Opinion
DOCKET NO. A-5072-13T3
04-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. OLYMPIA A. WILLIAMS, a/k/a OLIVIA A. WILLIAMS, LIVIY WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Samuel Feder, Assistant Deputy Public Defender, of counsel and on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Leone. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-06-1686. Joseph E. Krakora, Public Defender, attorney for appellant (Samuel Feder, Assistant Deputy Public Defender, of counsel and on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Olympia A. Williams appeals from a conviction for third-degree possession of a counterfeit controlled dangerous substance (CDS) with intent to distribute. N.J.S.A. 2C:35-11(a)(3). She also appeals from the sentence of four years with a two-year parole bar. She raises the following points of argument on this appeal:
POINT I
THE POLICE LACKED PROBABLE CAUSE TO ARREST AND SEARCH DEFENDANT AND, THEREFORE, THE EVIDENCE RECOVERED FROM HER PERSON SHOULD HAVE BEEN SUPPRESSED.
POINT II
BECAUSE THE TRIAL COURT IMPOSED AN INHERENTLY INCONSISTENT SENTENCE AND ERRONEOUSLY BELIEVED THAT THE NEGOTIATED SENTENCE WAS BINDING UNDER BRIMAGE, THIS CASE MUST BE REMANDED FOR RESENTENCING.
We affirm the conviction. However, we remand for re-sentencing, because the offense to which defendant pled guilty did not carry a mandatory period of parole ineligibility, N.J.S.A. 2C:43-6(f), and therefore the trial court was not bound by the terms of the plea agreement under N.J.S.A. 2C:35-12. The trial court imposed the sentence in the mistaken belief that this was a contract plea.
A plea entered pursuant to N.J.S.A. 2C:35-12 is sometimes referred to as a "contract plea," because the trial court does not have discretion to impose a lower sentence than that set forth in the plea agreement.
I
Defendant's appeal of the conviction focuses on the denial of her suppression motion, after which she pled guilty. We affirm the conviction substantially for the reasons set forth by the trial judge in his comprehensive written opinion dated February 8, 2013. The judge's opinion thoroughly and correctly decided the issues and little further discussion is required here.
We briefly summarize the evidence at the suppression hearing. A police officer observed an individual in a distinctively striped shirt, who was seated in the driver's seat of a Dodge Durango vehicle, engaging in what appeared to be a sale of drugs with a male buyer. The officer also observed a woman leaning into the car from the passenger side. According to the officer, her entire upper body was inside the car. Based on that observation, the officer believed she may have handed drugs to the driver, who in turn handed them to the buyer. The woman later entered the car before it drove away. The officer arrested the buyer, who confessed to having drugs on his person, and turned over a small amount of crack cocaine. The buyer told the officer he bought the drugs from the driver of the Durango, whom the buyer described as a large black male wearing a striped shirt. The officer radioed dispatch with a description of the Durango vehicle and its occupants.
Shortly thereafter, another officer spotted the vehicle, pulled it over and arrested the occupants. A female officer was called to assist in searching defendant incident to the arrest. When the female officer started to search defendant, who was actively resisting the search, a bag of drugs fell out of defendant's clothing. A further search revealed more drugs hidden on defendant's person.
On this appeal, defendant does not deny that she was the woman the police officer initially spotted at the scene of the suspected drug sale. Nor does she challenge the search of her purse following her arrest.
On this appeal, as in the trial court, defendant argues that the police did not have probable cause to arrest her and that the search was invalid. We disagree. We defer to the trial judge's factual findings so long as they are supported by sufficient credible evidence, and we owe particular deference to his evaluation of witness credibility. State v. Vargas, 213 N.J. 301, 326-27 (2013). We review his legal conclusions de novo. Id. at 327.
In this case, the trial judge found that the police witnesses were more credible than the defense witnesses. He found the facts to be as the police described them. Having reviewed the record, we perceive no basis to disturb the judge's factual findings, and in light of those facts, the judge's legal conclusions are unassailable. The police had probable cause to arrest both defendant and the driver of the Durango, based on the first officer's observations. See State v. Moore, 181 N.J. 40, 46 (2004); State v. De Simone, 60 N.J. 319, 323-24 (1972). Once defendant was under arrest, the police conducted a lawful search incident to the arrest. See State v. Eckel, 185 N.J. 523 (2006). Moreover, defendant's obstructive conduct during the search provided an independent ground for arresting her. N.J.S.A. 2C:29-1(a); State v. Williams, 192 N.J. 1, 10-11 (2007); see State v. Reece, 222 N.J. 154, 172-73 (2015).
II
Next, defendant challenges the sentence of four years with a two-year parole bar. Defendant contends that the trial judge imposed the sentence in the mistaken belief that the sentence stated in the plea agreement was binding on the court, under N.J.S.A. 2C:35-12, because the prosecutor was waiving an otherwise mandatory three-year parole bar. N.J.S.A. 2C:43-6(f). The State's brief has not responded to that argument, and we conclude that defendant is correct.
Defendant pled guilty to possession of imitation CDS, N.J.S.A. 2C:35-11(a)(3), which is not one of the offenses listed in N.J.S.A. 2C:43-6(f) as requiring the court to impose a mandatory three-year period of parole ineligibility (the listed offenses). Consequently, this plea agreement was not controlled by N.J.S.A. 2C:35-12, which removes the court's sentencing discretion with respect to plea agreements for the listed offenses. However, at the sentencing, the judge indicated that the law "tie[d]" his hands and he was required to impose the two-year period of parole ineligibility. Consequently, while we affirm the conviction, we must remand this matter for re-sentencing, which shall be accomplished within thirty days of the date of this opinion.
The judge indicated to defendant that once she served the two years, he would consider re-sentencing her to a drug treatment program. On remand, the court has that discretion since no parole bar is required. --------
Affirmed in part, reversed and remanded in part. 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