STATE OF NEW JERSEY v. JASON CHARLES

NOT FOR PUBLICATION WITHOUT THE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.

JASON CHARLES,

Defendant-Appellant.

___________________________________

September 1, 2016

Argued April 6, 2016 Decided

Before Judges Fuentes and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-03-0284.

Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Keenan, of counsel and on the brief).

Alycia I. Pollice-Beyrouty, Special Deputy AttorneyGeneral/Acting Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Acting Mercer County Prosecutor, attorney; Laura Sunyak, Special Deputy AttorneyGeneral/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On March 18, 2011, a Mercer County Grand Jury returned Indictment No. 11-03-0284 charging defendant Jason Charles with: third degree possession of cocaine, N.J.S.A. 2C:35-10a(1), Count 1; first degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), Count 2; and third degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, Count 3. After unsuccessfully moving to suppress the evidence seized by law enforcement agents based on the execution of an anticipatory search warrant, defendant pled guilty to all counts in the indictment, without entering into a plea agreement with the State.

The court sentenced defendant to an aggregate term of fourteen years, with six years of parole ineligibility.1 In this appeal, defendant argues the trial court erred in denying his motion attacking the validity of the anticipatory search warrant and denying the motion to suppress the evidence seized thereunder. Defendant also challenges the sentence imposed by the trial court as excessive and legally deficient under the doctrine of merger. N.J.S.A. 2C:1-8a(1). We affirm.

We gather the following facts from the record developed at the plenary hearing conducted by the trial court in connection with defendant's motion to suppress.

Mercer County Prosecutor's Office (MCPO) Detective Eric Hastings was assigned to the Special Investigations Unit (SIU) in connection with the investigation of defendant Jason Charles. On November 29, 2010, Hastings submitted an affidavit in support of his application for an Anticipatory Search Warrant to a Superior Court Judge. He averred that he had probable cause to believe that an "illegal drug operation" existed involving the possession of dangerous narcotics with intent to distribute. This illicit drug operation was being conducted in a particular location in the Township of Hamilton. Hastings further averred that evidence of these illegal activities "will be found within said premises."

Hasting described how the drug operation carried out its business.

The Federal Express package is a white Federal Express box with a clear plastic cover holding the packing slip listing the recipient's name as "Steven Samuel," [described a particular residence] and bearing sender as "Kenneth Mack, Unique Travel Public Market Complex St. John's Antigua." The Federal Express package has a tracking number of . . . attached to the packaging slip. The entire package weighs approximately 1821 grams. The entire package measures approximately 12.5 inches X 18 inches X 3 inches. The package was delivered to the Mercer County Prosecutor's Office, Special Investigations Unit by ICE, Agent Carlos Morales.

Hastings then described in great detail the location where the package will be delivered. Hastings provided the following facts as a basis to find probable cause

On Monday, November 29, 2010, I received information from Sergeant Michael Novembre of the Mercer County Prosecutor's Office, Special Investigations Unit that Immigration and Customs Enforcement received information of a package of Controlled Dangerous Substance (cocaine) that was scheduled to be delivered to [address of location] Hamilton, New Jersey 08619. Sergeant Novembre supplied me with ICE Agent Carlos' contact information. I then contacted Agent Morales and he told me the following

Agent Morales learned from Special Agent Robert Kelly, Puerto Rico, ICE that S/A Kelly seized approximately 520 grams of suspected CDS (cocaine) on November 23, 2010 through a random search of packages leaving St. Johns, Antigua and being delivered to New Jersey. Through the random search, canine CG93 Malone [was] alerted to the odor of narcotics and same was opened and revealed a laptop bag with thick padding. Upon inspection, an envelope wrapped in carbon paper revealed a plastic bag with a white powdery substance that was then field tested and reacted positive for cocaine. S/A Kelly was notified at that time. The cocaine was seized and placed into evidence bag [number] . . .

Agent Morales informed me that he has custody of the package now and will deliver the package to me at the Mercer County Prosecutor's Office, Special Investigations Unit.

[A street address] in Hamilton is an apartment complex. A search of Accurint, which is an internet search engine that provides the identity of individuals who reside at a particular address, reveal that there is no person named "Steven Samuel" who resides [at the address].

Detective Hastings explained and described the steps he took using a canine team from the Mercer County Sheriff's Department to confirm the package received from Agent Morales contained cocaine. He also averred that based on his training and experience, he was aware how illicit narcotics are transported from one location to another using legitimate package delivery companies. Hastings intended to conduct "a controlled delivery of the aforesaid package addressed to Steven Samuel [at a specific street address] in Hamilton on November 29, 2010.

Thereafter, I respectfully request permission to execute a search warrant for the premises [described by a specific address] if and when the specifically described events which gives rise to probable cause actually occurs so as to protect against premature execution of the search warrant: (1) Upon delivery of the aforesaid package an individual(s) acknowledge receipt of said package and signs for the same, and (2) Thereafter said individual(s) takes physical custody of said package and conveys same into the described premises . . . .

Based on the description provided by Detective Hastings, the Superior Court Judge authorized law enforcement agents "to open and search the Federal Express package, as previously described." The Judge also authorized law enforcement to seize and take custody of any illicit narcotics, including paraphernalia. The Judge provided the hours the warrant could be executed from 12:00 a.m. to 11:59 p.m., and directed its execution to take place within ten days of November 29, 2010.

MCPO Detective Anthony Petracca delivered the Federal Express package to the specified location. Detective Petracca wore a Federal Express uniform and drove an unmarked cargo van. He also had "a clipboard with some papers," a pen, and "a small device that appears to be like a scanner." Detective Petracca was also armed with his service weapon, a cellphone, and his law enforcement credentials concealed under the Federal Express uniform. He was instructed "to attempt to make contact with apartment 1A."

Although the package was intended for "Steven Samuel," Petracca was aware that "a different individual was potentially residing in the apartment." When asked for the name of that individual, Petracca responded: "That was going to be the defendant, Mr. Charles." Petracca testified that once a person signed for and took custody of the package, he "was supposed to provide a verbal cue" to his sergeant who was monitoring the conversation with his cellphone from a nearby location. Once that occurred, his role was to allow the officers executing the search warrant to enter the apartment.

Petracca testified that he entered the apartment building's foyer area and walked up the staircase to the first floor landing. Once he reached the landing, the door for apartment 1A "was immediately to the left." The following colloquy describes what transpired next

Q. Upon standing at that door facing the doorway, what's the next thing that you did?

A. I knocked on that door.

Q. And what happened?

A. Someone asked, "Who's there?"

Q. And what did you say?

A. Fed Ex delivery.

Q. What happened next?

A. The door was opened up.

Q. And who opened the door up?

A. The defendant, Mr. Charles.

Q. And what happened next?

A. Brief conversation. Explained I was delivering a package. I was asked why I wasn't using a scanner. I explained to Mr. Charles [that] I had a problem with my scanner earlier [in] the day; it wasn't working.

Q. When [he] asked you why you weren't using a scanner, you said you had a problem with it. What happened next?

A. I advised him that our back-up method for doing deliveries would be using traditional paper.

Q. And did you have traditional paper with you?

A. Yes. I had sheets prepared.

Q. And at that point was he the person whose name was on the package?

A. No. Different person's name was on the package.

Q. And did you have any conversation with regard to that?

A. Just stated it was a package for Steven Samuel.

Q. At that point what happened?

A. Mr. Charles signed for the package. [I] asked him for his spelling of his name. He spelled it for me. I wrote it on the sheet.

Q. I'll stop there. When you talked about Steven Samuels, did he tell you whether he used to live there or any information with regard to that? Do you recall?

A. He stated something to the effect that he had lived there but - - that was the extent of it.

. . . .

Q. And at that point did he take - - well, let me ask you this. Once he signed for the package, where was he standing?

A. He was standing at the top of the staircase. I'm facing the door. The door [swung] inward. If I can use this as an example. I'm standing here with the package. This would be the door. The door swings in and he was standing within the swing area of the doorway.

PROSECUTOR: And for the record, your Honor, the witness is standing facing . . . the steps up towards the witness box indicating in front of him that the door would be swinging in towards the courtroom basically as though the courtroom [were] the apartment and that the defendant was standing within the swing of the doorway on the inside of the apartment.

THE COURT: That's a fair summary of the testimony.

Immediately after defendant signed the paper acknowledging receipt of the package, Petracca testified that he gave the verbal cue: "Thank you for your signature." This signaled the backup officers to effectuate the arrest.

Defendant called Jeffrey Armstrong as a witness in the suppression hearing. Armstrong resided in the apartment directly across the hall from defendant's apartment. Armstrong knew defendant as neighbors for a number of years. He testified that he was in his apartment with his two daughters when the police executed the anticipatory warrant. He looked through his apartment door's peephole and saw "the Fed Ex guy" standing on the stairs and defendant standing "outside the doorway." According to Armstrong, the Fed Ex delivery man never crossed defendant's threshold.

The motion judge found Detective Petracca's testimony "credible in all respects." The judge specifically noted that when Petracca was asked whether the package "crossed the imaginary plane between the landing and the apartment," Petracca simply responded: "Yes." The motion judge concluded that the officers who executed the anticipatory search warrant adhered to the conditions imposed by the judge who issued it. As a corollary, the motion judge rejected Armstrong's account of the events as not credible.

Against this record, defendant now appeals raising the following arguments

POINT I

THE ANTICIPATORY WARRANT IS INVALID BECAUSE THE SUPPORTING AFFIDAVIT FAILED TO PROVIDE A BASIS FOR FINDING THAT IT WAS PROBABLE THAT THE TRIGGERING CONDITIONS WOULD OCCUR.

POINT II

THE COCAINE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE POLICE EXECUTED THE ANTICIPATORY WARRANT PRIOR TO OCCURRENCE OF ALL OF THE TRIGGERING CONDITIONS.

POINT III

THE SENTENCING JUDGE ERRED IN FAILING TO MERGE THE THIRD-DEGREE SCHOOL ZONE DISTRIBUTION CHARGE WITH THE FIRST-DEGREE DISTRIBUTION CHARGE.

POINT IV

A FOURTEEN-YEAR SENTENCE FOR A NON-VIOLENT DRUG CRIME IS MANIFESTLY EXCESSIVE FOR A DEFENDANT WITH NO PRIOR CRIMINAL CONVICTIONS.

We reject defendant's arguments as described in Point I, II, and IV. We agree with defendant that the sentencing judge erred as a matter of law in not merging the conviction of third degree possession of cocaine under N.J.S.A. 2C:35-10a(1), with the conviction of third degree possession of cocaine with intent to distribute within 1000 feet of school property under N.J.S.A. 2C:35-7. N.J.S.A. 2C:1-8a(10).

We begin by reaffirming our long-settled standard of review.

Appellate courts reviewing a grant or denial of a motion to suppress must defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record. We defer to those findings of fact 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." 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) (alteration in original) (citations omitted)(quoting State v. Johnson, 42 N.J. 146, 161 (1964))].

Here, we discern no basis to disturb the motion judge's factual findings, which were made in large part on the judge's assessment of the witnesses' credibility.

In State v. Ulrich, 265 N.J. Super. 569 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994), our colleague Judge Pressler referred to the technique of anticipatory warrants as "singularly appropriate where, as here, there is a 'reasonable probability that the contraband will reach its destination before execution of the warrant because of the controlled delivery by the authorities.'" Id. at 574 (quoting State v. Mier, 147 N.J. Super. 17, 21 (App. Div. 1977)). She noted that the use of these warrants are "constitutionally unobjectionable if the events giving rise to probable cause occur before execution of the warrant." Ibid.

That is exactly what occurred here. The ICE investigation that led Detective Hastings to obtain the necessary information to support a finding of probable cause for the issuance of the anticipatory warrant occurred prior to the execution of the warrant. Because the officers who executed the warrant adhered to the conditions expressly stated in the warrant, the search is presumptively valid. See State v. Robinson, 200 N.J. 1, 7-8 (2009) (citing State v. Valencia, 93 N.J. 126, 133 (1983)).

The mere acceptance of the package under the circumstances of this case may have been insufficient to infer that defendant was aware of the illicit nature of its content. As Judge Pressler noted in State v. Richards, 155 N.J. Super. 106, 113-114 (App. Div.), certif. denied, 77 N.J. 478 (1978),

knowing or intentional possession cannot be inferred merely from the fact of delivery to defendant by mail or common carrier of a sealed package containing the illegal goods, and . . . acceptance of the package by itself cannot yield an inference of knowledge by the recipient of its contents. Rather, something more by way of attendant circumstances must be shown from which an inference can be drawn that defendant also knew what was in the package and intended to assert possessory control over it.

. . . .

We note preliminarily that the validity of the issuance of the search warrant and its execution have not been here challenged. We have heretofore sustained the validity of a search warrant issued to law enforcement authorities in connection with their controlled mail delivery to the named recipient of a package which they know contains controlled dangerous substances, even where the issuance of the warrant is only in anticipation of a controlled delivery not yet accomplished. But existence of probable cause for the issuance of a search warrant is not dispositive of the question, not before addressed by our courts, of the nature and quantum of proof necessary to sustain a conviction of a possessory offense factually predicated upon a controlled mail delivery of contraband.

(Emphasis added).

However, by pleading guilty, defendant waived the right to raise this argument on direct appeal.

Defendant's argument attacking the length of the sentence imposed by the court lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We are nevertheless compelled to remand the matter for the trial judge to amend defendant's judgment of conviction to show the conviction of third degree possession of cocaine under N.J.S.A. 2C:35-10a(1), merged with the conviction of third degree possession of cocaine with intent to distribute within 1000 feet of school property under N.J.S.A. 2C:35-7. State v. Dillihay, 127 N.J. 42, 51 (1992).

Affirmed and remanded to amend the judgment of conviction.

1 The aggregate term consisted of a four-year term of imprisonment on Count 1; a fourteen-year term of imprisonment, with six years of parole ineligibility on Count 2; and a five-year term of imprisonment with three years of parole ineligibility on Count 3; all to run concurrent to each other.