Opinion
DOCKET NO. A-2493-11T4
03-08-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN BUNSCO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jeffrey S. Mandel, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Haas.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 99-04-0222.
Joseph E. Krakora, Public Defender, attorney for appellant (Jeffrey S. Mandel, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After his motion to suppress evidence seized pursuant to a search warrant was denied by the Law Division on August 13, 1999, defendant John Bunsco left the country. He was not apprehended until November 22, 2010 when he arrived in the United States on a flight from Costa Rica. On April 6, 2011, defendant pled guilty to second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); and third-degree bail jumping, N.J.S.A. 2C:29-7. He was sentenced to a ten-year extended term in prison on the possession of cocaine with intent to distribute charge, with a four-period of parole ineligibility, and to a concurrent three-year term on the bail jumping charge. Challenging the motion judge's denial of his motion to suppress, defendant appeals the judgments of conviction. We affirm.
I.
At 2:00 p.m. on February 4, 1999, Detective Hoey of the Somerset County Prosecutor's Office, and Detective McCarthy of the Raritan Borough Police Department, together with an assistant prosecutor, appeared before Judge Leonard Arnold to seek a search warrant to search a 1984 Cutlass automobile and the persons of Edward O'Neal, David Runyon, and an unidentified third man. Both detectives gave sworn testimony before the judge in support of the application.
Detective McCarthy testified he had received information at the end of July 1998 from a confidential informant, who had provided reliable information on one occasion in the past, that on Thursdays, O'Neal would take a train from Raritan to New York City to purchase cocaine. The informant told the detective O'Neal would leave Raritan between 9:00 a.m. and noon, then returning to Bound Brook, where he would be picked up in a blue Oldsmobile Cutlass.
Shortly thereafter, the police conducted a surveillance and observed O'Neal boarding a train bound from Raritan to New York on a Thursday morning. However, they were not able to confirm the rest of the informant's tip that O'Neal returned to Bound Brook or that he was picked up in a blue Oldsmobile.
Sometime during the week prior to February 4, 1999, Detective Hoey testified he received a tip from a different informant, with whom he had never worked in the past. This informant told Detective Hoey that on February 4, at approximately 1:00 p.m., O'Neal would be driven by Runyon to New York City to purchase cocaine. Runyon would be driving a gray LTD automobile. The informant told the detective the men would return around 4:00 p.m. on February 4. The informant also advised Detective Hoey that he had received his information directly from O'Neal.
The police set up a surveillance and observed Runyon arrive at O'Neal's home around noon on February 4. He was driving a gray LTD. Runyon entered the residence. Around 12:30 p.m., a blue Oldsmobile arrived. About ten minutes later, Runyon and the unidentified driver of the Oldsmobile got into the Oldsmobile and drove to the Newark train station. At the station, the car parked. About twenty-five minutes later, Detective Hoey testified O'Neal walked out of the station carrying a paper bag and got into the car with the other two men. The car then began driving back to Somerset County as the police followed.
Based upon the testimony of the two detectives, Judge Arnold found there was probable cause to support the issuance of a search warrant for the Oldsmobile and all three occupants. By this time, the officers who were following the vehicle had already stopped it. The police advised the men they were being detained while other officers were obtaining the search warrant. O'Neal got out of the car and admitted he had cocaine in his pocket. The police did not search him at that time and waited until the search warrant was obtained. Once that occurred, the police found over thirty packets of cocaine in a bag they removed from O'Neal's pocket. All three men were arrested.
O'Neal told the detectives he had purchased the cocaine for defendant and that defendant was supposed to come to O'Neal's house to pick it up later in the day. O'Neal and the detectives went to his house and O'Neal paged defendant to come pick up the drugs. Defendant soon arrived at O'Neal's house, went in and came back out and got in his car. Once O'Neal was in his car, the detectives approached and, in response to a police sergeant's inquiry, he admitted he had cocaine in his pocket. The police then removed the bag containing cocaine from defendant's pocket. Defendant later consented to a search of his home, where drug paraphernalia was found. Defendant told the detectives O'Neal had been going to New York for him once a week to buy cocaine. Defendant also admitted he would sell the cocaine to about twenty customers for twice the amount he paid O'Neal for the drugs.
Defendant filed a motion to suppress that was limited to an argument that Judge Arnold did not have probable cause to issue the search warrant. If the warrant was improperly issued, defendant argued, any evidence obtained after the initial search of O'Neal would have to be suppressed. Following oral argument, Judge Victor Ashrafi denied defendant's motion.
In a thorough oral opinion, the judge reviewed the information provided to the detectives by the two informants and found it supported a finding that probable cause existed for the issuance of the search warrant. He found the detectives had been able to corroborate the first informant's tip that O'Neal went to New York City on Thursday on a train from Raritan. They were not able to corroborate the rest of the tip. However, the second surveillance on February 4, 1999 corroborated the first informant's information that O'Neal took a train to and from New York on Thursdays.
Although the second informant had not been used by the detectives in the past, the informant had obtained his information directly from O'Neal. The informant provided very specific information as to the date and time Runyon would be picking up O'Neal and the car that would be used. Police surveillance confirmed that Runyon went to O'Neal's house at the appointed time. O'Neal was not there as the second informant had stated, but a blue Oldsmobile, as related by the first informant, became involved. Based upon the "totality of circumstances in this case," Judge Ashrafi found "probable cause did exist to support the issuance of the search warrant leading to [O'Neal's] arrest and search. Therefore, he denied defendant's motion to suppress.
II.
On appeal, defendant raises the following arguments for our consideration:
Point IAfter reviewing the record, we are satisfied the judge properly denied the motion to suppress.
Though The Prosecutor Surmised That "Defendant Changed Plans" To Explain Why The Informants Provided Inaccurate Tips, A Search Warrant Cannot Issue Based On: (1) Stale, Inaccurate Information From One Informant; (2) Contradictory And Inaccurate
Information From A Second Informant; And (3) Pre-Warrant Notice From Surveillance Units That Both Informants Provided Inaccurate Information.
Point II
The Motor Vehicle Stop Occurred Prior To The Issuance Of The Warrant And, Without A Finding By The Court Below Of The Existence Of Reasonable Suspicion Or Another Basis For The Stop, It Violated The Fourth Amendment Of The Federal Constitution And Article I, ¶ 7 Of The State Constitution. (Not Raised Below).
Point III
The Statute Of Limitations For Bail Jumping Expired Prior To The Accusation Being Issued. (Not Raised Below).
Point IV
The Court Erred In Imposing An Extended Term For Drug Possession And The Overall Sentence Is Excessive. (Not Raised Below).
Our review of the Law Division's ruling on a motion to suppress evidence is limited. State v. Robinson, 200 N.J. 1, 15 (2009). 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.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)).
Pursuant to the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, "police officers must obtain a warrant from a neutral judicial officer before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. DeLuca, 168 N.J. 626, 631 (2001)(quoting State v. Cooke, 163 N.J. 657, 664 (2000)). "[A] search warrant executed pursuant to a warrant is presumed to be valid," State v. Jones, 179 N.J. 377, 388 (2004), and a reviewing court must "accord substantial deference to the discretionary determination resulting in the issuance of the warrant." State v. Marshall, 123 N.J. 1, 72 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).
The defendant bears the burden of proving the invalidity of a search executed pursuant to a warrant, i.e., the warrant lacked probable cause based on the facts provided or the search was otherwise unreasonable. State v. Valencia, 93 N.J. 126, 133 (1983). Hence, "where the adequacy of the facts . . . appears to be marginal, the doubt should ordinarily be resolved by sustaining the search." State v. Kasabucki, 52 N.J. 110, 116 (1968).
Prior to "issuing the warrant, the judge must be satisfied that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched" based on the totality of the circumstances. State v. Sullivan, 169 N.J. 204, 210 (2001). Although probable cause cannot be precisely defined, courts have interpreted it to require "less than legal evidence necessary to convict though more than mere naked suspicion." State v. Mark, 46 N.J. 262, 271 (1966). Therefore,
[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
[Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983).]
A court may issue a search warrant based on information received from a confidential informant, "provided that a substantial basis for crediting that information is presented." Jones, supra, 179 N.J. at 389 (citations omitted). Under the totality of circumstances test, "courts consider an informant's veracity and his or her basis of knowledge to be the two most important factors in evaluating the informant's tip." Sullivan, supra, 169 N.J. at 212. Additionally, "[b]ecause the information contained in an informant's tip is hearsay . . . [i]ndependent [police] corroboration is necessary to ratify the informant's veracity and validate the truthfulness of the tip." State v. Smith, 155 N.J. 83, 95, cert. denied, 525 U.S. 1033, 199 S. Ct. 576, 142 L. Ed. 2d 480 (1998).
Defendant argues the judge erred in finding probable cause to issue the warrant because the information provided by the two confidential informants did not match what the police observed during their surveillance in all respects. For example, he notes Runyon did not drive O'Neal to New York City on February 4 as the second informant stated but, instead, picked him up at the Newark train station. Because of these factual discrepancies, defendant asserts the informants were unreliable and their tips could not form the basis for a finding of probable cause. We disagree.
Here, the detectives were able to corroborate all of the key items of information provided by the informants. Each informant stated O'Neal traveled to New York City on Thursdays. The first informant indicated a blue Oldsmobile would be involved and the second stated a gray LTD would be used. Both vehicles were used by Runyon and the third man on February 4, a Thursday. The information provided by the second informant, who received it directly from O'Neal, was very specific as to the date and time Runyon would pick up O'Neal.
While O'Neal was not at home when Runyon arrived, Runyon did appear at his home at the appointed hour. After waiting for half an hour, he and the third man then went to the train station where they picked up O'Neal, who came out of the station carrying a paper bag in which the cocaine was later found. We agree with Judge Ashrafi's observation that "[t]he information that was not corroborated could be logically explained and does now show that the informant[s'] tips were false." By driving to O'Neal's house and then waiting, Runyon gave every indication he "expected to meet [O'Neal] there but that [O'Neal] may have changed his plans." Under the totality of the circumstances presented in this case, we perceive no basis for disturbing Judge Ashrafi's finding that probable cause existed to support the issuance of the warrant which revealed the drugs O'Neal had purchased for defendant.
Defendant next argues the police who stopped O'Neal's car as it returned from the train station should not have done so because the search warrant had not yet been issued. He asserts this meant that the police did not have a reasonable suspicion that O'Neal was engaging in criminal activity at the time the car was stopped. This argument lacks merit. At the time the stop was made, the detectives were before Judge Arnold seeking a search warrant. Obviously, therefore, they had information supporting a finding that there was probable cause, and not just reasonable basis, to suspect O'Neal was in possession of cocaine at that time.
Moreover, defendant did not raise this contention before Judge Ashrafi. His motion was strictly limited to his contention that there was no probable cause to support the issuance of the warrant. Although under the plain error rule we will consider allegations of error not brought to the trial court's attention that have a clear capacity to produce an unjust result, See Rule 2:10-2; State v. Macon, 57 N.J. 325, 337-39 (1971), we generally decline to consider issues that were not presented to the trial court. Neider v. Royal Indem. Ins. Co. 62 N.J. 229, 234 (1973). This is especially the case where, as here, one of the parties specifically concedes a point, thereby completely eliminating the need for testimony concerning the conceded issue at a suppression hearing. State v. Cryan, 320 N.J. Super. 325, 332 (App. Div. 1999)(refusing to consider the argument raised by the State for the first time on appeal that a stop of a motor vehicle was justified because the police had a reasonable suspicion the driver was engaged in criminal activity, where the State did not raise this argument or elicit testimony concerning it at the suppression hearing and where it conceded at that time that its only argument supporting the stop was the community caretaking exception). As the Supreme Court recently explained:
Appellate review is not limitless. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves. Although "[o]ur rules do not perpetuate mere ritual[,]" we have insisted that in opposing the admission of evidence, a litigant "must make known his position to the end that the trial court may consciously rule upon it." State v. Abbott, 36 N.J. 63, 76 (1961). This is so because "[t]he important fact is that the trial court was alerted to the basic problem[.]" Id. at 68. In short, the points of divergence developed in the proceedings before a trial court define the metes and bounds of appellate review.
[Robinson, supra, 200 N.J. at 19.]
As noted, defendant's present contention that the stop of O'Neal's car was improper was not a basis for his motion to suppress. Consequently, it was never ruled upon by Judge Ashrafi, who found that defendant had specifically conceded the point, and the record was not fully developed in this regard. We must, of course, consider the suppression motion solely on the record presented at the hearing before the motion judge. See State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999). That evidence, however, is not sufficiently complete to permit adjudication of the newly presented issue. We, therefore, decline to consider it.
Defendant's contention that he could not be prosecuted for bail jumping under N.J.S.A. 2C:29-7 because the statute of limitations had run also lacks merit. Immediately after denying defendant's motion to suppress, Judge Ashrafi conducted a pre-trial conference and set a trial date. Defendant did not appear. He left the United States and testified he lived in Costa Rica until November 22, 2010, when he returned to this country and was arrested at the airport.
N.J.S.A. 2C:1-6(f) provides that the statute of limitations does "not apply to any person fleeing from justice." That was clearly the case here. Defendant admitted during his plea and sentencing colloquys that he intentionally failed to appear in court as scheduled. Instead, he fled to Costa Rica where he remained for almost eleven years because he "was scared." Therefore, the statute of limitations did not run on this offense and defendant's conviction and sentence were entirely proper.
Finally, defendant argues his sentence was excessive. In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 2334, 365 (1984). We are satisfied the sentencing judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, applied the correct sentencing guidelines enunciated in the Code, and the application of the factors to the law do not constitute such clear error of judgment as to shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989). Accordingly, we discern no basis to second-guess the sentence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION