STATE OF NEW JERSEY v. Quentin

NOT FOR PUBLICATION WITHOUT THE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.

Quentin L. GLover,

Defendant-Appellant.

___________________________

November 22, 2016

Submitted October 11, 2016 Decided

Before Judges Yannotti and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 14-03-0511.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Quentin L. Glover was arrested in Atlantic City after he fled from police officers who were investigating a report that he was chasing another individual with a gun. At the time of his arrest, defendant was found to be in possession of heroin, a handgun, and cash.

A grand jury indicted defendant on nine counts of second-, third-, and fourth-degree crimes related to the possession of heroin with the intent to distribute, possession of a handgun, and resisting arrest. Following the denial of a motion to suppress the seizure of the heroin, gun, and cash, defendant pled guilty to third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3), and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7. On the weapons conviction, defendant was sentenced to five years in prison with five years of parole ineligibility. He was also sentenced to a consecutive extended term of six years in prison with three years of parole ineligibility on the drug conviction. Defendant appeals the denial of his motion to suppress and his sentence. We affirm.

I.

The facts were developed at an evidentiary hearing, during which two Atlantic City police officers testified and defendant elected not to testify. The officers testified that on November 6, 2013, they were on patrol, in uniform, and in a marked police vehicle. At approximately 11:40 p.m., they observed a man running in the middle of the street. They stopped the man, who told them that someone was chasing him with a gun. The man then pointed in the direction of another man, who was later identified as defendant.

One of the officers stepped out of the patrol car, identified himself as a police officer, and began walking towards defendant. Defendant then ran away. The officers gave chase on foot for approximately one block and then tackled defendant. Defendant continued to struggle and resist arrest by turning and not giving his hands to the officers. During that struggle, one of the officers observed a gun in defendant's back waistband and yelled a warning to the other officer. The other officer then seized the handgun. Defendant was subsequently restrained and arrested. Incident to the arrest, defendant was searched and he was found to be in possession of 185 bags of heroin and $197 in cash. The handgun was a .40-caliber handgun, which was loaded with three hollow-point bullets. It was later determined that defendant had no permit for the gun and had previously been convicted of a crime that prohibited him from having weapons.

A grand jury indicted defendant for (1) third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); (2) third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); (3) fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1(a) and (b); (4) third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a); (5) second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); (6) fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); (7) fourth-degree possession of hallow-point bullets, N.J.S.A. 2C:39-3(f); (8) second-degree possession of a handgun while in the course of possessing a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:39-4.1; and (9) second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7.

Defendant moved to suppress the heroin, handgun, and cash seized from him. On the day the motion to suppress was scheduled, defendant and his public defender engaged in plea negotiations, but were unable to reach an agreement with the State. Defendant then announced that he no longer wanted his public defender to represent him and he planned to hire his own counsel. The trial judge ruled that the hearing would go forward and that defendant could hire new counsel after the hearing. The hearing then proceeded with defendant represented by the public defender.

After hearing the evidence, the trial court found that the police had reasonable articulable suspicion to make an investigatory stop, the police lawfully restrained defendant after he fled, and their observations during the flight and ensuing struggle gave them probable cause to arrest defendant. Thus, the trial court denied defendant's motion to suppress the seizure of the heroin, gun, and cash.

Thereafter, defendant negotiated a plea agreement with the State. Defendant did not hire his own lawyer; rather he continued to use an attorney hired by the public defender's office.1 Defendant pled guilty to third-degree possession of heroin and second-degree certain persons not to have a weapon. In the plea agreement, the State agreed to recommend an aggregate sentence of eleven years in prison with eight years of parole ineligibility. Specifically, the plea agreement stated: "11 years NJSP must serve 8[;] 5/5 certain persons + 6/3 brimmage[;] consecutive bc of 39-4.1 (dismissed)." Defendant was then sentenced in accordance with that plea agreement.

II.

On appeal, defendant makes four arguments

POINT I [DEFENDANT] WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL OF CHOICE WHEN THE JUDGE REFUSED TO GRANT A CONTINUANCE SO THAT HE COULD RETAIN PRIVATE COUNSEL PRIOR TO THE SUPPRESSION MOTION WITHOUT CAREFULLY CONSIDERING EACH OF THE FACTORS SET FORTH IN CASES SUCH AS STATE V. KATES.

POINT II THE POLICE DID NOT POSSESS REASONABLE SUSPICION SUFFICIENT TO ORDER [DEFENDANT] TO STOP, AND THE EVIDENCE OBTAINED AFTER OFFICERS TACKLED [DEFENDANT] WAS NOT SUFFICIENTLY ATTENUATED FROM THE TAINT OF THE UNCONSITUTIONAL STOP TO JUSTIFY IT[S] ADMISSION INTO EVIDENCE.

POINT III THE CERTAIN-PERSONS CONVICTION MUST BE VACATED BECAUSE [DEFENDANT] POSSESSED THE WEAPON WITHIN THE PERIOD OF AMNESTY PROVIDED BY 2 013 N.J. LAWS 117 2. (Not Raised Below).

POINT IV THE SIX-YEAR SENTENCE FOR POSSESSION OF NARCOTICS WITH THE INTENT TO DISTRIBUTE IS ILLEGAL BECAUSE THE STATE FAILED TO SEEK AN EXTENDED TERM, AND THE JUDGE ERRED IN IMPOSING A CONSECUTIVE SENTENCE FOR THE CERTAIN-PERSONS OFFENSE WITHOUT CONDUCTING AN ADEQUATE ANALYSIS PURSUANT TO STATE V. YARBOUGH, SUGGESTING THAT A CONSECUTIVE SENTENCE WAS REQUIRED UNDER THE PLEA AGREEMENT.

We reject each of defendant's arguments and will address each argument in turn.

A. The Request for New Counsel

Under the Sixth Amendment of the United States Constitution, a criminal defendant has a right to counsel, and if defendant cannot afford to hire his or her own counsel, counsel will be appointed. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). If a defendant can afford to hire counsel, the right to counsel includes the right to "a fair opportunity to secure counsel of his [or her] own choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58, 77 L. Ed. 158, 162 (1932); State v. Miller, 216 N.J. 40, 62 (2013). When counsel is appointed, a defendant does not have the right to select a particular counsel, nor does such a defendant have the right to have counsel "changed at his [or her] whim." Miller, supra, 216 N.J. at 63 (quoting State v. Wiggins, 291 N.J. Super. 441, 451-52 (App. Div.) certif. denied, 146 N.J. 568 (1996)).

The right to counsel of one's choice is not absolute. State v. Kates, 216 N.J. 393, 396-97 (2014). The trial courts retain "wide latitude in balancing the right of counsel of choice against the demands of its calendar." Miller, supra, 216 N.J. at 397; United States v. Gonzalez-Lopez, 548 U.S. 140, 152, 126 S. Ct. 2557, 2565-66, 165 L. Ed. 2d 409, 421 (2006). That balancing includes "an intensely fact-sensitive inquiry." State v. Hayes, 205 N.J. 522, 538 (2011).

"There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances presented in every case, particularly in the circumstances presented to the trial judge at the time the request is denied." Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 850, 11 L. Ed. 2d 921, 931 (1964). The factors to be considered include

The length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether defendant contributed to the circumstance which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case.

[Hayes, supra, 205 N.J. at 538 (quoting State v. Furgeson, 198 N.J. Super. 395, 402 (App. Div.) (adopting analysis of United States v. Burton, 584 F.2d 485, 490-91 (D.C. Cir. 1978), cert. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979)), certif. denied, 101 N.J. 266 (1985)).]

"If a trial court conducts a reasoned, thoughtful analysis of the appropriate factors, it can exercise its authority to deny a request for an adjournment to obtain counsel of choice." Kates, supra, 216 N.J. at 396-97. Consequently, a deprivation of the right to select counsel of choice only occurs "when the court mistakenly exercises its discretion and erroneously or arbitrarily denies the continuance to retain chosen counsel." Id. at 396 (quoting State v. Kates, 426 N.J. Super. 32, 47 (App. Div. 2012), aff d, 216 N.J. 393 (2014)).

Applying these principles, we find no abuse of discretion in the trial court's denial of defendant's request to adjourn the suppression hearing to obtain new counsel. Defendant had been appointed a public defender. His public defender filed a motion to suppress and he and his counsel appeared on the scheduled date for the hearing ready to proceed. The State also appeared with both its witnesses. Defendant and his counsel then spent several hours trying to negotiate a plea. When they were not successful, defendant for the first time informed his public defender that he wanted to hire new counsel.

The trial judge heard that application. The judge noted that the State was ready to proceed and that its two witnesses had been waiting for several hours. The judge also noted that the court had set aside time to hear the motion. Upon inquiry, the judge learned that defendant had not yet hired a new counsel, but stated that he planned to do so. When the judge asked defendant how he now had the resources to hire a private attorney after he represented that he was indigent and qualified for public defender, defendant stated that he had the money, but he did not want to use his own money if his public defender could negotiate a good deal for him.

Defendant never explained why he wanted new counsel and he did not identify any problem or concern with his public defender. The trial judge, therefore, found that defendant was "playing games" and was simply seeking to delay the hearing. Thus, having balanced the interests involved, the trial judge found that the need for the integrity of the judicial system outweighed defendant's belated request for an adjournment to hire new counsel.

Although it might have been the better practice for the trial judge to have set forth a more comprehensive analysis, the record supports the denial of the request for an adjournment. We also note that there has been no showing that new counsel would have presented something new or different at the suppression hearing. Consequently, we find no abuse of discretion by the trial judge.

B. The Stop of Defendant and the Seizure

In reviewing a motion to suppress, we defer to the trial court's factual and credibility findings, so long as those findings are "supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Deference is afforded because the "findings of the trial judge . . . are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "An appellate court should disregard those findings only when a trial court's findings of fact are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). The legal conclusions of a trial court are reviewed de novo. Id. at 263.

An investigatory stop is permissible if it is "reasonable and justified by articulable facts." State v. Coles, 218 N.J. 322, 343 (2014). The burden is on the State to show by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion. State v. Pineiro, 181 N.J. 13, 19-20 (2004). That reasonable suspicion standard requires "some minimum level of objective justification for making the stop." State v. Amelio, 197 N.J. 207, 211 (2008) (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). "The principal components of a determination of reasonable suspicion . . . [are] the events which occurred leading up to the stop . . ., and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to a reasonable suspicion . . . ." State v. Stovall, 170 N.J. 346, 357 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661-62, 134 L. Ed. 2d 911, 919 (1996)).

Applying these principles, we discern no basis for disturbing the trial judge's determination that the officers conducted a lawful investigatory stop. The officers encountered an individual who informed them that he was being chased by someone with a gun. That individual then pointed to defendant. When one of the officers identified himself, defendant fled. Those facts, when viewed from the standpoint of an objectionably reasonable police officer, established a reasonable suspicion that defendant was engaged in illegal activity.

Once the officers stopped defendant, he resisted arrest and, in the ensuing struggle, one of the officers observed a handgun. That additional information then provided probable cause for the defendant's arrest. State v. Brown, 205 N.J. 133, 144-45 (2011); State v. Marshall, 199 N.J. 602, 610 (2009). Finally, the search of defendant's person was lawful as incident to his arrest. State v. Minitee, 210 N.J. 307, 318 (2012). Thus, we discern no error in the denial of defendant's motion to suppress the seizure of the heroin, gun, and cash.

C. The Certain-Persons Conviction

Defendant argues he possessed the handgun during a period of "amnesty." Specifically, he relies on N.J.S.A. 2C:39-12, which was enacted in 2013 and established a 180-day period for individuals to surrender illegal handguns. N.J.S.A. 2C:39-12.

Initially, we note that defendant did not raise this argument before the trial court and, therefore, we review it for plain error. State v. Rose, 206 N.J. 141, 127 (2011). Consequently, unless the error "possess a clear capacity to bring about an unjust result," we will not consider it. State v. Singleton, 211 N.J. 157, 83 (2012) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Here, we find no plain error.

The 2013 amnesty law provided in pertinent part that

[a]ny person who has in his possession an assault firearm on the effective date of this act may retain possession of that firearm for a period of not more than 180 days after the effective date. During that time period, the possessor of the assault firearm shall

(1) transfer the assault firearm to any person lawfully entitled to own or possess such firearm;

(2) render the assault firearm inoperable; or

(3) voluntarily surrender the assault firearm pursuant to the provisions of N.J.S.A. 2C:39-12.

[L. 2013, c. 117 2a.]

Under N.J.S.A. 2C:39-12, a person will not be held criminally liable for possessing a weapon "if after given written notice of his intention to do so . . . he voluntarily surrenders the weapon, device, instrument or substance in question to [law enforcement]." Moreover, the required notice has to be received by law enforcement "before any charges have been made or complaints have been filed against such person for the unlawful possession of a weapon." Ibid.

Here, defendant provided no written notice to law enforcement. Thus, under the plain reading of the statute, he is not immune from prosecution.

D. The Sentence

Defendant argues that the six-year sentence for his drug conviction was illegal because the State allegedly failed to seek an extended term and the sentencing court erred in imposing consecutive sentences without conducting an adequate analysis.

Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). "The reviewing court must not substitute its judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). "At the time of the sentencing, the court must 'state reasons for imposing such sentence including . . . the factual basis supporting [its] finding of particular aggravating or mitigating factors effecting the sentence.'" Id. at 73 (quoting R. 3:21-4(g)). An appellate court must affirm a sentence unless

(1) the sentence 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 make the sentence clearly unreasonable so as to shock the judicial conscience."

[Id. at 70 (alterations in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Furthermore, when a defendant receives the sentence he bargained for, a presumption of reasonableness attaches to that sentence. Id. at 70-71.

The principal contention put forward by defendant is that the six-year prison term was an extended term under N.J.S.A. 2C:43-6(f), but the State did not file a motion for an extended term. The plea agreement, however, refutes that position. Under Rule 3:21-4(e), "the prosecutor's oral notice and the recordation of the extended term exposure in the plea form completed by defendant and reviewed on the record shall serve as the State's motion." In the plea agreement, the State agreed to recommend an extended term of six years in prison with three years of parole ineligibility for the drug conviction and a consecutive term of five years in prison with five years of parole ineligibility for the weapons conviction. Indeed, at his sentencing, defendant's counsel asked that defendant be sentenced in accordance with the plea, which he acknowledged called for eleven years in prison with eight years of parole ineligibility. Thus, the sentence was legal and we find no abuse of discretion.

Defendant also argues that the trial judge erred in imposing a consecutive sentence because he failed to conduct an adequate analysis of the Yarbough factors. State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1011, 106 S. Ct. 1195, 89 L. Ed. 2d 305 (1986). We reject this contention.

In Yarbough, the Court set forth the factors to be considered when deciding whether to impose consecutive or concurrent sentences. Id. at 643-44. The Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (1989).

Considering these criteria, the trial court properly imposed consecutive sentences because the court found that the weapon conviction was a separate crime from the drug conviction. We discern no abuse of discretion in the imposition of a consecutive sentence in this matter.

Affirmed.

1 At the suppression hearing, defendant was represented by an assistant public defender who thereafter took maternity leave. The public defender's office then retained a new attorney to represent defendant.