Opinion
DOCKET NO. A-2747-14T3
04-28-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEROME ROBERTS, a/k/a DEWAYNE HUGHES, LEE ROBERTS, CHARLES D. HUGHES, and JAMEEL JONES, Defendant-Appellant.
The Law Office of Robin Kay Lord, LLC, attorney for appellant (Ms. Lord and Alison Perrone, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 13-10-1295. The Law Office of Robin Kay Lord, LLC, attorney for appellant (Ms. Lord and Alison Perrone, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After his motion to suppress evidence seized pursuant to a search warrant was denied, defendant Jerome Roberts pled guilty pursuant to a plea agreement to one count of third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7. Defendant was sentenced in accordance with the plea agreement to an extended term of seven years with three and one-half years of parole ineligibility.
On appeal, defendant challenges the sufficiency of the search warrant affidavit and his agreed-upon sentence. We are unpersuaded by these arguments and affirm.
In July 2013, Detective Kevin Searing of the Mercer County Prosecutor's Office (MCPO), received information from a confidential informant (CI) that an individual known by the street name "Righteous" was distributing large quantities of heroin. The CI described Righteous as a forty to forty-five year old black male, approximately five feet, seven inches tall, and weighing between 180 and 200 pounds. The CI provided the address of Righteous' home on Division Street in Trenton, his cell phone number, and a description and the license plate number of a blue Dodge Ram pickup he drove.
The CI provided information to the MCPO on prior occasions, which led to the arrests of other individuals. From his street name, Detective Searing knew Righteous to be defendant Jerome Roberts from a prior investigation.
Detective Searing conducted a check of registered vehicles and learned that a 1994 blue Dodge Ram pickup was registered to defendant. However, defendant's driver's license listed a Mulberry Street address in Trenton, and Searing learned that a woman later identified as defendant's girlfriend resided at the Division Street address provided by the CI.
Detective Searing obtained a photo of defendant, and the CI identified the person depicted as Righteous. At Searing's direction, the CI called defendant on his cell phone and asked to purchase heroin. Defendant told the CI to meet him at a certain location in twenty minutes. Searing was able to overhear the entire conversation and provided the CI with money to purchase the drugs.
Other officers were informed of the anticipated sale, and a surveillance officer, Detective Angarone, reported that defendant's truck was parked in front of the Division Street address. As Detective Searing followed the CI's car to the prearranged location, Detective Angarone observed defendant leave the Division Street house, enter his truck, and drive to the location. Detective Searing had already arrived at the location when he observed defendant's truck arrive and park.
After observing defendant engage in what he believed to be another narcotics transaction with an unidentified male, Detective Searing watched as defendant approached the CI's car and enter the passenger-side door. Defendant then left the CI's car, walked to his truck, and drove off. Surveillance officers observed defendant return to the Division Street address. The CI also left and was followed by Searing to a prearranged location. There, the CI gave Searing the heroin he had just purchased from defendant.
On July 25, 2013, Detective Searing obtained a search warrant for the Division Street premises, defendant's person, and his Dodge pickup. The warrant was executed later that day and 2850 packets of heroin weighing 1.62 ounces were found in the living room of the Division Street premises. In addition, two digital scales were recovered from the kitchen, along with a trip itinerary and a checkbook, both bearing defendant's name. After defendant was arrested and read Miranda rights, he admitted that the heroin belonged to him.
On appeal, defendant raises the following points:
POINT ONE
THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT FAILED TO ESTABLISH PROBABLE CAUSE THAT CONTRABAND WOULD BE FOUND IN THE RESIDENCE. ACCORDINGLY, THE ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS MUST BE
REVERSED. U.S. CONST., AMEND [IV], XIV; N.J. CONST. (1947), ART. 1, PAR. 7.
POINT TWO
BECAUSE THE STATE FAILED TO SATISFY THE NOTICE REQUIREMENT OF THE REPEAT DRUG OFFENDER EXTENDED TERM STATUTE, N.J.S.A. 2C:43-6F, THIS COURT SHOULD RESENTENCE DEFENDANT TO AN ORDINARY TERM OF BETWEEN THREE AND FIVE YEARS.
Defendant first claims that the information provided in the affidavit submitted in support of the search warrant was insufficient to establish probable cause to believe contraband would be found in the Division Street premises. He argues that the CI's information fell "woefully short" of establishing probable cause because the CI was not established as trustworthy and reliable and the information was not sufficiently corroborated. We disagree.
Probable cause is the "indispensable criterion" for determining the validity of a search. State v. Novembrino, 105 N.J. 95, 107 (1987). The issuing court is required only to make a practical and realistic evaluation of the information presented on the issue of probable cause. State v. Kasabucki, 52 N.J. 110, 117 (1968). Once a search warrant is issued, it is "presumed to be valid, and defendant bears the burden of demonstrating that the warrant was issued without probable cause or that the search was otherwise unreasonable." State v. Chippero, 201 N.J. 14, 26 (2009) (quoting State v. Evers, 175 N.J. 355, 381 (2003)).
Our role in reviewing a probable cause determination in issuing a search warrant is limited to ensuring that the judge had a substantial basis for concluding that probable cause existed. United States v. Jones, 994 F.2d 1051, 1055 (3d Cir. 1993). We accord substantial deference to the discretionary determination resulting in the issuance of the search warrant. State v. Sullivan, 169 N.J. 204, 211 (2001).
Information provided by an informant may constitute a basis for a finding of probable cause, so long as there is a substantial basis for crediting the information. State v. Smith, 155 N.J. 83, 92, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998). Whether information conveyed by an informant provides a basis for probable cause "is determined by a standard that calls for consideration and analysis of all relevant circumstances." Ibid. An informant's veracity and basis of knowledge are the two most important factors in evaluating the informant's tip. Id. at 93. "A deficiency in one of those factors 'may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.'" State v. Zutic, 155 N.J. 103, 110-11 (1998) (quoting Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 2329, 76 L. Ed. 2d 527, 545 (1983)). Past instances of an informant's reliability are "probative of veracity, although [their] weight in the ultimate determination of probable cause may vary with the circumstances of each case." Smith, supra, 155 N.J. at 94.
The second factor, whether the informant had a basis of knowledge for the information provided to the police, "is relevant to a determination that the information was obtained in a reliable way." Ibid. An informant's basis of knowledge can be "disclosed by the informant if the tip itself relates expressly or clearly how the informant knows of the criminal activity." Ibid. If police corroborate "'information from which it can be inferred that the informant's tip was grounded on inside information, this corroboration is sufficient to satisfy the basis of knowledge prong' as well as the veracity prong." Id. at 96 (quoting Gates, supra, 462 U.S. at 270 n.22, 103 S. Ct. at 2349-50 n. 22, 76 L. Ed. 2d at 569 n.22 (White, J., concurring)).
Here, the motion judge found that the police corroborated the information provided by the CI by having the CI positively identify a photograph of defendant and by their surveillance of defendant at the Division Street premises. During that surveillance, officers observed defendant entering and leaving the premises following the controlled purchase of heroin by the CI. The judge also noted that members of the MCPO were familiar with defendant and that Detective Searing had sixteen years of experience.
Detective Searing's affidavit indicated that information provided by the CI in the past had led to arrests. Although no information was provided as to the number of arrests or whether they resulted in convictions, which would have strengthened the motion court's veracity finding, see State v. Keyes, 184 N.J. 541, 557 (2005), the additional information provided by the CI regarding defendant's drug dealing and the subsequent controlled purchase of heroin from defendant satisfies the veracity factor.
Similarly, the basis of knowledge prong has been satisfied through the CI's information that Righteous was selling large quantities of heroin from the Division Street premises; that purchases of heroin could be arranged by calling a cell phone number, which the CI provided; and that Righteous would instruct a prospective buyer to meet him at a prearranged location to complete the transaction. The CI provided a detailed physical description of Righteous and identified a photograph of defendant after Detective Searing recognized defendant from a prior investigation.
The subsequent controlled purchase provided "persuasive evidence" of probable cause by corroborating the CI's information. Sullivan, supra, 169 N.J. at 217. With Detective Searing listening, the CI called defendant and told him he wanted to purchase heroin. Defendant told the CI to meet him at a location in twenty minutes, and a surveillance officer observed defendant leave the Division Street residence, get into his pickup, and drive to the location. Searing observed defendant get into the CI's car and subsequently recovered the heroin the CI purchased from defendant just minutes later.
We are satisfied that the totality of the circumstances, including the CI's veracity, his basis of knowledge, and the extensive police corroboration of those two factors, provided the issuing court with a substantial basis to conclude that probable cause existed to support the search warrant.
Defendant next argues that the State failed to properly notice him, pursuant to Rule 3:21-4(e), that he would be subject to a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f). When defendant raised this point before the sentencing judge, who was not the judge who accepted defendant's guilty plea, the prosecutor noted that the plea had been extensively negotiated, defendant's counsel had been supplied with defendant's criminal history, and the plea form clearly indicated that defendant understood he would receive an extended term sentence. The prosecutor then offered to vacate the plea and permit the defendant to go to trial on the charges, an offer defendant promptly rejected.
Defendant conceded that he received oral notice, but claimed that was insufficient. The sentencing judge noted that the plea sheet contained notice of an extended term, the length of the term, and defendant's acknowledgment of that information. Although the plea judge did not specifically mention the extended term, the sentencing judge found compliance with Rule 3:21-4(e) because the plea judge "did go through the plea form and made sure that the defendant understood it, acknowledged it and reviewed it with his attorney."
The sentencing judge then offered to postpone sentencing to allow the State to formally notice defendant of its intent to seek an extended term. Defendant also rejected this offer and requested that he be sentenced that day.
Defendant now argues that the prosecutor's statement that he would be seeking an extended term sentence, the reference to an extended term in the plea form, and defendant's acknowledgment that he understood the provisions of the plea form did not satisfy the notice requirements of Rule 3:21-4(e). In her brief, defendant's appellate counsel cites no authority to support this position.
Rule 3:21-4(e) provides that a motion for an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3 or N.J.S.A. 2C:43-6(f) shall be filed by the prosecutor within fourteen days of the entry of defendant's guilty plea or the return of the verdict. The Rule further provides that:
Where the defendant is pleading guilty pursuant to a negotiated disposition, the prosecutor shall make the motion at or prior to the plea. If the negotiated disposition includes the recommendation of an extended term, the prosecutor's oral notice and the recordation of the extended term exposure in the plea form completed by defendant and reviewed on the record shall serve as the State's motion. For good cause shown the court may extend the time for filing the motion.
[R. 3:21-4(e) (emphasis added).]
At defendant's plea hearing on July 29, 2014, the State clearly announced that the negotiated plea agreement called for an extended term sentence:
[PROSECUTOR]: Your Honor, the agreement calls for the defendant to plead guilty to Count 3 to indictment possession with intent, school zone. It is an extended term. The State's offer is a seven with a three and a half. The State would dismiss the remaining charges in that indictment.
[DEFENSE COUNSEL]: Concurrent to violation of parole. Did you say that?
[PROSECUTOR]: That's accurate.
THE COURT: Concurrent to the violation of parole?
[DEFENSE COUNSEL]: Yes.
THE COURT: [Defense counsel], is that consistent with your understanding of the agreement?
[DEFENSE COUNSEL]: Yes, Your Honor. I've had the opportunity to discuss it with my client. It is acceptable to him and he wishes to enter a plea of guilty today pursuant to the offer.
Question seven of the plea form asked: "Did you enter a plea of guilty to any charges that require a mandatory period of parole ineligibility or a mandatory extended term?" The response "Yes" is circled after the question. In addition, question seven indicates the actual exposure of three years and six months imprisonment that is required under the mandatory extended term. In response to question thirteen, which asks to specify any sentence the prosecutor has agreed to recommend, "7 years w/a 3½ year stip concurrent to violation of parole" is written in. The plea form was signed by defendant, his counsel, and the prosecutor.
Defendant now requests that we vacate the extended term sentence and assume original jurisdiction to sentence defendant "to an ordinary term of between three and five years, or in the alternative, remand the matter for resentencing." We view this request through the prism of the prosecutor's prior offer to vacate the plea and try the case, and the sentencing judge's offer to postpone sentencing to allow the State to formally move for an extended term. Both offers were swiftly rejected by defendant, who now seeks to obtain a more lenient sentence from this court than he was able to negotiate with the prosecutor.
As we are satisfied that the plea form and the prosecutor's oral notice that the State was seeking an extended term was sufficient to satisfy Rule 3:21-4(e), and that defendant knowingly and voluntarily entered into the plea agreement with a full understanding of the sentence he would receive, we are convinced defendant's argument lacks sufficient merit to warrant any further discussion in our opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).