Opinion
DOCKET NO. A-1087-14T2
04-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SIRHEEN WALKER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief; Lynne M. Glass, Volunteer Attorney, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 13-01-0003, 13-07-1438, and 14-01-0038. Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief; Lynne M. Glass, Volunteer Attorney, on the brief). PER CURIAM
On January 8, 2013, a Hudson County Grand Jury returned Indictment No. 13-01-0003, charging defendant Sirheen Walker with one count of fourth degree entering or surreptitiously remaining in a structure, knowing he was not licensed to do so, N.J.S.A. 2C:18-3a.
On July 10, 2013, a second Hudson County Grand Jury returned Indictment No. 13-07-1438, charging defendant with third degree possession of phencyclidine (PCP), N.J.S.A. 2C:35-10a(1); second degree possession of PCP with intent to dispense or distribute in a quantity of less than ten grams, N.J.S.A. 2C:35-5a(1), b(7); third degree possession of PCP with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; and second degree possession of PCP with intent to distribute within 500 feet of real property comprising a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1a.
On January 8, 2014, a third Hudson County Grand Jury returned Indictment No. 14-01-0038, charging defendant with third degree possession of heroin, N.J.S.A. 2C:35-10a(1); third degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3); third degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; and third degree conspiracy to distribute heroin, N.J.S.A. 2C:5-2, 2C:35-5b(3).
This Grand Jury also indicted Shariyf Higgins as Walker's codefendant.
Defendant moved before Judge John A. Young, Jr. to suppress the heroin seized by the Jersey City Police Department that led to his arrest on the charges reflected in Indictment No. 14-01-0038. Judge Young denied defendant's motion after considering the testimony presented at an evidentiary hearing by Sergeant Steven Trowbridge and Officer Ivan Rosario, both veterans of the Jersey City Police Department Narcotics Unit.
Sergeant Trowbridge was the first witness called by the State. He had been a Jersey City Police Officer for twenty-one years, and was a sergeant of the Narcotics Unit since 2007. Trowbridge testified that at approximately 10:30 a.m. on September 20, 2013, he was conducting surveillance on Orient Avenue in an unmarked police car. He described this area of Jersey City as "a very high narcotic area" and "an open-air drug market [that has] been a source of numerous citizen complaints and countless arrests for narcotics violations."
Trowbridge noticed a man on a bicycle stop in front of a particular address on Orient Avenue, call someone using his cellphone, count out currency until he reached a particular amount, and "just remain[] there waiting." Trowbridge remained in his car and continued to watch this individual for approximately six minutes until two men "pulled up" in a car and joined him. The man with the bicycle approached the passenger side of the car, which Trowbridge described as a "silver Mitsubishi." According to Trowbridge:
A. The male [with the bicycle] walked over to the car, handed the front passenger the currency. In exchange, it looked like he received small items. The car pulled out, the male walked away examining whatever he -- the items in his right hand.
Q. Okay. And what did you do? What did you believe that you had just witnessed, if anything?
A. I believed I witnessed a narcotics transaction.
Trowbridge decided to follow the silver Mitsubishi and radioed his location and direction of travel to other police units. Officer Rosario and his partner found the Mitsubishi and placed their police car in front of it to stop it, while Trowbridge blocked the Mitsubishi from behind. At this point, both unmarked police cars had activated their emergency lights. Rosario approached the occupants of the Mitsubishi from the passenger side, while Rosario's partner approached from the driver side. Rosario identified defendant as the man seated in the passenger side of the Mitsubishi.
Rosario gave the following description of what occurred when he approached the Mitsubishi:
A. As I approached Mr. Walker, who was a passenger in the vehicle, I observed approximately two bundles on his lap.
Q. What exactly is a bundle?
A. A bundle is a -- it's a set of 10 glassine bags containing suspected heroin.
Q. And you saw two of those on his lap?
A. Yes.
Q. Okay. And in response to the observation, what did you do?
A. I immediately placed him -- oh, I recovered the CDS, and I immediately placed him under arrest.
Rosario also testified that he noticed two more bundles of heroin located in the console of the Mitsubishi between the front seats. The police also found two fifty-bag "bricks" of heroin in the right front pocket of the sweatpants defendant was wearing. This contraband was discovered during the search of defendant's person incident to his arrest. One of the "bricks" of heroin was labelled "World Wars"; the other was labelled "Hit Man." The police did not find the man on the bicycle.
As the purchaser in the illicit narcotics transaction allegedly witnessed by Sergeant Trowbridge, the man on the bicycle was the catalyst that set in motion the events that provided the constitutional justification for stopping the Mitsubishi. --------
Against this record, Judge Young found the motor vehicle stop by the police was constitutionally justifiable. Relying on State v. Nishina, 175 N.J. 502 (2003), and State v. Carty, 170 N.J. 632 (2002), Judge Young accepted as credible Sergeant Trowbridge's testimony describing how "he observed the drug transaction between a male on a bicycle and the occupants of a silver Mitsubishi and then radioed this information to parameter units, specifically Rosario, for a stop to be effected." Although he acknowledged defendant's argument that the police did not recover any money or a cellphone from defendant or the driver of the Mitsubishi, Judge Young found Sergeant Trowbridge's testimony credible.
Defendant thereafter entered into a negotiated agreement with the State through which he pled guilty to third degree distribution of heroin within 1000 feet of school property under Count Three of Indictment No. 14-01-00038; second degree distribution of PCP under Count Two of Indictment No. 13-07-1438; and fourth degree entering or surreptitiously remaining in a structure, knowing he was not licensed to do so under Indictment No. 13-01-0003.
Under the terms of the plea agreement, the State recommended defendant be sentenced to a term of seven years, with forty-two months of parole ineligibility on the charges related to the possession and distribution of illicit narcotics, and to a concurrent term of eighteen months on the fourth degree offense of knowingly entering a structure without license to do so. On September 5, 2014, Judge Young sentenced defendant in accordance with the plea agreement.
Defendant now appeals raising the following argument:
POINT ONE
THE TRIAL COURT ERRONEOUSLY DENIED WALKER'S MOTION TO SUPPRESS.
Our standard of review is well-settled.
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions."
[State v. Elders, 192 N.J. 224, 244 (2007) (citations omitted).]
Mindful of these guiding principles of appellate jurisprudence, we reject defendant's argument and affirm substantially for the reasons expressed by Judge Young in his well-reasoned oral opinion delivered from the bench on June 9, 2014. See 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