STATE OF NEW JERSEY v. ANDRE D. HENDRICKS

NOT FOR PUBLICATION WITHOUT THE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-5497-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANDRE D. HENDRICKS, a/k/a
TYREE HENDRICKS and ANDRA
D. HENDRICKS,

     Defendant-Appellant.
_______________________________

              Submitted January 10, 2018 – Decided February 2, 2018

              Before Judges Fuentes and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No.
              15-01-0013.

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

              Ann M. Luvera, Acting Union County Prosecutor,
              attorney for respondent (Izabella M. Wozniak,
              Special    Deputy   Attorney    General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

              Appellant filed a pro se supplemental brief.
PER CURIAM

       Following the denial of his motion to suppress evidence seized

pursuant to a search warrant, defendant Andre W. Hendricks pled

guilty   to    third-degree      possession     of   cocaine    with     intent    to

distribute, 
N.J.S.A. 2C:35-5B(3) and 
N.J.S.A. 2C:35-5A(1).                         In

accord with a negotiated plea agreement, defendant was sentenced

to an extended term of eight years State prison subject to a four-

year period of parole ineligibility. Mandatory fines and penalties

were   imposed.         All   remaining    counts    of   the   indictment      were

dismissed.        Defendant      appeals      raising     two   points    for     our

consideration.

              POINT I

              THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT
              PRESENTED PROBABLE CAUSE TO ARREST NATASHA
              BASS, BUT NO PROBABLE CAUSE TO SEARCH THE HOME
              OF DEFENDANT'S SISTER[,] WANDA HENDRICKS, FOR
              WHOM BASS BABYSAT.    U.S. Const., amend. IV;
              N.J. Const., art. I, ¶ 7.

              POINT II

              THE FOUR-YEAR PAROLE DISQUALIFIER IMPOSED UPON
              ANDRE   HENDRICKS   IS  MORE   PUNITIVE   THAN
              RECOMMENDED BY THE ATTORNEY GENERAL'S BRIMAGE1
              GUIDELINES.    HENCE, DEFENDANT RESPECTFULLY
              REQUESTS A REMAND FOR RESENTENCING.




1
    State v. Brimage, 
153 N.J. 1 (1998).


                                          2                                 A-5497-15T3
     Having considered these arguments in light of the record and

controlling law, we affirm.2

     In August 2014, Detective Gary Webb, Jr., of the Union County

Prosecutor's      Office,     received       information       from   a   reliable

confidential informant.        The informant advised Webb that Natasha

Bass, known to the informant as "Tammy," distributed a controlled

dangerous substance (CDS), namely cocaine, from her single-family

residence located in Plainfield.

     According     to   the   informant,      Bass   distributed      cocaine      to

multiple individuals in the Plainfield area. The informant further

advised    that   individuals     seeking      to    purchase     cocaine     would

approach the front door of Bass' residence whereupon Bass would

open the door and conduct drug transactions either inside the

residence or in the doorway.

     The    informant       described        Bass    as    a    "black    female,

approximately [thirty] years of age, with light brown skin, long

black hair, a heavy build and approximately five feet three inches

tall."    Detective Webb showed the informant a photograph of Bass,

whereby the informant identified the person in the photograph as

"Tammy."    The informant agreed to participate in controlled drug

purchases from Bass.


2
  Defendant filed a supplemental brief in which he repeats his
challenge to the affidavit arguing lack of probable cause.

                                         3                                  A-5497-15T3
      Two controlled drug purchases were conducted during the weeks

of August 25, 2014 and September 1, 2014.         Prior to each purchase,

the informant was searched for CDS and United States currency,

with negative results.         Webb provided the informant with currency

to conduct the transaction. In the presence of Webb, the informant

contacted Bass and made arrangements to purchase cocaine at her

West Fourth Street residence.         On each purchase, detectives from

the Union County Guns, Gangs, Drugs and Violent Crimes Task Force

observed the informant meet with Bass outside her residence where

the   two   engaged   in   a   hand-to-hand   transaction.    After   each

controlled purchase, a lab analysis confirmed the CDS purchased

was cocaine.

      Records obtained by Webb from Public Service Electric and Gas

(PSE&G), revealed that "Wanda Hendricks" (Wanda) was the current

subscriber of the residence in Plainfield.         The records of the New

Jersey Motor Vehicle Commission (MVC) and New Jersey State Police

Criminal Records Division (NJSP) noted Bass' address as being two

house-numbers away from the residence in Plainfield.

      On September 9, 2014, Webb applied for a search warrant for

both the PSE&G residences and the residence listed for Bass in the

records of the MVC and the NJSP.           Based upon Webb's affidavit in

support of the application, a Law Division judge signed the warrant

authorizing the searches.

                                       4                          A-5497-15T3
      On September 11, 2014, Webb, assisted by other law enforcement

officers, executed the search warrant.3     Upon gaining access to

the residence, Wanda stated to the officers that, "you must be

here for my brother, Andre."

       The search of the premises revealed a white plate with two

razor blades and suspected cocaine residue, along with paperwork

bearing the name Andre Hendricks located inside a bedroom closet.

A coffee mug in a kitchen cabinet was found to contain glassine

folds of suspected heroin.   Both the suspected cocaine residue and

the heroin later tested as positive for those substances.

      Detectives    questioned    Wanda     regarding    defendant's

whereabouts.   Wanda indicated that defendant was at his girlfriend

Tara's4 house a few doors down.   Wanda's ten-year old son pointed

to a house located on West Fourth Street.

      The officers went to that location.   Upon their arrival, Tara

permitted the officers to enter.      Tara led them upstairs to a

bedroom where defendant was sleeping.        The officers woke up

defendant.     As defendant was dressing, Webb observed a hooded

sweatshirt on the closet door, with the pocket wide open, exposing



3
    On this appeal, defendant does not challenge the judge's
determination, after a hearing, that the manner in which the search
warrant was executed was reasonable.
4
    "Tara's" was later determined to be Tarreia Caver.

                                  5                          A-5497-15T3
a plastic bag with knots of suspected cocaine inside.      Based on

Webb's observation, defendant was ordered to go downstairs.      Webb

requested and obtained written consent from Tara to search the

bedroom.    Webb then searched the sweatshirt and seized the plastic

bag that contained forty-four plastic knots suspected cocaine, a

pack of cigarettes, and an identification card bearing the name

Andre Hendricks.    The suspected cocaine later tested positive for

that substance.

       Defendant was placed under arrest and verbally advised of his

Miranda5 rights.    After waiving his rights, defendant confessed

that the cocaine and heroin seized from both residences belonged

to him.     Defendant was transported to police headquarters and

again waived his rights.      In a videotaped statement, defendant

confirmed that the CDS found at the two residences belonged to him

and his involvement with selling CDS.

       We first address defendant's argument regarding the scope of

the search warrant.     The Fourth Amendment to the United States

Constitution and the New Jersey Constitution protect individuals

from unreasonable searches and seizures by the government.       U.S.

Const. amend. IV; N.J. Const. art. I, ¶ 7.     Accordingly, a search

warrant should not issue "except upon probable cause, supported



5
    Miranda v. Arizona, 
384 U.S. 436 (1966).

                                  6                          A-5497-15T3
by oath or affirmation."   State v. Macri, 
39 N.J. 250, 257 (1963).

"[P]robable cause requires 'more than a mere suspicion of guilt'

but less evidence than is needed to convict at trial."    State v.

Brown, 
205 N.J. 133, 144 (2011) (quoting State v. Basil, 
202 N.J.
 570, 584 (2010)).    New Jersey has adopted the totality of the

circumstances test for determining whether warrants are based on

probable cause as iterated in Illinois v. Gates, 
462 U.S. 213,

230-32 (1983).   See also State v. Novembrino, 
105 N.J. 95, 113

(1987).   Under the test, a court must therefore consider all

relevant circumstances when determining the validity of a warrant.

See State v. Smith, 
155 N.J. 83, 92 (1998).

     A "warrant is presumed valid and the burden of establishing

its invalidity rests upon the defendant."   State v. Singleton, 
158 N.J. Super. 517, 525 (App. Div. 1978) (citing State v. Mark, 
46 N.J. 262, 273 (1966)); State v. Gaudiosi, 
97 N.J. Super. 565, 571

(App. Div. 1967).   As a result, without proof that the warrant's

issuance was improper, "the warrant-supported search ought to be

regarded as cloaked with an aura of prima facie legality."     State

v. Kasabucki, 
52 N.J. 110, 122-23 (1968).

     Concerning defendant's arguments relative to the reliability

of the informant, probable cause may be premised upon information

received from informants, so long as there is "substantial evidence

in the record to support the informant's statements."     State v.

                                 7                           A-5497-15T3
Keyes, 
184 N.J. 541, 555 (2005).          See also State v. Jones, 
179 N.J. 377, 389 (2004); State v. Sullivan, 
169 N.J. 204, 212-13

(2001).      The court "must consider the 'veracity and basis of

knowledge' of the informant as part of its 'totality' [of the

circumstances] analysis."        Keyes, 
184 N.J. at 555.      "A deficiency

in one of those factors 'may be compensated for, in determining

the overall reliability of a tip, by a strong showing as to the

other, or by some other indicia of reliability.'"           State v. Zutic,


155 N.J. 103, 110-11 (1998).

       The first prong of veracity may be shown by demonstrating

that   the   informant   has     proven   reliable    by   providing     other

dependable information in previous police investigations.               Keyes,


184 N.J. at 555; Jones, 
179 N.J. at 389; Sullivan, 
169 N.J. at
 213.    The second prong of the basis of the informant's knowledge

considers whether the informant obtained his information in a

reliable manner.     Keyes, 
184 N.J. at 555; Smith, 
155 N.J. at 94.

Generally,    an   informant's    basis   of   knowledge   will   be    deemed

sufficient "if the tip itself relates expressly or clearly how the

informant knows of the criminal activity."           Jones, 
179 N.J. at 389

(quoting Sullivan, 
169 N.J. at 213).           The informant's knowledge

may be demonstrated implicitly if "the nature and details revealed

in the tip may imply that the informant's knowledge of the alleged



                                      8                                A-5497-15T3
criminal activity is derived from a trustworthy source."             Smith,


155 N.J. at 94 (citing Novembrino, 
105 N.J. at 113).

       Even if the informant's tip does not demonstrate veracity or

basis of knowledge, a judge may still issue a search warrant if

other facts in the officer's affidavit justify a finding of

probable cause.     See Keyes, 
184 N.J. at 556.        The court, in its

determination, must also consider the extent to which the police

have corroborated the information in the tip through their own

investigation.     See ibid.; Smith, 
155 N.J. at 95-96.

       With these principles in mind, we are satisfied that the

affidavit in support of the warrant provided ample probable cause

for the issuance of the warrants both as to the person of Bass as

well   as   the   residence.    Webb     received    information    from    a

confidential reliable informant.         The information imparted by the

informant was verified by Webb both by the controlled purchases

and by the location of the purchases.               As such, defendant's

argument that the issuance of the warrant for the location was

without probable cause is unavailing.

       We next address defendant's sentence.         We review the trial

court's     sentencing   decisions   under    an    abuse   of   discretion

standard.    State v. Blackmon, 
202 N.J. 283, 297 (2010).          Pursuant

to 
N.J.S.A. 2C:44-1(a) and (b), a trial court must consider

statutory aggravating and mitigating factors.           State v. Bieniek,

                                     9                              A-5497-15T3

200 N.J. 601, 608 (2010). After a proper balancing of the relevant

factors, "the trial court may impose a term within the permissible

range for the offense."            Ibid.     However, the trial court must

explain the reason underlying the findings.                R. 3:21-4(g).

       In reviewing a sentence, "[a]n appellate court is not to

substitute its assessment of aggravating and mitigating factors

for that of the trial court."              Bieniek, 
200 N.J. at 608 (citing

State v. O'Donnell, 
117 N.J. 210, 215 (1989)).                "Appellate review

of a sentence is restricted to whether the determination of the

sentencing factors was appropriate, whether the determination was

supported by competent evidence in the record, and whether the

sentence      is    so   unreasonable      that     is   shocks    the     judicial

conscience."        State v. Paduani, 
307 N.J. Super. 134, 148 (App.

Div. 1998) (citations omitted).

       When reviewing the trial court's sentence, we must ensure

that    the    trial     court     followed       the    sentencing      guidelines

promulgated in the criminal code.            See State v. Roth, 
95 N.J. 334,

365 (1984).        Specifically, we must (1) "require that an exercise

of discretion be based upon findings of fact that are grounded in

competent, reasonably credible evidence"; (2) "require that the

factfinder     apply     correct   legal     principles     in    exercising     its

discretion"; and (3) modify sentences only when the facts and law



                                        10                                  A-5497-15T3
show "such a clear error of judgment that it shocks the judicial

conscience."       Id. at 363-64.

     Defendant argues that his sentence pursuant to the Brimage

Guidelines was excessive.           We disagree.      Persons convicted of

certain drug offenses under the Comprehensive Drug Reform Act,


N.J.S.A. 2C:35-1 to -31, are subject to a mandatory minimum term

of imprisonment/parole ineligibility.

     Here, there was a negotiated plea agreement pursuant to

Brimage that provided for the State's sentence recommendation of

eight years in state prison with a four-year-period of parole

ineligibility.        During the sentence hearing, the judge found

aggravating    factors    three,    six,    and   nine,   and    no   mitigating

factors.    The judge also noted defendant's "substantial" prior

criminal    history,     which   included    numerous     disorderly      person

convictions, indictable convictions, violations of probation and

parole, and a state prison sentence with a minimum period of parole

ineligibility.

    There was no dispute that, predicated upon that history,

defendant    was    mandatory    extended    term    eligible     pursuant      to


N.J.S.A. 2C:43-6(f) (second time drug offender) or discretionary

extended    term    eligible     pursuant   to    
N.J.S.A.      2C:44-3(a)    and


N.J.S.A. 2C:43-6(b) (persistent offender).



                                      11                                 A-5497-15T3
    Having considered the record, we are satisfied that the

sentence is not manifestly excessive or unduly punitive and does

not constitute an abuse of discretion.               See O'Donnell, 
117 N.J.

at 220; Roth, 
95 N.J. at 362-63.             We are further satisfied that

the sentencing judge gave sufficient reasons for accepting the

negotiated disposition and we find no basis for disturbing the

sentence     imposed      in   conformance    therewith.       See    State     v.

Mastapeter, 
290 N.J. Super. 56, 60 (App. Div. 1996).                 However, as

the sentencing judge did not specify the statutory basis for

imposition    of    the    extended   term,    per   R.   3:21-4(e),     we   are

constrained    to   remand     to   the   trial   court   to   supplement     the

sentencing record for that purpose and for entry of an amended

Judgment of Conviction.

    Defendant's remaining arguments, not specifically addressed

herein, lack sufficient merit to warrant discussion in a written

opinion.   R. 2:11-3(e)(2)(E).

    Affirmed and remanded for further proceedings in accordance

with our decision.        We do not retain jurisdiction.




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