Opinion
DOCKET NO. A-4908-12T1
02-17-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAMSUDDI D. LOCKETT, a/k/a SHAM SIDDIN AZZAAM LOCKETT, SHAM S. LOCKETT, SHAM NANTAMBU, DONALD SHAM, SHAMSUDDIN LOCKETT, SHAMSUDIN LOCKET, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-10-01919; 11-09-1661; 13-02-0311. Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Pursuant to a negotiated agreement with the State, defendant Shamsuddi D. Lockett pled guilty to one count of third degree possession of cocaine, N.J.S.A. 2C:35-10a(1), under Essex County Indictment No. 11-09-1661. Consistent with the terms of the plea agreement, the trial court sentenced defendant to a four year term of incarceration. In pleading guilty, defendant reserved the right to challenge the trial court's decision denying his motion to suppress evidence related to Indictment No. 11-09-1661. After reviewing the record developed at the N.J.R.E. 104 hearing conducted by the trial court to adjudicate defendant's motion, we affirm.
The plea agreement also required defendant to plead guilty to an unrelated charge of third degree possession of cocaine on March 2, 2011, under Indictment No. 11-10-1919, and third degree burglary, N.J.S.A. 2C:18-2, on May 7, 2012, under Indictment No. 13-02-0311.
The court sentenced defendant to two concurrent four-year terms on the two third degree offenses reflected in the unrelated indictments.
On the afternoon of June 3, 2011, Officer Ruben Carrero, a six-year veteran of the Newark Police Department, and two other officers were assigned to search the public areas of a public housing building located on Johnson Avenue. Carrero described the building as consisting of two side-by-side, five to six story structures dedicated for public housing. Both of these buildings generated a large number of "narcotics and quality of life complaints."
Carrero's and his two fellow officers' charge that afternoon was to conduct a complete "vertical sweep" of the public areas of the building, starting in the basement and working their way up through the stairwell leading to each floor. Their objective was to "address any quality of life issues [such as] people hanging out, people drinking in the hallways, et cetera, et cetera." Wearing their police uniforms, they began at the basement because they found the door was "unlocked" and "half-way open." As they walked down the steps that lead to the basement area, they came upon defendant who was in the basement "just walking towards the steps."
At this point, Carrero noticed defendant had "a gray sock in his [right] hand." According to Carrero, defendant seemed startled when he saw the three officers together, and threw the sock on the floor. Carrero testified he recovered the sock from the floor while the other two officers detained defendant. Carrero looked inside the sock and found "vials of cocaine" and "envelopes filled with heroin." Thereafter the officers arrested defendant on the charge of possession of unlawful narcotics. The sock and narcotics were identified and admitted into evidence at the N.J.R.E. 104 hearing, without objection by defense counsel. Carrero was the only witness to testify on behalf of the State at the hearing.
Defendant testified at the motion hearing. He stipulated that he had been convicted on indictable offenses in 1990, 1992, 2004, and 2005. Defendant admitted to being in the basement of the building at around noon on July 3, 2011. He claimed he was looking for "Victor the maintenance guy" because Victor had promised him "he was going to give [him] a job." When he realized Victor was not there:
I started getting high. I was getting high. After I finished, I was leaving out the building. Police came down there; a lady police and two guys. They - - they pat searched me. The sergeant said, "Let him go, if he ain't [got] nothing. Boom. They searched me. They ain't found something [sic].Defense counsel terminated his direct examination of defendant at this point.
The lady says, "Somebody ran. I saw somebody ran." The sergeant then said, "No. Hold him." They searched 25, didn't find nothing. They went through the basement out of 25 into 23, came back with a gray sock and said, "Were you wearing this?" That was it.
We infer "25" is a reference to the address of the building where defendant was arrested. --------
The motion judge found Carrero's testimony "basically credible." He also found parts of defendant's testimony credible. Namely, that he was in the basement of the building after having used unlawful narcotics when the police came upon him. The judge also accepted as credible Carrero's account of how the sock containing the cocaine and heroin was discovered and seized by the police. In light of these findings, the judge denied defendant's motion to suppress.
Against this record, defendant now appeals raising the following argument:
POINT I
THE TRIAL COURT'S DENIAL OF LOCKETT'S MOTION TO SUPPRESS MUST BE REVERSED BECAUSE THE STATE FAILED TO MEET ITS BURDEN OF ESTABLISHING THAT LOCKETT VOLUNTARILY ABANDONED THE DRUGS.
As an appellate court, we "are bound to defer to the factual findings of the trial court. State v. Reece, 222 N.J. 154, 166 (2015). This deferential standard of review is particularly appropriate in cases such as this, in which credibility findings "'are influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.'" State v. Kuropchak, 221 N.J. 368, 382 (2015), (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). Here, our review is limited to determining "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
The motion judge found defendant had no expectation of privacy in the sock he discarded in the presence of the police officers. Indeed, defendant disavowed any knowledge or connection of the sock, including its unlawful content. "To invoke the protections of the Fourth Amendment and its New Jersey counterpart, Article I, Paragraph 7, [a] defendant must show that a reasonable or legitimate expectation of privacy was trammeled by government authorities." State v. Evers, 175 N.J. 355, 368-69 (2003). (Citing Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d 220, 226 (1979); State v. Marshall, 123 N.J. 1, 66 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)). The record before us supports the motion judge's holding. Defendant's act of discarding the sock gave the police officers the right to inspect this item of clothing. Whatever expectations of privacy defendant may have had in the contents of the sock were abandoned the moment he discarded it.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION