Opinion
DOCKET NO. A-4144-10T4
03-12-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHERMAN CARLTON, a/k/a CARLTON J. SHERMAN, a/k/a SHERMAN CARLSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-04-0644.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Sherman Carlton appeals from his conviction by plea to possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7, and possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7(b). On appeal, defendant raises the following issues for our consideration:
This offense is also known generally as "certain persons not to have weapons" or "certain persons."
POINT I
CONTRARY TO THE TRIAL COURT'S CONCLUSION, THE WARRANT AFFIDAVIT FAILED TO SUPPORT A FINDING OF PROBABLE CAUSE TO SEARCH DEFENDANT'S RESIDENCE. THEREFORE, THE MOTION TO SUPPRESS EVIDENCE SEIZED [ON] UNION STREET SHOULD HAVE BEEN GRANTED.
A. THE WARRANT AFFIDAVIT FAILED TO ESTABLISH A NEXUS BETWEEN DEFENDANT'S RESIDENCE AND ANY DRUG OFFENSES THAT WERE OBSERVED BY OFFICER GOODMAN AT [] RANDOLPH.POINT II
B. ERRORS IN THE TRIAL COURT'S FINDINGS REQUIRE THAT THE ORDER DENYING SUPPRESSION BE REVERSED.
THIS MATTER MUST BE REMANDED FOR A RULING ON DEFENDANT'S MOTION TO COMPEL DISCLOSURE OF THE INFORMANT'S IDENTITY.
POINT III
THIS MATTER MUST BE REMANDED FOR IMPOSITION OF A SENTENCE CONSISTENT WITH THE CODE OF CRIMINAL JUSTICE AND COURT RULES, FOR CLARIFICATION, AND FOR A PROPER STATEMENT OF REASONS FOR THE SENTENCE IMPOSED.
A. WHETHER THE TERMS IMPOSED ARE TO RUN CONCURRENTLY OR CONSECUTIVELY IS UNSTATED ON THE RECORD.
B. THE EXTENDED TERM CANNOT BE REVIEWED BECAUSE IT IS NOWHERE IDENTIFIED, LACKS A SUFFICIENT STATEMENT OF REASONS, AND WAS OTHERWISE NOT IMPOSED IN ACCORDANCE WITH THE CODE OF CRIMINAL JUSTICE.
C. THE REASONS FOR THE SELECTION OF AN EIGHT-YEAR TERM WITHIN THE EXTENDED TERM RANGE WERE NOT SUFFICIENTLY EXPLAINED ON THE RECORD.
The record establishes that on October 17, 2008, Jersey City Police Officer Anthony Goodman was assigned to perform surveillance of suspected drug activity at a location on Randolph Avenue. Observing the location from inside an unmarked truck, Goodman watched a man, later identified as defendant, engage in what appeared to be several "hand-to-hand" narcotics transactions. Defendant would accept money, go into a side door, and obtain what Goodman suspected were drugs, and give the packages to presumed buyers.
We will not identify exact street addresses but refer to the two locations that were the subject of the challenged search warrant as "Union Street" and "Randolph Avenue."
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On October 21, 2008, Goodman contacted a confidential informant in an attempt to have the informant purchase drugs from defendant in what is referred to as a "controlled buy." The informant, who had provided reliable information in the past, was first searched and found to have no money or contraband. The informant was then given a pre-recorded twenty-dollar bill to make the purchase.
Goodman observed the informant walk up the steps of the Randolph Avenue house and speak with two females who were on the porch. One of the females made a phone call and, a few minutes later, defendant arrived with another female in a grey Pontiac minivan. The informant spoke with defendant, then both entered a side door to the Randolph Avenue house. After approximately two minutes, they came out. Defendant got into the minivan and left, while the informant went to meet with Goodman.
The informant gave Goodman two vials of suspected cocaine which he had just purchased from defendant. The informant also provided Goodman with the address of defendant's residence on Union Street and told him defendant kept most of his drugs there. With the informant still in his truck, Goodman followed defendant's minivan to the Union Street address and observed defendant park his vehicle near that location. Goodman described the Union Street address as a fifteen-floor apartment building.
On October 22, 2008, Goodman spoke by telephone with the informant who reported being inside defendant's Union Street apartment and seeing marijuana and vials of cocaine inside a lockbox.
On November 9, 2008, the informant reported going into defendant's apartment again and observing at least two ounces of cocaine and several bricks of heroin.
On November 10 and 11, 2008, the informant made additional purchases of cocaine and heroin from defendant in controlled buys, one at the Union Street address and the other at the Randolph Avenue location.
On November 12, 2008, Goodman obtained search warrants for the Union Street and Randolph Avenue locations. Drugs were recovered from Union Street, but nothing was found at Randolph Avenue.
On November 18, 2008, a Hudson County grand jury returned a sixteen-count indictment charging defendant with drug and weapons offenses. Defendant moved to suppress the evidence seized during the search and to compel disclosure of the informant's identity. After a hearing, the court denied both motions in a written decision.
On October 12, 2010, defendant entered pleas of guilty, pursuant to a plea agreement, to possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-7 (count three), and possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7(b) (count sixteen). The State agreed to recommend a sentence of eight years on the distribution count and five years on the weapons charge, with the sentences to run concurrently. The State also agreed to dismiss the remaining counts.
Defendant first challenges the finding of probable cause to justify the issuance of the search warrant for his residence. He claims there was no corroboration for the informant's observations of drugs in defendant's apartment and the informant's statements were placed in the affidavit supporting the search warrant with "reckless disregard for their truth" contrary to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). We disagree.
In State v. Keyes, 184 N.J. 541 (2005), our Supreme Court provided guidance in assessing information provided by an informant:
To determine an informant's basis of knowledge the court must decide whether the tip reveals "expressly or clearly" how the informant became aware of the alleged criminal activity. . . . [and whether] "the nature and details revealed in the tip . . . imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source." . . . [T]he information will be deemed to have come from a trustworthy source if the informant provides "sufficient detail in the tip or recount[s] information that could not otherwise be
attributed to circulating rumors or easily gleaned by a casual observer."
[Id. at 555-56 (quoting State v. Smith, 155 N.J. 83, 94-95 (1998)).]
On the first day of Officer Goodman's surveillance of the Randolph Avenue location, he observed defendant engaging in several apparent drug transactions. After the informant's first controlled purchase of cocaine from defendant, the informant provided very specific information regarding defendant, including the address of his residence, the name of his wife/girlfriend with whom he resided, and where defendant kept his drugs and drug proceeds. Goodman attempted to verify this information by following defendant's vehicle to the Union Street address where he observed the defendant park. Goodman later obtained a list of residents of the Union Street building which confirmed the informant's information.
Information provided by the informant on October 22, 2008, was equally detailed, including the specific packaging of the drugs (zip lock bags for marijuana and a clear sandwich bag for cocaine vials), the specific location of the drugs (in a lockbox inside defendant's bedroom), and the presence of a scale.
On November 9, 2008, even more specificity was provided by the informant in the form of an estimate of the amount of drugs present in the lockbox (two ounces of cocaine and several bricks of heroin).
On November 10, 2008, when the informant again purchased cocaine from defendant at Union Street, he reported to Goodman that he went to the fifteenth floor of defendant's building, entered his apartment, and asked defendant for a "bottle." Defendant went into the bedroom and returned with a vial that he gave to the informant in exchange for a twenty dollar bill. Defendant gave the informant change which the informant returned to Goodman.
On November 11, 2008, Goodman observed the informant enter the Randolph Avenue location and emerge a few minutes later with one glassine bag of heroin.
The motion judge determined that the informant's "uncontested statements" along with Officer Goodman's observations of the informant's transactions with defendant at the Randolph Avenue location, supported a finding of probable cause.
Our courts have consistently held that "a search executed pursuant to a warrant is presumed to be valid and that a defendant challenging its validity has the burden to prove that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable." Keyes, supra, 184 N.J. at 554 (internal quotation marks omitted).
Information that police receive from confidential informants may serve as a valid basis for a court to find probable cause and issue a search warrant. However, there must be substantial evidence in the record to support the informant's statements.
[Id. at 555 (quoting State v. Novembrino, 105 N.J. 95, 123 (1987)).]
While Goodman's affidavit contained scant information regarding this informant's past reliability, "[a] deficiency in one . . . factor[] may be compensated for . . . by some other indicia of reliability." State v. Zutic, 155 N.J. 103, 110-11 (1998) (internal quotation marks omitted). The observations of Officer Goodman combined with the controlled drug buys and the corroboration of the informant's information, gave the trial judge an adequate basis to make an independent evaluation sufficient to establish the informant's present veracity.
In State v. Sullivan, 169 N.J. 204, 217 (2001), the Supreme Court held that although no one corroborating fact is outcome determinative, "a controlled drug buy typically will be persuasive evidence in establishing probable cause." When a successful controlled drug buy is coupled with at least one additional corroborating circumstance, it typically suffices to demonstrate that the police, under the totality of the circumstances, had probable cause. State v. Jones, 179 N.J. 377, 389-90 (2004). Here, police corroboration of the informant's information substantially supports the motion judge's finding of probable cause to search defendant's Union Street apartment.
Defendant next argues that the identity of the informant should have been disclosed because "the case against defendant rested solely on the acts by the informant." Again, we disagree.
The State may decline to disclose the identity of a police informant who furnishes law enforcement officers with information regarding violations of the law. State v. Milligan, 71 N.J. 373, 380-83 (1976). See also N.J.S.A. 2A:84A-28; N.J.R.E. 516.
This privilege is not absolute. State v. Florez, 134 N.J. 570, 578 (1994); Milligan, supra, 71 N.J. at 383. In order to warrant disclosure, the defendant must demonstrate the materiality of the informer's identity or testimony. Milligan, supra, 71 N.J. at 383-90. Without such a strong showing, "courts will generally deny a request for disclosure." Florez, supra, 134 N.J. at 578.
In determining whether to require disclosure of a confidential informant, a court must balance "the public interest in protecting the flow of information against the individual's right to prepare his defense, . . . taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Milligan, supra, 71 N.J. at 384 (quoting Roviaro v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639, 646 (1957)). In State v. Burnett, 42 N.J. 377, 386 (1964), the Court observed that disclosure may be warranted in the trial of a criminal charge where "the need for a truthful verdict outweighs society's need for the informer privilege[,]" but may not be necessary on a motion to suppress.
Applying these principles to the facts of this case, we find that the record does not support defendant's contention that disclosure of the informant's identity was warranted. Defendant's motion to suppress was based on his claim that the informant lied when he told Officer Goodman that he went to defendant's apartment and purchased drugs. However, in deciding defendant's motion, the trial judge relied solely on what he referred to as the "uncontested statements" of fact which included:
the numerous CDS transactions which were observed by Officer [Goodman] at [] Randolph Avenue, and the [d]efendant's arrival at these transactions immediately after leaving [] Union Street, where the [informant] had expressed knowledge that the [d]efendant
stored CDS, and returning to that address immediately after conducting the CDS transactions.
We agree that these uncontested observations, standing alone, supported the finding of probable cause. Defendant has failed to demonstrate that disclosure of the informant's identity was essential to a fair determination of the issues.
We find defendant's other arguments challenging the search warrant, including the attacks on Officer Goodman's credibility, to lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2).
Finally, defendant challenges his sentence. He notes that the judgment of conviction does not indicate whether the two sentences are to run concurrently or consecutively. The parties agree that the two sentences were to run concurrently. N.J.S.A. 2C:44-5 requires that when multiple sentences of imprisonment are imposed for more than one offense, "such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." As the judgment of conviction does not indicate that the sentences are to run concurrently, we remand for the entry of an amended judgment of conviction consistent with the plea agreement.
We find that defendant's other challenges to his sentence lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2).
Defendant's convictions and sentence are affirmed, but we remand for the entry of an amended judgment of conviction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION