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). We reverse only when the court's findings "are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).

On appeal, defendant challenges the conclusion he abandoned the objects in the white bag. He argues abandonment requires efforts by the suspect to distance himself from the object. He reasons because he merely dropped the bag, legal abandonment did not occur. We are not persuaded.

The federal and state Constitutions protect citizens "against unreasonable searches and seizures." U.S. Const. amend IV; N.J. Const. art. I, 7. These protections require police to first secure a warrant before seizing a person or conducting a search of a home, property or a person. Watts, supra, 223 N.J. at 513-14; State v. Reece, 222 N.J. 154, 167 (2015).

[B]oth the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee to New Jersey's citizens "[t]he right to walk freely on the streets of a city without fear of an arbitrary arrest." State v. Gibson, 218 N.J. 277[, 281] (2014). When evaluating the reasonableness of a detention, the "totality of circumstances surrounding the police-citizen encounter" must be considered. State v. Privott, 203 N.J. 16, 25 (2010) (quoting [State v. Davis, 104 N.J. 490, 504 (1986)]).

[State v. Coles, 218 N.J. 322, 343 (2014) (fist alteration in original).]

A reviewing court must determine whether the State has met its burden, by a preponderance of the evidence, to establish the warrantless search or seizure was justified in light of the totality of the circumstances. See Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983).

"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.'" State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999) (quoting State v. Farinich, 179 N.J. Super. 1, 6 (App. Div.), aff'd o.b., 89 N.J. 378 (1982) (Clifford, J., dissenting)).2

Thus, the proper test for abandonment remains, for Fourth Amendment purposes, whether a defendant "retains a reasonable expectation of privacy in the property alleged to be abandoned," United States v. Stevenson, 396 F.3d 538, 546 (4th Cir.) (alteration and citation omitted), cert. denied, 544 U.S. 1067, 125 S. Ct. 2534, 161 L. Ed. 2d 1122 (2005), and, for Article I, Paragraph 7 purposes, whether a defendant "retain[s] a proprietary, possessory, or participatory interest" in the property, Johnson, supra, 193 N.J. at 549.

[State v. Brown, 216 N.J. 508, 530 (2014).]

This court's examination of the challenge to abandonment in Farinich, involved a suitcase believed to contain marijuana. Farinich, supra, 179 N.J. Super. at 4. The defendant retrieved the suitcase when his plane landed in Newark. Ibid. As police escorted the defendant and his co-defendant to a secured area, the defendant dropped the suitcase and ran. Ibid. We held "evidence seized will not be suppressed if the suspect abandoned it." Id. at 5.

In Gibson, this court also affirmed a trial judge's finding of abandonment when a police officer observed the defendant "drop an item from his left hand which fell onto the driveway" as the officer "drove the police car into the driveway. . . . As the officers exited their vehicle, [the] defendant took 'one to two steps forward from where he dropped that item.'" Gibson, supra, 318 N.J. Super. at 5.

More recently, in Brown, the Supreme Court examined considerations to be reviewed when determining whether real property was abandoned. Brown, supra, 216 N.J. at 536. Although the factors stated by the court are tailored to real estate, the Court noted the overarching standard for examination requires consideration "in light of the totality of the circumstances." Ibid. See also State v. Carvajal, 202 N.J. 214, 227 (2010) ("In determining whether a defendant voluntarily and knowingly relinquished a possessory or ownership interest in property in response to police questioning, a court should apply a totality-of-the-circumstances analysis.").

Guided by those principles, we determine no basis to interfere with Judge Isabella's conclusions denying suppression. Deferring to the substantial credible facts found, we conclude the totality of the circumstances supported probable cause for defendant's arrest. See State v. Alexander, 191 N.J. Super. 573, 576 (App. Div. 1983) ("The police may 'arrest' only if they have probable cause; they may 'stop' for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an 'inquiry' without any grounds for suspicion."), certif. denied, 96 N.J. 267 (1984).

When defendant saw Officer Chowanec approach and heard him issue the order to stop, he threw the brick of heroin, which Officer Sheridan saw him holding in his left hand. Next, defendant dropped the bag containing the remaining drugs and stepped back. Defendant had control of the bag prior to the police stop; he knowingly and voluntarily threw the heroin and dropped the bag, which could only have belonged to him. See Carvajal, supra, 202 N.J. at 225 (identifying factors to consider when assessing abandonment). We conclude, as did Judge Isabella, sufficient credible evidence based on the totality of the circumstances, show Officer Sheridan's objectively reasonable belief defendant abandoned the white plastic bag and its contents.

Defendant next maintains evidence that contradicted Officer Sheridan's trial testimony required reopening the suppression hearing. When questioned regarding the man stopped with defendant the officer was asked whether he checked for outstanding warrants, to which he replied "I believe on that day I did." However, the police department had no record of a warrant check being requested. Defendant argued this fact tears at Officer Sheridan's credibility, requiring the order denying suppression to be vacated. The trial judge denied defendant's motion. Defendant maintains the determination was erroneous. We disagree and conclude the argument lacks sufficient merit to warrant extensive discussion, R. 2:11-3(e)(1)(E). We add these brief comments.

Defendant ably attempted to strip Officer Sheridan's testimony of credibility during trial cross-examination. He capitalized on the fact neither Officer Sheridan nor his fellow officer recalled any details regarding the man, they released, but arrested defendant. Omission of details from the written police report were also highlighted. Finally, the lack of substantiation for Officer Sheridan's warrant check assertion was emphasized.

Suppression did not turn on whether Officer Sheridan ran a warrant check of the second man. This fact was not germane to the heart of the judge's conclusion denying suppression. In fact, the issue never arose until the first trial. At that time, the defense capitalized on Officer Sheridan's misstatement. In denying the motion to vacate the suppression order, Judge Isabella noted the erroneous statement regarding a warrant check was collateral, not material, and did not require reopening of the suppression motion. We agree and reject defendant's claim the denial of his motion was an abuse of discretion.

Defendant's next argument suggests Officer Sheridan's testimony exceeded provision of a recitation of facts, and instead offered expert opinion, even though he was not qualified as an expert. Defendant further maintains this testimony intruded upon the province of the jury.

During trial, Officer Sheridan recited his qualifications, experience as a police officer, and the number of drug investigations he worked. He was then shown a photograph of the seized heroin, which he identified as "several hundred bags of heroin stamped Lady GaGa in green ink." He was asked about the discarded brick of heroin and its brown paper wrapping. Further, he described the manner in which the heroin was bundled. The next question was: "Officer, based upon your knowledge of heroin and its street value, how much is a brick worth?" He responded and was asked the cost of "an individual bag."

No objections were made throughout this testimony. Because defendant did not raise an objection before the trial judge, we review his argument under the "plain error" standard, which mandates reversal only for errors "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Accordingly, the test to apply is whether the possibility of injustice is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Officer Sheridan described the narcotics seized in this matter. He was then asked whether he knew the value of street heroin. He responded he did and answered the question. Unlike the officer in State v. McLean, 205 N.J. 438 (2011), Officer Sheridan did not testify defendant had been involved in drug dealing or possessed the drugs for sale. Id. at 461-62. His testimony was brief and evoked no objection from the defense. In fact, he never commented on why defendant possessed the heroin. Further, the number of packets of heroin seized, nearly 2500, supported the State's theory of distribution. Here, the province of the jury was not intruded and jurors were left to sort through the evidence and "using their common sense to make simple logical deductions." State v. Cain, 224 N.J. 410, 427 (2016). We reject defendant's claim of plain error.

In a pro se supplemental brief, defendant suggests the verdict was against the weight of the evidence, his arrest was the result of selective enforcement because of race and the use of an informant violated his rights to due process.

We note both a merits brief and a reply brief were filed on defendant's behalf. Absent leave of court, there is no provision in our rules of procedure permitting a defendant, who is represented by counsel, to separately file an additional brief. Further, review of these arguments presented, in light of our prior conclusions, shows they lack merit. R. 2:11-3(e)(1)(E).

Affirmed.

1 Following defendant's first trial, the jury could not reach a verdict. The conviction under review was rendered on retrial. The suppression hearing occurred prior to defendant's first trial.

2 The question of whether defendant Farinich advanced property was appealed as of right because of a dissent in the Appellate Division. Defendant's additional requests for certification on other issues was denied. 88 N.J. 497 (1981).