STATE OF NEW JERSEY v. RAFAEL RAMOS, III

NOT FOR PUBLICATION WITHOUT THE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.

RAFAEL RAMOS, III,

Defendant-Appellant.

________________________________________________________________

February 6, 2017

Submitted July 5, 2016 Decided

Before Judges Carroll and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-09-1606.

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

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

Defendant, Rafael Ramos, III, appeals from his judgment of conviction that the Law Division entered after he pled guilty to second-degree drug offenses. Before defendant pled guilty, the court denied his motion to suppress evidence. After his plea, the court sentenced defendant to five years imprisonment with a two-year period of parole ineligibility in accordance with his plea agreement. The charges against defendant arose after police stopped the vehicle in which he was a passenger for an expired registration and for being in a suspicious location. After questioning the driver and defendant, the officer obtained the driver's1 consent to search the vehicle and found controlled dangerous substances (CDS) inside a concealed bag.

On appeal, defendant challenges the warrantless search of the vehicle, arguing that while the initial stop was proper, the questioning that ensued converted the stop into a de facto arrest, which voided the driver's consent to allow the vehicle to be searched. Defendant also challenges his sentence's two-year period of parole ineligibility, contending that the court mistakenly believed it did not have discretion to either sentence him to a shorter period of parole disqualification or no period at all. We disagree and affirm.

The facts developed at the suppression hearing and found by the court were not disputed and can be summarized as follows. At the hearing, four officers testified Tinton Falls Police Officer and Canine Handler Christopher Whalen, Detective Corporal John Tallarico, Officer James Sapia, and Lieutenant Gerald Turning.2 On April 16, 2012, Tallarico observed the driver's SUV leaving a wooded area, which bore a "No Trespassing" sign. While following the SUV, Tallarico ran the license plate and determined the SUV's registration was expired. According to Tallarico, he stopped the vehicle because he did not see the vehicle drive down the road, which was not frequently used, and because the registration was expired.

After pulling over the SUV, Tallarico approached the passenger side where defendant was seated. In response to the officer's request, the driver produced a driver's license, an expired registration, and an expired insurance card. Tallarico requested that the driver exit the vehicle for further questioning regarding why she was coming from the wooded area. After exiting and moving behind the SUV, the driver stated that she was visiting her friend who lived in the last house on the road, and that her friend invited her and defendant over for some beers, which they drank in the woods, and that they were there for about forty-five minutes. Tallarico who was familiar with the area and the driver's friend from having responded to several drug-related and domestic violence incidents at the residence explained that the property did not belong to her friend and that she and defendant had been trespassing. He also informed her that her registration was expired.

While Tallarico was speaking to the driver, another officer arrived on the scene as backup and remained with her while Tallarico questioned defendant. Defendant stated he was in the woods because he lent his friend money and was returning to collect the money owed to him. Defendant also stated he knew this friend since high school and also knew his friend had a drug problem. According to defendant, he and co-defendant were in the woods for about five minutes, and he denied having consumed alcohol that day.

Tallarico returned to the driver to make further inquiry regarding her and defendant's conflicting stories. During the conversation, he asked if there were any CDS in the SUV. The driver initially did not answer, became nervous, gave a non-responsive answer, but eventually stated that there may be cocaine in the vehicle, but she did not know where or in what quantity.

Tallarico asked for consent to search the SUV, which the driver provided verbally. He then retrieved a "Consent to Search" form from his patrol car, read it to her, and allowed her to review it before she signed it. The driver stated she understood all of her rights, and she signed the form in the presence of Tallarico. The time between the initial stop and when the consent form was signed was about fifteen minutes.

The officers began to search the vehicle, but because it contained numerous personal items, Tallarico called the canine officer, Whalen, to conduct a more focused and expeditious search of the vehicle. Whalen and his canine partner arrived and began a search of the SUV. The canine alerted to the center console in the middle row of seats, as well as the cup holder of the passenger side of the third row of seats. The officers popped the cup holder out of its frame to discover a void between the wheel well and frame, which contained a handbag. A search of the handbag revealed powdered and rock-like substances which were later determined to be heroin, crystalized cocaine, and powdered cocaine as well as glassine bags.

Defendant and the driver were arrested. They were both indicted for third-degree possession of CDS (cocaine), N.J.S.A.2C:35-10(a)(1), (count one); second-degree possession of CDS (cocaine) with intent to distribute, N.J.S.A.2C:35-5(b)(2), (count two); third-degree possession of CDS (heroin), N.J.S.A.2C:35-10(a)(1), (count three); and second-degree possession of CDS (heroin) with intent to distribute, N.J.S.A.2C:35-5(b)(2), (count four).

Defendant filed a motion to suppress the evidence seized during the search of the SUV. After conducting the hearing, Judge John T. Mullaney, Jr. entered the order denying defendant's motion, supported by a fifteen-page written decision. In his decision, the judge recited the facts he found from the officers' testimony and, relying on State v. Locurto, 157 N.J.463, 470 (1999) and State v. Bernokeits, 423 N.J. Super. 365, 370 (2011), found Tallarico "had reasonable suspicion to believe that . . . [the driver] committed the Title 39 offense of operating a motor vehicle with an expired registration." Relying on State v. Alston, 88 N.J.211, 228 (1981), the judge found the driver and defendant had standing to challenge the search of the SUV and the handbag because the seized property satisfied an element of the charged possessory crimes.

Addressing the issue of the driver's consent to search, the judge explained that consent is an exception to the warrant requirement and that in order to be valid, the State must prove the person giving consent knew he or she had the right to refuse consent. He also stated, "Where a defendant is read a consent form and . . . defendant signs it, New Jersey courts have found . . . defendant's consent is voluntary and knowing, and therefore, valid." The judge concluded the driver provided knowing and voluntary consent to search her SUV.

Judge Mullaney also found Tallarico's questioning that elicited conflicting responses justified his "expand[ing] the scope of the stop and ask[ing] questions beyond the Title 39 violation." Moreover, relying on Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1804, 114 L. Ed. 2d 297, 303 (1991), the court concluded the search of the handbag found inside the vehicle was within the scope of the driver's general consent to search.3 After she provided her consent, Tallarico was justified in opening the handbag because it might have reasonably contained the object of the search CDS. Finally, the judge found defendant's argument that his due process rights were violated by the officer's alleged failure to video record the traffic stop was without merit.

After the judge entered the order denying defendant's suppression motion, defendant pled guilty to two counts of second-degree possession of CDS with intent to distribute, N.J.S.A.2C:35-5(b)(2), in exchange for dismissal of the other charges and a recommended sentence of five years imprisonment with two years of parole ineligibility. In the plea agreement, defendant acknowledged that he understood he was exposed to sentencing in the extended term range and that the agreement called for "a lesser sentence or period of parole ineligibility than would otherwise be required."

At the plea hearing, both the judge and defendant's attorney explained to him that the charges against him exposed him to an extended term because he had a prior conviction for possession with the intent to distribute and that he would be serving a two-year period of parole ineligibility. His attorney also explained that, assuming the judge accepts his plea agreement, he will not have the discretion to sentence defendant to a lower term than what he agreed to in his plea agreement. Defendant stated he understood his exposure and did not object to the period of parole disqualification or raise any questions about it.

Judge Mullaney sentenced defendant in accordance with the plea agreement to two concurrent terms of five years with the two-year parole disqualifier, without any objection. He entered defendant's judgment of conviction and this appeal followed.

On appeal, defendant argues

POINT I

THE VEHICLE'S EXPIRED REGISTRATION WAS THE ONLY VALID BASIS FOR THE MOTOR VEHICLE STOP. THEREFORE, WHEN THE OFFICER PROLONGED THE STOP TO QUESTION THE VEHICLE'S OCCUPANTS REGARDING TRESPASS AND NARCOTICS, THE STOP WAS CONVERTED INTO AN UNLAWFUL, DE FACTO ARREST, THEREBY VOIDING [CO-DEFENDANT'S] SUBSEQUENT CONSENT TO SEARCH.

POINT II

THE TWO-YEAR PAROLE DISQUALIFIER SHOULD BE VACATED.

A. THE TWO-YEAR PAROLE DISQUALIFIER WAS NOT MANDATORY.

B. THE IMPOSITION OF A DISCRETIONARY PAROLE DISQUALIFIER WAS BOTH UNWARRANTED AND UNCONSTITUTIONAL.

i. THE JUDGE DID NOT MAKE THE REQUISITE FINDINGS TO SUPPORT THE IMPOSITION OF A DISCRETIONARY PAROLE DISQUALIFIER.

ii. N.J.S.A. 2C:43-6b VIOLATES THE SIXTH AMENDMENT BY ALLOWING FOR INCREASED PUNISHMENT BASED ON A FACT FOUND BY A JUDGE, RATHER THAN A JURY.

We begin by noting review of the denial of a suppression motion is limited. See State v. Handy, 206 N.J. 39, 44 (2011). A trial court's findings are entitled to deference if supported by sufficient credible evidence. State v. Scriven, 226 N.J. 20, 32-33 (2016). We "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243-44 (2007) (citations and internal quotation marks omitted). We will "not disturb the trial court's findings merely because '[we] might have reached a different conclusion' . . . or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we will] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162.

Issues of law, however, are reviewed de novo. State v. Gandhi, 201 N.J. 161, 176 (2010). The question of whether the trial court's judicially-found facts warrant suppression is purely legal, and the trial court's decision is subject to plenary review. Handy, supra, 206 N.J. at 45.

Applying the standard of review, we affirm substantially for the reasons stated in Judge Mullaney's comprehensive written decision. We add only the following comments.

Defendant does not dispute that Tallarico properly stopped the SUV for an expired registration. Instead, he argues Tallarico lacked reasonable suspicion to believe the occupants committed a trespass and he was not justified in extending his inquiry to question the driver about narcotics. We disagree.

We are satisfied there is sufficient evidence to support Tallarico's broadening the scope of his questioning of the driver based upon her and defendant's conflicting accounts of their actions. During a stop, an "officer may also ask 'routine' questions of the vehicle's occupants, such as where they are going and coming from, and for what purpose." State v. Baum, 393 N.J. Super. 275, 286-87 (App. Div. 2007) (citing United States v. Ramos, 42 F.3d 1160, 1163 (8th. Cir. 1994),cert. denied, 514 U.S. 1134, 115 S. Ct. 2015, 131 L. Ed. 2d 1013 (1995)), aff'd as modified, 199 N.J. 407, 424 (2009). Where the occupants "advance[] conflicting versions of their travels . . . the circumstances 'give rise to suspicions unrelated to the traffic offense, [so the] officer may broaden [the] inquiry and satisfy those suspicions.'" Id. at 287 (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)). "During this broadened inquiry, the questioning may be accusatory and designed to elicit incriminating responses . . . however, the officers must pursue a means of investigation that is "likely to confirm or dispel their suspicions quickly." Ibid. (quoting Dickey, supra, 152 N.J. at 476).

Judge Mullaney correctly found that under the totality of the circumstances, including the inconsistencies in the driver's and defendant's versions of where they had been and their activities, Tallarico had reasonable suspicion to expand the scope of his questioning, including about whether there were CDS in the vehicle. See e.g., Baum, supra, 393 N.J. Super. at 290.

Turning next to defendant's arguments about his sentence, we begin by acknowledging that our review of sentencing determinations is limited and is governed by the "clear abuse of discretion" standard. SeeState v. Fuentes, 217 N.J.57, 70 (2014); State v. Roth, 95 N.J.334, 363 (1984). "[A] reviewing court is not[, however,] free to ignore an illegal sentence." State v. Moore, 377 N.J. Super. 445, 450 (App. Div.), certif. denied, 185 N.J.267 (2005).

Defendant argues his period of parole ineligibility should be vacated because the court had the discretion to impose a shorter period or no period of parole disqualification. We again disagree.

Defendant's guilty plea to second-degree CDS charges, N.J.S.A. 2C:35-5(b)(2), exposed defendant to sentencing in the second-degree range five to ten years. N.J.S.A. 2C:43-6(a)(2). However, because he had a prior conviction for the same offense, he was also exposed to an extended term and to the imposition of a mandatory period of parole ineligibility of between one third and one half his sentence or three years, whichever was greater. N.J.S.A. 2C:43-6(f). As a result, his exposure on each count increased from to ten to twenty years, N.J.S.A. 2C:43-6(a)(1), with a parole disqualifier. N.J.S.A. 2C:43-6(f).

Pursuant to defendant's plea agreement, however, the prosecutor recommended a five-year term with a period of two years of parole ineligibility, less than that which the court was required to impose, but permitted when incorporated into a plea agreement. See Ibid. (incorporating N.J.S.A. 2C:35-12 which authorizes a reduced period where "the defendant has pleaded guilty pursuant to a negotiated agreement . . . which provides for a lesser sentence, [or] period of parole ineligibility") (emphasis added)). When the court accepts the plea agreement, it cannot "impose a . . . lesser period of parole ineligibility . . . than that expressly provided for under the terms of the plea . . . agreement." N.J.S.A. 2C:35-12; see also State v. Thomas, 253 N.J. Super. 368, 373 (App. Div. 1992).

We are also unpersuaded by defendant's argument that the parole ineligibility period should not have been imposed because the State did not file a motion seeking that defendant be sentenced to an extended term. N.J.S.A. 2C:43-6(f). Contrary to defendant's contention, the State was not required to file the motion because the plea agreement did not recommend sentencing to an extended term and the period of parole disqualification was less than the minimum prescribed by statute. Even if the plea agreement called for sentencing to an extended term, the agreement itself would have served as the State's motion. See R. 3:21-4(e).

To the extent we have not specifically addressed defendant's remaining arguments, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 The driver was charged with the same offenses as a co-defendant in the same indictment as defendant.

2 Defendant called officers Sapia and Turning as witnesses.

3 New Jersey's constitution allows for the same scope of the search, where a passenger does not claim ownership of the container located within the driver's vehicle. See State v. Hampton, 333 N.J. Super. 19, 29 (App. Div. 2000) ("a law enforcement officer may rely on a driver's apparent authority to consent to a search of the car and its contents, unless there is evidence to suggest that the driver does not own the property the officer wants to search") (citing State v. Maristany, 133 N.J. 299, 306-07 (1993); State v. Suazo, 133 N.J. 315, 320-21 (1993)).