Opinion
DOCKET NO. A-4577-13T2
04-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEFFREY A. THRASYBULE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-07-1105. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant entered a conditional guilty plea to one count of third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11), and was sentenced to a term of four years with a minimum period of parole ineligibility of eighteen months. He challenges both the order denying his motion to suppress evidence and his sentence, presenting the following arguments for our consideration:
POINT I
THE MARIJUANA WAS DISCOVERED AND SEIZED IN VIOLATION OF THE CONSTITUTIONAL PROHIBITION AGAINST UNREASONABLE SEARCHES. THEREFORE, THIS COURT SHOULD REVERSE THE LOWER COURT'S ORDER DENYING THE MOTION TO SUPPRESS EVIDENCE.
A. THE OFFICERS LACKED A REASONABLE, ARTICULABLE BASIS TO BELIEVE THAT MR. THRASYBULE WAS ARMED AND DANGEROUS.
B. THE STATE FAILED TO DEMONSTRATE THAT DETECTIVE-SERGEANT YOUNG DID NOT MANIPULATE THE MARIJUANA IN MR. THRASYBULE'S WAISTBAND BEFORE DETERMINING THAT IT WAS CONTRABAND.
C. THE ADDITIONAL MARIJUANA DISCOVERED IN MR. THRASYBULE'S PANT LEG DOES NOT FALL WITHIN THE PURVIEW OF A SEARCH INCIDENT TO A LAWFUL ARREST.
POINT II
IN THE ALTERNATIVE, THIS COURT SHOULD REMAND THE MATTER FOR RESENTENCING.
A. THE SENTENCING COURT FAILED TO ADEQUATELY EXPLAIN ITS FINDING OF AGGRAVATING FACTORS THREE AND NINE.
B. THE IMPOSITION OF A DISCRETIONARY PAROLE DISQUALIFIER WAS NEITHER MANDATORY NOR WARRANTED, AND IT SHOULD THEREFORE BE VACATED.
After considering these arguments in light of the record and applicable legal principles, we find no merit in defendant's challenge to the order denying his suppression motion but remand for re-sentencing.
I.
The charge arose from evidence obtained following a motor vehicle stop of defendant by members of the South Plainfield Police Department's narcotics unit on May 4, 2012. Four officers were patrolling the area. Detective John Oranchak and Detective Sergeant Christian Young were in one unmarked vehicle and Detectives Michael Coffey and Michael Smith were in separate vehicles.
All four officers knew defendant from prior investigations and encounters. They were also aware defendant was a suspect in a shooting homicide and had been charged with possession of a firearm by a convicted felon. In addition, Young stopped defendant approximately one year earlier, leading to an arrest for a drug offense, and also stopped him several months later for driving while his license was suspended. Oranchak had conducted a motor vehicle stop of defendant one year earlier. Coffey had stopped defendant for two motor vehicle violations.
After observing defendant driving on May 4, 2012, Young and Oranchak confirmed that his driving privileges were suspended by using a mobile computer terminal in their vehicle. They alerted the other officers and followed defendant to an area that would be safe for them to pull him over.
After the officers signaled him to pull over, defendant slowed down, pulled to the right and applied his brakes intermittently. Oranchak and Coffey testified that, after pulling over, defendant continued to "creep" the car forward rather than putting it in "park" and appeared to be watching the officers in his rear-view mirror. They suspected he was preparing to flee after they got out of their vehicle to approach him on foot.
Coffey walked to the driver's side of defendant's vehicle; Smith walked to the passenger side. They instructed him to put the car in park. Coffey testified that he could smell the odor of marijuana through the open driver's side window. Defendant was ordered out of the vehicle and taken to the rear of his car.
A pat-down search for weapons was conducted of defendant's groin area, waistline and pockets. Young detected a "golfball sized bag" in defendant's right front pocket. Based upon his experience, he was confident the object was marijuana. He retrieved the item, which was marijuana, and continued the patdown of defendant. Young then recovered a larger bag of marijuana from a location under defendant's pants near his ankle.
Defendant was indicted on three counts of drug offenses: fourth-degree possession of marijuana (count one), third-degree possession of marijuana with intent to distribute (count two), and one count of second-degree possession of marijuana with intent to distribute within five hundred feet of public property.
In addition to the testimony from Oranchak, Coffey and Young, the evidence at the suppression hearing included a video recording of the motor vehicle stop, taken from a mobile video recorder in Young's and Oranchak's vehicle, and an audio recording of the officers' radio transmissions. The trial judge denied the suppression motion and issued a written statement of reasons. In his written opinion, the trial judge accepted the version of events provided by the officers and concluded they had "more than reasonable suspicion that [d]efendant was committing an offense" when they stopped him for driving while his privileges were suspended. The judge found the patdown search of defendant was justified in light of the officers' knowledge that defendant had a history of carrying weapons and their concern defendant was a flight risk. The judge further found that, under the "plain feel" doctrine, the marijuana was properly seized from defendant's waistband. The judge reasoned that this recovery gave the officers probable cause to arrest defendant, justifying the search incident to arrest that led to the recovery of the marijuana from defendant's pant leg.
Defendant entered a guilty plea to count two pursuant to a plea agreement in which the State agreed to recommend a sentence of four years imprisonment with a parole ineligibility period of two years. The judge sentenced defendant to four years incarceration but reduced the minimum period of parole ineligibility to eighteen months.
II.
Defendant argues that the protective frisk was void ab initio because neither his conduct nor his prior record provided the officers with a reasonable, articulable basis for concluding he was armed and dangerous. He argues further that the State failed to establish that Young did not manipulate the marijuana found in defendant's waistband before determining it was contraband and that the seizure of marijuana from his pant leg did not fall within the scope of a search incident to an arrest. We disagree and conclude defendant's argument lacks sufficient merit to warrant discussion beyond the following brief comments. R. 2:11-3(e)(2).
Before the trial court, defendant also contested the officers' identification of him and the initial stop. He has not presented that argument on appeal.
In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted). In this case, the trial judge's findings were supported by the unrefuted testimony offered by the police officers. Because those findings were "substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case," they are entitled to our deference. Id. at 244 (citation omitted).
Using those findings as the mooring for the applicable legal analysis, we agree with the trial judge that: (1) the officers' knowledge that defendant was driving while his privileges were suspended provided them with reasonable and articulable suspicion an offense was being committed, justifying the motor vehicle stop, see State v. Amelio, 197 N.J. 207 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009); (2) the officers' knowledge of defendant's history of carrying weapons and concern he was a flight risk justified the patdown search; (3) the marijuana retrieved from defendant's waistband was properly seized pursuant to the "plain feel" doctrine; and (4) the discovery of that marijuana provided the officers with probable cause to arrest defendant and conduct a search incident to arrest, which resulted in the lawful seizure of the marijuana from defendant's pant leg.
III.
Defendant also argues we should remand for re-sentencing because the sentencing court failed to adequately support its findings of aggravating factors and the discretionary parole disqualifier was not warranted. We agree a remand is required.
A.
The trial judge found aggravating factors three and nine applicable, N.J.S.A. 2C:44-1(a)(3) and (9). Defendant has a significant criminal history that was discussed by the court and both the prosecutor and defense counsel. The trial judge observed defendant had three adjudications as a juvenile, four municipal court dispositions and four indictable convictions. The judge further observed defendant had the benefit of an admission to the pretrial intervention program (from which he was terminated), and, after being sentenced to probation on a different charge, had that probation revoked.
The trial court must expressly state the reasons for imposing consecutive sentences or risk remand for resentencing. State v. Miller, 108 N.J. 112, 122 (1987). However, "where the facts and circumstances leave little doubt as to the propriety of the sentence imposed," and where "there is no showing that the sentence is clearly mistaken," the appellate court may affirm. State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.) (citation omitted), certif. denied, 177 N.J. 492 (2003).
Although the judge did not specifically tie the facts he noted regarding defendant's criminal history to his findings on the aggravating factors, it is evident from the record that the judge's discussion of defendant's history of convictions and failures to comply with sentences designed to assist him to rehabilitate without incarceration supported the judge's findings of aggravating factors. Therefore, we find adequate support for the sentence imposed.
B.
Defendant also challenges the imposition of a period of parole ineligibility.
Defendant's plea agreement included the prosecutor's recommendation, pursuant to the Attorney General's Brimage guidelines, that the sentence not exceed four years with a two-year period of parole ineligibility. The prosecutor also agreed to refrain from seeking an extended term for defendant.
State v. Brimage, 153 N.J. 1 (1998). --------
At sentencing, defendant's trial counsel initially advocated for the imposition of a flat three-year sentence. The prosecutor contended that the judge could not "deviate from the plea" because defendant's offer was made pursuant to the Brimage guidelines and he was "extended term mandatory." After defense counsel challenged the prosecutor's conclusion, the judge asked the prosecutor to respond. The prosecutor noted that defendant pled guilty to a charge of possession with intent and because he had prior convictions for that offense, he was "mandatory extended term." The prosecutor then explained how a "Brimage worksheet" was prepared and that the result provided a basis for sentencing defendant to an enhanced extended term. In response, defendant's attorney modified his request based upon a premise that a flat term could not be imposed, and asked the court to impose a one-year period of parole ineligibility.
The trial judge did not explicitly state whether he agreed with the prosecutor's statement and that he could not "deviate from the plea offer." It is clear the trial judge implicitly rejected the prosecutor's attempt to handcuff him to the plea offer because he imposed a period of parole ineligibility that was lower than what was included in the plea offer.
However, the judge did not provide findings specific to the imposition of a period of parole-ineligibility beyond his statement that the sentence was "part and parcel of a plea agreement that [defense] Counsel negotiated" with the prosecutor. This was insufficient to satisfy the statutory requirements for the imposition of a period of parole ineligibility.
The decision to impose a period of parole ineligibility follows a determination of the appropriate sentence and is governed by N.J.S.A. 2C:43-6(b), which provides:
As part of a sentence for any crime, where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors . . . the court may fix a minimum term not to exceed one-half of the term set pursuant to subsection a., or one-half of the term set pursuant to a maximum period of incarceration for a crime set forth in any statute other than this code, during which the defendant shall not be eligible for parole.
[(Emphasis added).]
In this case, the trial judge did not make a finding that the aggravating factors "substantially" outweighed the mitigating factors. Moreover, the Supreme Court has instructed that a different standard applies for weighing aggravating and mitigating factors in determining a sentence as opposed to the weighing conducted in determining whether a parole ineligibility period is warranted. A court decides "whether there is a preponderance of aggravating or mitigating factors" in making the initial sentencing determination. State v. Kruse, 105 N.J. 354, 359 (1987). "When determining parole ineligibility, by contrast, the court must be clearly convinced that the aggravating factors substantially outweigh the mitigating factors. The different standard reflects the fact that [p]eriods of parole ineligibility are the exception and not the rule. They are not to be treated as routine or commonplace." Ibid. (citation omitted). Our Supreme Court has further emphasized that, in imposing a period of parole ineligibility, the court must "specifically place on the record the aggravating factors . . . which justify the imposition of a minimum term," as required by N.J.S.A. 2C:44-1(f)(1). State v. Case, 220 N.J. 49, 66 (2014) (citation omitted).
Certainly, the fact the trial judge found no mitigating factors here — a conclusion not challenged on appeal — implies that the imposition of a period of parole ineligibility was rooted in the necessary finding. But the statute does not authorize the imposition of a minimum term based upon the absence of mitigating factors or the prosecutor's recommendation in a plea agreement. We are therefore constrained to remand this matter for re-sentencing so the trial judge may set forth findings regarding the appropriateness of a minimum period of parole ineligibility.
We affirm defendant's conviction and remand for further proceedings consistent with this opinion. 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