Opinion
DOCKET NO. A-5514-12T2
04-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DIVINE C. ALLAH a/k/a JERMAINE CRUSE, JERMAINE JONES, JAMES JONES, DIVINE ALLAH, C. DEVINE ALLAH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Amanda E. Nini, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Nugent. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-05-0435. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Amanda E. Nini, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Divine C. Allah appeals from an April 12, 2013 judgment of conviction entered following a jury trial for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and challenges, as excessive, the imposed five- year imprisonment term, subject to a two-and-one-half-year period of parole ineligibility. On appeal, among other things, defendant argues both his motions to dismiss the indictment for possession of cocaine and to suppress evidence were erroneously denied. We reject defendant's suppression arguments; however, following our review, we conclude untrue, material information presented by the State influenced the grand jury's decision to indict. Accordingly, the possession charge should have been dismissed without prejudice.
I.
These facts are taken from the trial record. On October 15, 2010, at approximately 8 p.m., Detective Pedro Perez of the Trenton Police Department's Anti-Crime Unit was patrolling the area of Passaic and Calhoun Streets, with his partner, Detective Matthew Przemieniecki. Detective Perez observed two individuals standing on the corner, facing each other, and engaged in what he believed to be a hand-to-hand drug transaction. Detective Perez was no more than fifteen feet from the corner when his attention was drawn to the men. He saw the first man, later identified as Rufus Patterson, pass a folded bill of an unknown denomination to the second man, later identified as defendant, who placed the folded bill in his pants pocket and handed Patterson a small unidentifiable object, which he accepted with his left hand and shoved into his jacket pocket. Detective Perez exited the patrol car to investigate, and the two men went their separate ways.
During his grand jury testimony, Detective Perez testified he observed defendant place the money in his left front pocket and that a folded ten dollar bill was found in defendant's left pants' pocket, with other money found in his right pocket. At trial Detective Perez stated defendant placed the folded dollar bill received from Patterson in his right front pocket.
Detective Perez followed Patterson and ordered him to stop. Patterson voluntarily handed Detective Perez a small unpackaged piece of crack cocaine he had been holding in his left hand. He was then placed under arrest. Detective Przemieniecki stopped and arrested defendant. The search incident to arrest revealed no contraband or weapons in defendant's possession.
Detective Perez processed defendant at the police station. When he removed the laces from defendant's left boot, he found nine zip-lock bags of crack cocaine under the tongue. On cross examination, Detective Perez acknowledged security cameras recorded events in the room where defendant was processed. Further, Detective Perez admitted he told the grand jury all videos were saved daily and available. He also stated the video recorded all events, including the discovery of narcotics in defendant's boot. Before the grand jury, Detective Perez testified he only needed to submit a date and time, and the recording would be provided. However, after completing his grand jury testimony, Detective Perez learned the video had been "discarded" because videos were retained for only sixty to ninety days.
In this matter, defendant was arrested on October 15, 2010 and the grand jury proceeding was held on May 3, 2011.
Detective Przemieniecki testified next. He confirmed the facts regarding the patrol, the observation of defendant and Patterson "huddled together" on the corner in front of the deli, and the detectives' stop of the two men. After arresting and handcuffing defendant, Detective Przemieniecki conducted a search incident to arrest. No contraband or weapons were found. He did not observe Detective Perez's discovery of the narcotics in defendant's boot.
The State presented expert testimony regarding street-level narcotics distribution. Further, documents and photographs were introduced into evidence. Patterson was unable to be located and did not appear at trial.
Defendant testified on his own behalf. He denied he sold crack cocaine to Patterson as asserted by the State and insisted, although in the area, he was on the left side of the street, in front of the liquor store, not the right side in front of the deli. Defendant encountered Patterson that evening and gave him a Newport 100 cigarette and a lighter. Defendant recounted how three unmarked police sedans pulled into the area at an "excessive speed" and he watched Detective Perez tell Patterson to put down the cigarette and open a bottle of gin he held. Patterson was then handcuffed and searched. Defendant was stopped and also searched, but no contraband was found. He admitted he gave police a false name when arrested, explaining he hoped to avoid being arrested on an outstanding municipal bench warrant.
When processed, defendant stated he and Detective Perez exchanged "heated words," because he falsely identified himself. Defendant also discussed how Detective Perez removed his left boot and a small bag of marijuana fell out. Additional heated words were exchanged with Detective Perez regarding this event. Defendant repeatedly insisted no cocaine was found in either boot.
On cross-examination, defendant was asked about his appearance before the grand jury. He mentioned that Detective Perez should be required to present the security video recording his processing, because it would show the only thing in his boot was the small package of marijuana. Defendant insisted the detective was lying.
The jury convicted defendant of third-degree possession of a controlled substance (cocaine), N.J.S.A. 2C:35-10(a)(1). The jury acquitted defendant of the remaining charges of third-degree possession of a controlled dangerous substance (cocaine) with the intent to distribute, N.J.S.A. 2C:35-5(a), (b)(3); second-degree possession of cocaine with the intent to distribute within 500 feet of a public facility, N.J.S.A. 2C:35-7.1, -5(a)(1), and -5(b)(3); third-degree possession of cocaine with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, -5(a)(1) and -5(b)(3); third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and (b)(3); second-degree distribution of cocaine within 500 feet of a public facility, N.J.S.A. 2C:35-7.1, -5(a)(1), and -5(b)(3); and third-degree distribution of cocaine within 1000 feet of a school, N.J.S.A. 2C:35-7, -5(a)(1), and -5(b)(3). Defendant was sentenced to a five-year term of imprisonment with a two-and-one-half year period of parole ineligibility. This appeal ensued.
The indictment did not include a charge related to the possession of the discovered marijuana, which was a disorderly person offense.
Defendant's motion to permit the appeal to be filed late was granted.
II.
On appeal, defendant argues:
POINT I.
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE CDS RECOVERED FROM PATTERSON AND FOUND IN DEFENDANT'S BOOT; THE POLICE LACKED BOTH A REASONABLE ARTICULABLE SUSPICION TO CONDUCT AN INVESTIGATORY STOP, AND PROBABLE CAUSE TO ARREST DEFENDANT.
A. The Standard of Review is De Novo.
B. The Mere Observations that Patterson and Defendant Were in Close Proximity to Each Other on a Street Corner, and That the Former Handed the Latter a Folded Dollar Bill in Exchange for an Unidentified Object, did not Confer a Reasonable Articulable Suspicion to Police Officers to Conduct an Investigatory Stop, or Probable Cause to Arrest Defendant.
POINT II.
DEFENDANT WAS DENIED DUE PROCESS OF LAW BY THE STATE'S LOSS OR DESTRUCTION OF THE VIDEO-RECORDED SEARCH THAT ALLEGEDLY RESULTED IN THE RECOVERY OF THE DRUGS FROM HIS BOOT, AND THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT AND HIS REQUEST FOR AN ADVERSE INFERENCE CHARGE.
POINT III.
THE SENTENCE IMPOSED, WHICH INCLUDED A DISCRETIONARY PERIOD OF PAROLE INELIGIBILITY, WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.
A.
We reject, as lacking merit, the probable cause challenges presented in Point I. R. 2:11-3(e)(2). As stated in the motion judge's May 2, 2012 written opinion, the totality of the circumstances justify the investigatory stop. See State v. Moore, 181 N.J. 40, 46 (2004). These facts included: finding Detective Perez more credible than defendant; reliance on the detective's training and experience, Schneider v. Simonini, 163 N.J. 336, 362 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001); the detective's knowledge the area was notorious for high crime, including street drug sales, State v. Johnson, 171 N.J. 192, 217 (2002); and the detective's direct observation of a perceived hand-to-hand drug sale.
Moreover, when these facts are coupled with Patterson's admission and surrender of crack cocaine from the same hand Detective Perez observed defendant place an object, we conclude probable cause for defendant's arrest was established. Finally, the discovery of money in defendant's pocket and drugs in his boot, revealed during a processing inventory search, conducted substantially contemporaneous to arrest, were valid. Thus, the motion judge properly considered the totality of the evidence and denied defendant's motion to suppress.
B.
We turn to defendant's challenge of the order denying dismissal of the indictment. To support the indictment's dismissal, defendant asserts a due process challenge. Defendant avers the disposal of the security video, which purportedly recorded the discovery of the cocaine in his boot during processing, caused the State to violate its affirmative obligation to secure and preserve the video-recorded search, as it was "dispositive of the possessory offenses charged." Specifically, he maintains the destruction, even if not deliberate, was tantamount to non-disclosure of exculpatory evidence. Further, he argues because the custodian of records was never presented, he was relieved of the obligation to prove the State acted in bad faith. Thus, the manifest resultant prejudice caused by the State's carelessness and the false assertion by Detective Perez suggesting video evidence of the cocaine discovery existed warranted dismissal of the indictment.
The State refutes these claims of error, asserting it fulfilled its discovery obligations and contending it did not withhold clearly exculpatory evidence that would negate defendant's guilt as to the offense. See State v. B. Hogan, 144 N.J. 216, 237 (1996). The State also maintains defendant had ample opportunity to present his position before the grand jury, which was fairly instructed by the prosecutor that it must issue a no bill if defendant was believed.
Additional facts aid review of this issue. Detective Perez was first called to testify before the grand jury and related substantially the same events he presented at trial. Defendant filed a request to voluntarily appear before the grand jury, where he freely related his recitation of what occurred. Defendant insisted he did not sell crack to Patterson, denied the two exchanged money, asserted he never had cocaine in his boot, and admitted only that he possessed a small amount of marijuana for personal use.
In certain respects, defendant's grand jury testimony varied from his trial testimony. However, these differences do not impact our review of the issues. --------
During the course of his statement, defendant asserted:
Yeah, I know [Detective Perez] said it, but what I'm saying is this. If he found crack cocaine in my boots like he's assuming he did, like these reports say, and which if he did, I ain't had [sic] no crack cocaine in my boot. And present the camera tape. Shouldn't there be cameras in the police station that would reveal that I had crack in my boots? If I did this, I figure like this, maybe he was pissed off because I lied about my name and it took two, three hours for them to find out who I really was so now they want to make it hard on me. Do you think that's possible or do you think that's made up? Is that possible? Have you ever heard of cops doing that?After defendant was excused, the grand jurors asked various questions, particularly regarding the discovery of the crack cocaine in defendant's boot. The prosecutor recalled Detective Perez, whose questioning focused on the procedure followed when processing defendant. He specifically noted "[t]here's cameras above the prisoners at all times, and the officers." He described how he came to find the nine bags of crack cocaine in defendant's boot, when he removed it from his foot, took off the laces, and pulled back the tongue. The prosecutor then asked: "And all of this would be on camera," to which Perez answered "Yes." The prosecutor also questioned whether it would be possible to get the DVD, and Perez responded:
[DETECTIVE PEREZ]: I would just have to talk to our technician that handles all the video recordings throughout the department. It's all saved on a RAM or one of them type things. I'm not very computer literate. But it's saved on one of those giga hard drive things you use.However, when Detective Perez checked, he learned the processing area surveillance tape had been discarded and was not available.
[Prosecutor]: So it doesn't -- it's not like a surveillance tape where it will record over after a certain --
[A]: No. It records daily and then it gets stored. So all I have to put [in] is a date, time and we can print that out for you.
[Q]: And so it would be possible to retrieve that?
[A]: Or put it on a DVD, I'm sorry, there's no printing out anything.
During argument on defendant's motion, Detective Perez's grand jury testimony regarding the availability of the processing area surveillance tape was emphasized as a basis to dismiss the indictment. Counsel maintained this testimony "clearly influenced the jury in making a decision to true bill this case because if they went on the fact that there is a tape that exists and that tape showed my client had illegal narcotics in his boot." The motion judge disagreed and denied defendant's motion.
An indictment is presumed valid and should only be dismissed if it is "manifestly deficient or palpably defective." B. Hogan, supra, 144 N.J. at 229. We review a trial court's decision on a motion to dismiss an indictment for abuse of discretion. State v. Saavedra, 222 N.J. 39, 55 (2015). "A trial court's exercise of this discretionary power will not be disturbed on appeal unless it has been clearly abused." Id. at 55-56 (quoting State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994)), certif. denied, 140 N.J. 277 (1995).
"At the grand jury stage, the State is not required to present enough evidence to sustain a conviction." State v. Feliciano, ___ N.J. ___, ___ (2016) (slip op. at 47-48). The Supreme Court has expounded on the nature of judicial review of a challenge to a grand jury indictment, noting "[t]he grand jury 'is an accusative rather than an adjudicative body,' whose task is to 'assess whether there is adequate basis for bringing a criminal charge.'" Saavedra, supra, 222 N.J. at 56 (quoting B. Hogan, supra, 144 N.J. at 229-30). "A trial court deciding a motion to dismiss an indictment determines 'whether, viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it.'" Id. at 56-57 (quoting State v. Morrison, 188 N.J. 2, 13 (2006)).
It is not the role of a reviewing court to question the strength of the case, its possible deterrent value, or the government's enforcement priorities. [State v. Perry, 124 N.J. 128, 168 (1991)]. Nonetheless, the reviewing court's responsibility remains to examine whether "an indictment alleges all the essential facts of the crime[.]" State v. [N.J.] Trade Waste Ass'n, 96 N.J. 8, 19 (1984).Accordingly, a reviewing court "should not disturb an indictment if there is some evidence establishing each element of the crime to make out a prima facie case." Saavedra, supra, 272 N.J. at 57 (quoting Morrison, supra, 188 N.J. at 12).
[State v. L.D., ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 12) (second alteration in original).]
Defendant's sole conviction was for possession of cocaine contrary to N.J.S.A. 2C:35-5. The statute makes it unlawful "for any person knowingly or purposely . . . to possess or have under his control with intent to . . . distribute or dispense, a controlled dangerous substance . . . in a quantity less than one-half ounce." N.J.S.A. 2C:35-5(a), (b)(3).
Defendant insists the State's discovery obligations affirmatively require it to secure videotapes recording evidence supporting or refuting criminal charges. On this record, we decline to resolve that dispute, other than to mention such a practice would heavily benefit appropriate prosecutions and eliminate possible unsupported accusations. In our view, the issue presented does not turn on the fact that the tape was discarded. Rather, we consider the manner in which its purported existence and suggested content was proffered to the grand jury.
Before the grand jury, the State presented Detective Perez's testimony regarding his discovery of the nine cocaine packets in defendant's left boot. This "evidence and the rational inferences drawn from that evidence in the light most favorable to the State," support the elements of the charged possession offense and would allow the grand jurors to "reasonably believe that a crime occurred and that the defendant committed it." Saavedra, supra, 222 N.J. at 57 (quoting Morrison, supra, 188 N.J. at 13).
Rather, then limiting its grand jury evidence the consideration of Detective Perez's and defendant's testimony, the State decided to present additional evidence once the grand jury raised questions regarding defendant's suggestion a video depicting his processing would prove he only had marijuana in his boot. The prosecutor then presented Detective Perez's affirmation there was an easily accessible video showing the discovery of the cocaine in defendant's boot. The reasonable inferences from this testimony is Detective Perez knew of the video, which confirmed his version of events. In light of this additional testimony, which later proved to be untrue, we must consider whether the evidence given mislead the grand jurors and casts "grave doubt" on the grand jury's determination. State v. Engel, 249 N.J. Super. 336, 360 (App. Div.), certif. denied, 130 N.J. 393 (1991).
Legal authority makes it clear "the State may not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a 'half-truth.'" B. Hogan, supra, 144 N.J. at 236. The record does not support a conclusion the prosecutor willfully withheld the video evidence in an effort to secure a true bill. However, we conclude offering the elicited statements from Detective Perez regarding the video, which later proved to be false, had the effect of misleading the grand jury to believe credible, material video evidence existed as part of the State's proofs. In other words, telling the grand jury there was such a video, to refute defendant's denial he had cocaine in his boot, induced a rational grand jury to conclude the State had other support for its prima facie case against defendant. Ibid.
Had the State submitted the case to the grand jury following defendant's testimony, we would conclude the jurors assessed the evidence, made credibility determinations, and returned an indictment, which would stand. Instead, the record shows the grand jury was not satisfied with the testimony of Detective Perez once defendant concluded his statement. The grand jury's questions prompted the prosecutor's decision to recall Detective Perez to provide supplemental evidence. Although his follow-up testimony was brief, Detective Perez focused on the discovery of the illicit narcotics in defendant's boot, the nature of the video recordings, and offered assurances the video was readily available. These facts support a conclusion the grand jurors relied on the additional evidence as validating the officer's discovery of contraband, which then led it to indict defendant.
The circumstances described do not involve a procedural irregularity before the grand jury, which is subsequently rendered harmless by a finding of guilt beyond a reasonable doubt after trial. State v. Ball, 268 N.J. Super. 73, 73-74 (1993) (denying dismissal of indictment after trial based on challenge to sufficiency of the evidence). Nor does it involve an incomplete or imprecise legal interpretation of the charged offenses, which would also fail as a basis to dismiss an indictment. State v. Laws, 262 N.J. Super. 551, 563 (App. Div. 1993). Rather, the issue involves the truth of the evidence presented to the grand jury in support of the indictment.
Detective Perez's erroneous testimony regarding the existence of confirming video tape evidence, substantially influenced and impacted the grand jury's decision to indict. State v. J. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635 (2001). See also Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S. Ct. 2369, 2374, 101 L. Ed. 2d 228, 238 (1988) (quoting United States v. Mechanick, 475 U.S. 66, 78, 106 S. Ct. 938, 945, 89 L. Ed. 2d 50, 61 (1986)). Because there is a meaningful difference between information that is imprecise and information that is blatantly wrong, we conclude the presentation of Detective Perez's inaccurate supplemental testimony "clearly infringed upon the [grand] jury decision-making function." State v. Schamberg, 146 N.J. Super. 559, 564 (App. Div.), certif. denied, 75 N.J. 10 (1977).
We also recognize Detective Perez accurately admitted his mistaken grand jury statements at trial. However, we cannot suggest this cured what we conclude was a distorted presentation based on false statements that led the grand jury to indict in the first instance. Further, our conclusion is not altered by the State's suggestion the misleading assertions were inadvertent, not intentional. The fact remains the grand jury was misled by untrue testimony.
We conclude fundamental fairness demanded the indictment on the possession charge should have been dismissed without prejudice. Ibid.; see also State v. Marshall, 123 N.J. 1, 152 (1991) ("The primary duty of a prosecutor is not to obtain convictions, but to see that justice is done."), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Accordingly, defendant's conviction must be vacated. Our determination makes it unnecessary to address defendant's sentencing challenges.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION