Opinion
DOCKET NO. A-1788-13T1
04-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JIMMAR S. ROBINSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-12-1240. Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A Mercer County Grand Jury returned Indictment No. 09-12-1240, charging defendant Jimmar Robinson and Joy Ingram with third degree possession of phencyclidine (PCP), N.J.S.A. 2C:35-10a(1) and N.J.S.A. 2C:2-6 (count one); first degree possession of PCP with intent to distribute, N.J.S.A. 2C:35-5b(6), N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:2-6 (count two); third degree possession of PCP with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5b(6), N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:2-6 (count three); and second degree possession of PCP with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1, N.J.S.A. 2C:35-5b(6), N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:2-6 (count four).
The charges against Joy Ingram were dismissed.
Defendant filed a motion to suppress evidence seized by the Trenton Police Department pursuant to search warrants, arguing they were not supported by probable cause. In addressing the motion, the trial court found an evidentiary hearing was not warranted because defendant failed to make a substantial preliminary showing of falsity as required by Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672 (1978). After considering the arguments of counsel and reviewing in depth the affidavit supporting the search warrant, Judge Mark J. Fleming denied defendant's motion. Judge Fleming found the facts disclosed in the affidavit established probable cause to support the issuance of the warrants. Judge Fleming explained his reasons in a memorandum of opinion dated October 5, 2012.
Following the denial of his motion to suppress, defendant negotiated an agreement with the State through which he pled guilty to first degree possession with intent to distribute PCP, N.J.S.A. 2C:35-5b(6). Under the terms of the plea agreement, this charge would be treated as a second degree offense for sentencing purposes. The court sentenced defendant to a seven-year term of imprisonment with a three-and-a-half-year period of parole ineligibility.
In this appeal, defendant argues the trial court erred in denying his motion to suppress because the information contained within the four corners of the affidavit was insufficient as a matter of law to establish probable cause. Defendant also challenges the sentence imposed by the court as excessive because the sentencing judge did not properly consider certain mitigating factors. We reject these arguments and affirm.
I.
On September 11, 2009, City of Trenton Detective Matthew Bledsoe executed three search warrants for defendant, a 1991 maroon Lexus, and a two-and-a-half story, single family home. The search warrants were predicated on an affidavit executed by Bledsoe, describing in detail the investigation that uncovered the sale of illicit drugs by defendant.
Although the record included the complete address of this single family home, we have opted not to disclose this information in this opinion to protect the privacy of anyone who may be currently residing at this address.
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Specifically, Bledsoe averred that he was first apprised of this situation in August 2009 by a "reliable and confidential informant" (CI). The CI informed Bledsoe that a man identified as "E" was selling various quantities of PCP "ranging from single cigarettes dipped in [PCP] to full bottles of [PCP]." According to the CI, "E" would conduct the sales from his residence or "would cross the street from his residence and meet suspected purchasers . . . on a railroad track bed that runs across [the address where the property is located]" or at an unknown residence on South Walter Avenue.
Based on this information, Bledsoe began surveillance in the area of the particular property on August 26, 2009. He had "a clear and unobstructed view of the immediate area of [the single family residence] as well as the track bed area[.]" Bledsoe observed
[a] black male arrive in front of [the single family residence]. This black man, wearing a white t-shirt and dark colored shorts, parked and exited from a 1991 Lexus, maroon in color, bearing New Jersey [XXX-XXX].
The black male then walked up the front steps to [the single family residence] and entered into the residence without knocking or hesitating. Approximately two to three minutes later the male emerged from the residence. He then proceeded directly across the street towards the track bed. As he crossed the street, [Bledsoe] observed that he was carrying two cigarettes that appeared to be coated in a liquid substance. The black male was carrying the cigarettes by the filter and hanging downward, in a manner that suggests that the black male did not want to make contact with the wet portion of the cigarette.
Based on Bledsoe's training and experience in the field of narcotics investigation, he concluded this man, who was subsequently identified as defendant, was holding these two cigarettes in this peculiar fashion deliberately to avoid making physical contact with the powerful narcotic PCP. Defendant met with another African-American man on the track bed and exchanged the two presumably PCP-laced cigarettes for an unknown amount of currency. Defendant then returned directly to the single family residence.
A short time thereafter, an unidentified woman parked her car in front of the single family residence and appeared to make a call on a cell phone. Defendant then exited the residence carrying a cigarette that "appeared to be coated in a liquid substance" in the same manner described earlier. Defendant exchanged the cigarette for an unknown amount of currency before returning to the residence.
A few days later, Bledsoe conducted a controlled buy through the CI at the single family residence. After ensuring the CI was "free and clear of any currency and or contraband," Bledsoe gave the CI money from the Trenton Police Department Tactical Anti-Crime Unit's Undercover Funds. No search was made of the CI's vehicle, which the CI drove to and from the controlled buy. Bledsoe maintained a constant surveillance throughout the buy, which occurred on the porch, and observed defendant
reach[] down and retrieve[] a bottle from his pocket on his pants. [Defendant] then proceeded to dip a cigarette into the bottle and hand[ed] it over to [the CI]. [The CI] then handed [defendant] the provided United States Currency and returned to the vehicle. While still under constant surveillance, [the CI] proceeded to a pre-arranged location where [the CI] handed over one Newport cigarette that was coated with an oily substance believed to be [PCP]. [The CI] stated that the liquid coated cigarette, suspected to be [PCP], was just purchased from [defendant] at [the single family residence]. [The CI] was then searched again and found to be free and clear of any currency or contraband.
The suspected PCP cigarette was given to the Tactical Anti-Crime Unit Office to be forwarded to the State Police Laboratory for chemical analysis.
Over the ensuing days, Bledsoe observed defendant engage in six additional exchanges similar to those described herein. All of these illicit transactions involved apparently wet cigarettes with the exception of one. During that exchange, Bledsoe observed defendant "reach[] into his left front pocket and retrieve[] a clear glass bottle containing a yellow tinted liquid, that [Bledsoe] recognized as being consistent to the color and packaging of [PCP][.]" Based on Bledsoe's training and experience, and "the nature of the investigation," he "believed that [defendant] had just sold a bottle of [PCP]."
Finally, Bledsoe organized one more controlled buy through the CI, which was conducted following the same procedure used during the first controlled buy. The CI met the African-American woman seen earlier in the surveillance with defendant at the front door of the single family residence. There, the woman handed the CI a cigarette that appeared to be wet, and in turn the CI handed her an undisclosed amount of currency.
Bledsoe described these events in great detail in his affidavit in support of the search warrant. On the day police officers executed the search warrants, they seized two glass bottles suspected to contain PCP, Newport cigarettes, a "Prestone Anti-Freeze" container suspected to contain PCP, a cell phone, and $75 8 in paper currency of various denominations.
Based on these facts, Judge Fleming determined that the search warrants were properly supported by probable cause. At the sentencing hearing, the judge heard from counsel and reviewed defendant's presentence investigation report. The court found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a), but did not "weigh [factor six] heavily." After analyzing the mitigating factors argued by the defense, the court found mitigating factor eleven, and gave "partial credit" to mitigating factors six and twelve. N.J.S.A. 2C:44-1(b).
II.
Against this record, defendant appeals raising the following arguments:
POINT I
THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO SUPPRESS EVIDENCE SEIZED DURING THE EXECUTION OF THE SEARCH WARRANT BECAUSE THE SEARCH WARRANT AFFIDAVIT FAILED TO ESTABLISH PROBABLE CAUSE. U.S. CONST. ART. I, PARA 4; N.J. CONST. ART. I, PARA. 7.
POINT II
BECAUSE THE COURT REFUSED TO APPLY THREE MITIGATING FACTORS THAT WERE CLEARLY PRESENT ON THE RECORD, THE SENTENCE IMPOSED IN THIS MATTER IS EXCESSIVE.
Mindful of our standard of review, we are not persuaded by any of these arguments. It is well-settled that we "accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant." State v. Keyes, 184 N.J. 541, 554 (2005) (citation omitted). "[A] search executed pursuant to a warrant is presumed to be valid and . . . 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." Ibid. (internal quotations omitted).
We employ a totality of the circumstances test in assessing whether warrants are based on probable cause. Ibid. (citing State v. Novembrino, 105 N.J. 95, 122 (1987)). Probable cause may be based on information police receive from confidential informants so long as there is substantial evidence in the record to support the informant's statements. Id. at 555.
Here, the search warrants issued by the trial court were properly supported by a finding of probable cause. The CI informed Bledsoe of defendant's PCP sales and conducted two controlled buys. Bledsoe closely monitored the situation and conducted his own surveillance. He personally observed defendant engaged in the sale of PCP on numerous occasions. Judge Fleming noted these events in his memorandum of opinion. We discern no legal basis to disagree with his decision upholding the validity of the warrants.
We also reject defendant's challenge to his sentence as "excessive." Our Supreme Court has recently reaffirmed the scope of appellate review of a trial court's sentencing determinations. Writing for the Court in State v. Fuentes, 217 N.J. 57, 70 (2014), Justice Patterson cautioned us against substituting our "judgment for that of the sentencing court." Indeed, "[w]hen the aggravating and mitigating factors are identified, supported by competent, credible evidence in the record, and properly balanced, we must affirm the sentence and not second-guess the sentencing court, provided that the sentence does not 'shock the judicial conscience[.]'" State v. Case, 220 N.J. 49, 65 (2014) (citations omitted). Moreover, sentences imposed pursuant to a plea agreement are presumptively reasonable. Fuentes, supra, 217 N.J. at 70-71.
After considering the mitigating factors proffered by defendant during the sentencing hearing, Judge Fleming determined that factor eleven applied, and gave "partial credit" to factors six and twelve. We are satisfied that there is competent, credible evidence in the record to support Judge Fleming's decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION