Opinion
DOCKET NO. A-1032-13T1
04-27-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HAROLD BURNS, Defendant-Appellant.
Moriarty Law Firm, attorneys for appellant (Charles M. Moriarty, of counsel; Timothy C. Moriarty, 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).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-11-2043. Moriarty Law Firm, attorneys for appellant (Charles M. Moriarty, of counsel; Timothy C. Moriarty, 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). PER CURIAM
Defendant Harold Burns appeals from his conviction for second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2), and from the five-year prison sentence. His brief presents the following points of argument for our consideration:
I. THE OFFICERS LACKED REASONABLE SUSPICION TO MAKE A VALID MOTOR VEHICLE STOP.
II. THE WARRANTLESS SEARCH OF THE SUBJECT RESIDENCE AND THE SEIZURE OF THE CDS FOUND WITHIN WAS UNLAWFUL, AS THE CONSENT OBTAINED BY THE NEPTUNE TOWNSHIP DEPARTMENT WAS NOT GIVEN VOLUNTARILY.
III. DEFENDANT'S SENTENCE MUST BE VACATED BECAUSE THE TRIAL COURT FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS.
Defendant pled guilty after the trial court entered a May 2, 2013 order denying his suppression motion, and the appeal from his conviction centers on that issue. Having reviewed the record of the suppression hearing in light of the applicable legal standards, we find that the trial judge's factual findings are supported by sufficient credible evidence, and in light of those findings, his legal conclusions are correct. See State v. Rockford, 213 N.J. 424, 440 (2013); State v. Elders, 192 N.J. 224, 243-44 (2007). We affirm the May 2, 2013 order
substantially for the reasons stated by the trial judge in his written opinion issued with the order, and we affirm defendant's conviction. However, we remand for reconsideration of the sentence.
I
To briefly summarize, Officer Byham observed defendant driving a green Jeep Cherokee without wearing a seatbelt. He knew who defendant was because the police had previously received a complaint from a concerned citizen that defendant was selling narcotics from his house and from the green Cherokee. According to Officer Byham, whose testimony the judge accepted as true, he and his partner, Officer Taylor, stopped defendant's car for the seatbelt violation. Defendant's sister was a passenger in the car.
During the course of the stop, defendant was visibly shaking and appeared "incredibly nervous." When Officer Byham asked defendant why he was so nervous, he asked to speak to the officer in private. During that private conversation, which took place outside the vehicle, Officer Byham told defendant that he knew defendant was selling cocaine and advised him of his Miranda rights. Defendant appeared relieved, thanked the officer, and readily admitted that he was selling cocaine. Defendant said he was tired of selling drugs, and he wanted to get out of the business before his family learned of his activities.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
After being advised of his right to refuse consent to search, defendant voluntarily signed consent forms permitting the police to search his car and his residence. His only request was that the police not tell his elderly mother why they were coming into the house. Inside the house, defendant led the police directly to his bedroom, where he opened a safe that contained a quantity of cocaine and a large amount of cash.
In her testimony, defendant's sister admitted that defendant was not wearing a seatbelt at the time of the stop. She did not hear the conversation between defendant and Officer Byham. She agreed that the only part of the house the police searched was defendant's bedroom. She contended that in a separate conversation with Officer Byham, outside the car, he told her that he knew her brother was selling drugs and threatened to arrest everyone in the house if he found drugs there.
Defendant testified also, and admitted that he was not wearing a seatbelt. However, he denied admitting to Officer Byham that he sold drugs. Defendant also stated that, while he and his sister were still sitting in the car, the officer threatened that if he did not consent to a search, the officer would get a search warrant and arrest defendant's mother and sister if he found drugs in the house. Defendant contended that was the only reason he agreed to let the officer search the house. However, on cross-examination, defendant admitted that in a subsequent videotaped interview at the police station he stated that he signed the consent forms voluntarily.
This testimony contradicted his sister's testimony. She stated that she did not hear her brother's conversation with Officer Byham, and that Byham made the arrest threat to her, outside the car.
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The judge concluded that the motor vehicle stop was valid, because the police had an articulable and reasonable basis to suspect that defendant had committed a motor vehicle offense. See State v. Locurto, 157 N.J. 463, 470 (1999); State v. Kennedy, 247 N.J. Super. 21, 27-28 (App. Div. 1991). He also found that defendant voluntarily consented to the search of his car and residence. The judge found that Officer Byham did not use any coercion or threats to obtain defendant's consent.
On this appeal, defendant argues that the police did not stop his car due to a seatbelt violation, and only detained him in order to question him about his drug activities. He also contends that his consent to the search was not voluntary. However, defendant's arguments are based on his version of the facts, which the trial judge clearly did not believe. Unlike the recently decided case of State v. Bacome, ___ N.J. Super. ___ (App. Div. 2015), the police did not order defendant to exit the vehicle; defendant asked for the opportunity to speak privately with Officer Byham. Defendant's appellate contentions on these issues are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
II
Next we turn to the sentencing issue. Defendant argues that his medical condition is such that imprisonment would "entail excessive hardship," N.J.S.A. 2C:44-1(b)(11), and would "be a serious injustice which overrides the need to deter such conduct by others." N.J.S.A. 2C:44-1(d). In raising those claims before the trial court, defendant produced substantial amounts of evidence concerning his very serious medical problems. Additionally, the pre-sentence report noted the problems defendant's medical issues might pose for the Department of Corrections.
The Supreme Court has recently emphasized that, "[i]n fixing a sentence within the statutory range, a judge must determine whether specific aggravating or mitigating factors are grounded in credible evidence in the record and then weigh those factors." State v. Case, 220 N.J. 49, 54 (2014). The trial court must also explain how it conducted the weighing process. Id. at 65; State v. Fuentes, 217 N.J. 57, 73-74 (2014). The Court has also emphasized that:
Mitigating factors that "are called to the court's attention" should not be ignored, State v. Blackmon, 202 N.J. 283, 297 (2010), and when "amply based in the record . . . , they must be found," State v. Dalziel, 182 N.J. 494, 504 (2005). In short, mitigating factors "supported by credible evidence" are required to "be part of the deliberative process." Dalziel, supra, 182 N.J. at 505.
[Case, supra, 220 N.J. at 64.]
In sentencing defendant, the judge found no mitigating factors and several aggravating factors. In engaging in the required weighing process in arriving at a sentence, the judge did not discuss or consider defendant's medical condition. For that reason, we are constrained to remand this case to the trial court for reconsideration of the sentence.
On remand, the court must consider mitigating factor eleven as it relates to defendant's medical condition, and any other mitigating factors the defense may bring to the court's attention. See State v. Randolph, 210 N.J. 330, 333 (2012) (the court should consider the defendant's situation as of the date of the resentencing). The court must then re-engage in the balancing of aggravating and mitigating factors in arriving at a sentence.
Affirmed in part, reversed in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION