STATE OF NEW JERSEY v. ALI KING

NOT FOR PUBLICATION WITHOUT THE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.

ALI KING, a/k/a ALI GREEN, QUADEER

GREEN, RASHEED A. HUNT, THADDEUS

HUNT, ALIRASHEED KING, RASHEED A.

KING, RASHEEN KING, RASHID KING,

ALI R. KINTG and ALI K. RASHEED,

Defendant-Appellant.

______________________________________

December 21, 2016

Submitted August 16, 2016 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-02-0344.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence seized without a warrant, defendant Ali King pled guilty to two counts of possession of CDS with intent to distribute,N.J.S.A.2C:35-5a(1), and was sentenced in accord with a negotiated agreement. He appeals, challenging the denial of his motion. Finding no error, we affirm.

The State presented the testimony of two Essex County Sheriff's detectives at the suppression hearing. Detective Andino testified he was conducting surveillance in an "unconventional vehicle" as part of a "[g]eneral narcotics investigation" with several other officers on August 31, 2012. A little before 10:00 p.m., he saw a man, later identified as defendant, walking back and forth "basically with no apparent destination in front of an abandoned structure on Westend Avenue [in Newark]." The detective described the structure as a "boarded up" house. He claimed no one lived there and there was garbage in the driveway.

According to the detective, an unidentified male appeared and engaged defendant in a brief conversation. The detective then watched as defendant walked over to the south side of the abandoned house, lifted up a piece of the vinyl siding and pulled out a clear bag. Defendant took some items from the bag, which he handed over to the unidentified man in exchange for "U.S. paper currency."

The men parted, walking in opposite directions. Detective Andino radioed the other units, and he and two other officers followed defendant around the corner in their vehicles. The detectives and their backup converged on defendant, displaying their badges and identifying themselves as police.

Detective Andino and his partner left defendant with the other officers and walked back to defendant's stash location on the side of the abandoned house. Walking to where they had watched defendant retrieve the bag, Detective Andino felt around the vinyl siding, until he found the piece defendant had removed. Behind the siding he found the bag of drugs, later determined to contain both cocaine and heroin, where defendant had hidden it. A search of defendant incident to his arrest revealed seventy-five dollars in his left front pocket. The buyer was not found.

Defendant's counsel, while noting defendant "may not have the legal means to challenge the actual stash location," attacked the credibility of the detectives, contending there was no "probable cause or any credible testimony to show that any hand to hand transaction took place." The judge rejected the argument, finding on the basis of the testimony that Detective Andino had an "unobstructed surveillance point to observe the area." The judge found the detective observed defendant take items from a stash location behind the vinyl siding "and exchange those items for money." After other officers detained defendant, the detective "returned to the stash location" and found suspected narcotics in the bag he had observed in defendant's hands "just moments earlier." The judge concluded on the basis of those findings that the officers had probable cause to believe defendant was involved in criminal activity.

Defendant raises two issues on appeal.

POINT I

THE SEIZURE OF DRUGS FROM THE HOME WAS UNCONSTITUIONAL BECAUSE THE STATE FAILED TO MEET ITS HEAVY BURDEN OF PROOF THAT THE HOME WAS ABANDONED AND EXIGENT CIRCUMSTANCES EXISTED. U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. 1, PARA. 10. (Not Raised Below).

POINT II

THE DETECTIVES DID NOT HAVE PROBABLE CAUSE TO ARREST MR. KING AND, THEREFORE, THE SEARCH OF HIS PERSON WAS UNCONSTITUTIONAL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. 1, PARA. 10.

Our standard of review on a motion to suppress is limited. State v. Gamble, 218 N.J. 412, 424-25 (2014). We defer to the trial court's factual findings on the motion, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007). "Deference to these factual findings is required because those findings '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.'" Gamble, supra, 218 N.J. at 424-25 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Our review of the trial court's application of the law to the facts, of course, is plenary. State v. Hubbard, 222 N.J. 249, 263 (2015).

Having reviewed the motion transcript and the governing law, defendant has given us no cause to disturb the judge's factual findings or legal conclusions here. The judge's finding that Detective Andino had probable cause to arrest defendant based on the detective's observations of defendant exchanging some small items he took from a clear plastic bag hidden behind vinyl siding for money with a man he met on the street, was supported by the evidence in the record. See State v. Gibson, 218 N.J. 277, 292 (2014) (defining probable cause as "a well grounded suspicion that a crime has been or is being committed") (quotation omitted).

Defendant did not challenge the seizure of the drugs from behind the vinyl siding in the trial court, going so far as to suggest that he was without "the legal means to challenge the actual stash location." The State is not required to "disprove issues not raised by the defense at a suppression hearing." State v. Witt, 223 N.J. 409, 418 (2015). As the Court has explained, "[f]or sound jurisprudential reasons, with few exceptions, 'our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available.'" Id. at 419 (quoting State v. Robinson, 200 N.J. 1, 20 (2009)); see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Moreover, even had defendant properly preserved the issue for appeal, the result would not be different. Detective
Andino made his observations of defendant's stash location from a public street. "[A] police officer lawfully in the viewing area [is not required to] close his eyes to suspicious evidence in plain view." State v. Johnson, 171 N.J. 192, 208 (2002) (quoting State v. Bruzzese, 94 N.J. 210, 237 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).

As we held in State v. Ford, 278 N.J. Super. 351, 357 (App. Div. 1995), "given the observation of the contraband and its place of attempted concealment in an exterior portion of the house accessible by anyone from the outside without entering the house, no compelling constitutional interests require suppression of the seized contraband from its known location." There was no need for the State to prove either that the house was abandoned or exigent circumstances.

Affirmed.