Opinion
DOCKET NO. A-1985-11T4
04-29-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAMON K. WILSON, a/k/a LEON ROBERTO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, 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NOT FOR PUBLICATION WITHOUT THE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 Messano and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 06-10-2397, 08-08-1881, 11-01-0110.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following the denial of his motion to suppress, defendant Ramon K. Wilson, a/k/a Leon Roberto, pled guilty, pursuant to a negotiated plea agreement, to third-degree possession of a controlled dangerous substance (CDS) (cocaine), with intent to distribute within a school zone, N.J.S.A. 2C:35-7(a), under Indictment No. 08-08-1881; and to third-degree possession of a CDS (cocaine), N.J.S.A. 2C:35-10(a)(1), under Indictment No. 11-01-0110. He also pled guilty to a violation of probation, to which he had been sentenced under previous Indictment No. 06-10-2397. In exchange, the State agreed to recommend concurrent aggregate terms of five years imprisonment with a three-year period of parole ineligibility and to dismiss all remaining charges. The court then sentenced defendant in accordance with the terms of the plea agreement.
On April 13, 2007, the court sentenced defendant to two years probation under Indictment 06-10-2397 after he pled guilty to one count of third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1).
The remaining charges under Indictment No. 08-08-1881 were third-degree possession of a CDS (cocaine), N.J.S.A. 2C:35-10a(1); second-degree possession of a CDS with intent to distribute (cocaine), N.J.S.A. 2C:35-5(a)(1), (b)(2); second-degree possession of a CDS (cocaine) with intent to distribute within 500 feet of a public housing facility, public park or public building, N.J.S.A. 2C:35-7.1; and third-degree burglary, N.J.S.A. 2C:18-2.
Under Indictment No. 11010110, defendant was also charged with third—degree aggravated assault against a law enforcement officer, N.J.S.A. 2C:121(b)(5).
Defendant appeals the Law Division's denial of his motion to suppress the seized drugs, upon which the charges in Indictment No. 08-08-1881 were based. He presents the following arguments on appeal:
POINT I
THE TRIAL JUDGE ERRED IN DENYING WILSON'S MOTION TO SUPPRESS THE DRUGS FOUND IN A THIRD PARTY'S APARTMENT BECAUSE THE OFFICERS WERE NOT LAWFULLY PRESENT IN THE APARTMENT WHEN THEY SAW THE DRUGS.
POINT II
THE TRIAL JUDGE F[A]ILED TO AWARD JAIL CREDITS ON INDICTMENTS 06-10-239[7] AND 11-01-0110, FOR TIME SPENT IN JAIL ON INDICTMENT NUMBER 08-08-1881.
We have considered these contentions in light of the record and the applicable law. We discern no reason to disturb the trial court's denial of the motion to suppress, but we remand the matter to the trial court for a recalculation of defendant's jail credits.
The court conducted a hearing on defendant's motion on June 23, 2011. The State presented the testimony of two of the police officers involved with defendant's arrest, James Armstrong and Darrin Lorady. Defendant presented testimony from Charles Whitehead, the tenant of the apartment where the police arrested defendant.
Armstrong testified that on July 16, 2008, he, Lorady, and three or four other officers went to the building where Whitehead's apartment was located. They were responding to building management's "constant complaints" about narcotics sales and unauthorized people in the hallways. Armstrong estimated that as of its opening, "[t]hat building . . . probably generated between five and ten calls for the police a night seven days a week." When they went to the building, the officers were not "targeting" a specific apartment, but were conducting "general surveillance."
During their walk-though of the building, the officers encountered Whitehead in the second floor hallway. Whitehead was known to Armstrong as a drug user and because "his apartment alone generated numerous calls weekly for people that were in his apartment selling narcotics." Armstrong described the apartment as a "crack rental," because Whitehead had a history of permitting drug dealers to sell "narcotics from his apartment in exchange for [Whitehead] not paying for narcotics" for his own use. At this time, Whitehead told the officers that he had just returned to his apartment and found three "crackheads" inside selling narcotics. Whitehead asked the officers to remove the individuals from his apartment.
The officers then went with Whitehead to his "efficiency" apartment, which Armstrong estimated was no more than "ten by ten" square feet. Whitehead opened the door for the officers. Armstrong observed two or three men and one woman inside, seated on a bed to the right of the door. He characterized the individuals inside the apartment as looking "surprised." Defendant was one of the men present in the apartment.
Upon seeing the police, defendant began running toward the bathroom. Armstrong testified that, when defendant "jumped up," a small bag of what appeared to be crack cocaine fell from his lap and onto the floor. When defendant reached the bathroom, he attempted to close the door. However, Lorady blocked him and removed defendant from the bathroom. Armstrong subsequently recovered a bag of "18 grams of crack cocaine" from behind the commode's tank, in the area adjacent to the porcelain lid. While the police were present, no one besides defendant entered or left the bathroom.
Lorady testified next, and confirmed that the officers' presence in the building that night was due to management's complaints about drug activity. He also corroborated Armstrong's testimony that Whitehead requested police assistance in removing people from his apartment, that he opened his door for the officers, and that he consented to their entering his apartment. Lorady said that Whitehead appeared "adamant" and "angry" about people being in his apartment, and that "[h]e just wanted the people out. . . . [H]e wanted these crackheads out." Upon entering, Lorady first observed defendant sitting down, and then saw him run toward the bathroom door. Lorady moved to stop defendant, and ultimately removed him from the bathroom. Armstrong then discovered the CDS.
Whitehead then testified on behalf of defendant. At the time of the hearing, Whitehead was serving a fifteen year term in state prison after being convicted of first-degree robbery. He confirmed that he had been living in the apartment where defendant was arrested on July 16, 2008. He described the apartment as being very small, "[a] single room [consisting of] one toilet, bathroom [and] one kitchen." He also confirmed that prior to defendant's arrest, other people had been arrested at his apartment "[a] couple of times" for drug possession and distribution.
Whitehead was thirty-nine years old at the time of the hearing
Whitehead further testified that he and defendant "have been associates for quite a long time," that they have "been friends for a while," and that he has "known him for years." While he was aware at the time that defendant was on probation, Whitehead characterized defendant as being "an upright-standing person." He also related that defendant would check in on him "quite often," because he knew that Whitehead suffers from seizures.
Whitehead testified that he was in his apartment with defendant, his next door neighbor Renee, and another man whom he "really didn't know," but identified as "DeNice." He admitted to regularly using cocaine at that time. He also said that Renee was "the main source of drugs at that apartment at that time"; that she had crack cocaine on her person; and again, that she was present in his apartment. However, he would not concede that the CDS was located in his apartment. He also denied allowing anybody to sell drugs in his apartment, although, "If you want to come and you smoking, no problem. I have no problem with using 'cause I use."
Whitehead testified that he left his apartment to smoke a cigarette because, apparently, smoking was not allowed in the building. Before leaving, he asked defendant to "keep an eye on [his] room," as he considered defendant to be "a trustworthy person." For this reason, Whitehead did not lock the door before leaving. While he was out, Whitehead also visited with a friend across the street. He estimates that he was away for "maybe three to five minutes top[s]," when he returned to find police cars outside the building.
When Whitehead reached his apartment, he found the door open, and all three occupants seated on his bed and handcuffed. He identified himself to the officers, and told them that the apartment was his. Whitehead confirmed to an officer that he knew defendant and Renee, but that he did not know DeNice. He also confirmed that he recognized one of the officers, Officer Clayton, as someone with whom he had grown up. In his testimony, Whitehead described Clayton as a black male, approximately six feet tall, and two hundred pounds. However, he admitted on cross-examination that he would not be surprised to learn that Clayton was in fact a five foot nine, blond-haired woman "[c]ause I really didn't pay attention to the name tags of the officers."
Whitehead asked the officers, "what was going on." They informed him that they found narcotics in the bathroom. According to Whitehead, that "really didn't make no sense because I had just, prior to leaving my apartment to go smoke a cigarette, I used the bathroom." Furthermore, he denied giving the officers permission to enter his apartment, or asking them to eject any of the individuals. He testified that he was upset at the police, "because they had no right to be inside [his] room." However, he never filed a complaint with their department or any other authorities, in the belief that the police "just get away with a lot of stuff[, s]o whatever that you see them do, you don't question it." At the most, he voiced his concern with one of the building managers.
After considering the witnesses' testimony and counsels' arguments, the trial court denied defendant's motion. In an oral opinion placed on the record after the hearing, the court noted that the motion's outcome would turn on the witnesses' credibility — meaning, that if the police were to be believed, the motion had to be denied, and if Whitehead's testimony was accepted, the motion had to be granted.
The court then itemized the reasons why it ultimately found Whitehead's testimony not credible, and the officers' testimony credible. Among its reasons for not accepting Whitehead's testimony was his present incarceration for robbery; his friendship with defendant; his drug use, and its "possible effect . . . on his ability to perceive and recall the events accurately from the date in question"; and his demeanor, especially during testimony about Renee's drug possession. In particular, the court noted that,
even though Mr. Whitehead admits that Renee was in his room with cocaine on her person, he is interestingly and somewhat startingly unwilling to endorse the inescapable logic that the prosecutor attempted to press on him: that if Renee is in your room with cocaine on her person, then there is cocaine in your room.
. . . . [W]hen we're talking about credibility assessments, I would suggest that this interesting unwillingness to endorse inescapable logic has its implications from Mr. Whitehead's capacity
to state a fact I the face and to deny that fact at the same time.
The court also cited Whitehead's misidentification of Officer Clayton, and his implausible testimony that in less than five minutes, police came to the building, began a sweep of the building, entered his apartment, and secured the three occupants — all before Whitehead returned. As to the police officers, the court "really d[i]dn't see anything before [it] that genuinely places the credibility of the officers' testimony into question." As a result, it accepted the officers' version of events and denied defendant's motion. On August 12, 2011, the court sentenced defendant and this appeal followed.
We turn first to the standard of appellate review that must be applied to the trial court's findings. "[A]n appellate court reviewing a motion to suppress 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. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)) (internal quotation marks omitted). "A trial court's findings should not be disturbed simply because an appellate court '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.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "Rather an appellate court must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 336-37 (quoting Johnson, supra, 42 N.J. at 161) (alteration in original). "Despite that deference, if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then the appellate court should review 'the record as if it were deciding the matter at inception and make its own findings and conclusions.'" Id. at 337 (quoting Johnson, supra, 42 N.J. at 162). "Of course, a reviewing court owes no deference to the trial court in deciding matters of law. . . . When a question of law is at stake, the appellate court must apply the law as it understands it." Ibid. (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).
Defendant does not argue that an invalid warrantless search and seizure occurred under the "plain view" exception, State v. Bruzzese, 94 N.J. 210, 237-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), if the officers' version of the events is correct. Rather, he argues that the State was not entitled to rely upon the "plain view" exception because the officers were not lawfully present in the apartment, under Whitehead's version of the incident in the apartment, which the judge should have found to be credible.
Under the plain view doctrine, a warrant is not required to perform a search when a police officer (1) is lawfully present in the viewing area, (2) inadvertently discovers the evidence in plain view, and (3) it is "immediately apparent" to the police officer that the "items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-08 (2002). (internal quotation marks and citation omitted).
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We find this argument to be without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). The trial court made detailed credibility findings and determined that the officers' version was more credible than Whitehead's. Despite defendant's arguments that those credibility findings were not supported by the record, we are satisfied that the court's decision was justified by substantial, credible evidence. As noted, supra, Whitehead is a convicted criminal, he is defendant's friend and he is a long time abuser of CDS. In addition, his demeanor when answering questions and his version of the events provided a more than sufficient basis for the court to reject his testimony. As also previously noted, we will not disturb such findings unless there is a clear error of judgment. No such error occurred in this case.
We find error, however, in the jail credits awarded to defendant. According to defendant's judgments of conviction, the court awarded 247 days of jail credit to the defendant on Indictment No. 08-08—1881; one day under Indictment No. 11-01-00110; and nine days on his violation of probation under Indictment No. 06-10-2397. We agree with both parties' contentions, however, that defendant was entitled to jail credit on his two indictments for time spent in jail from the time of his arrest on December 8, 2010 to his sentencing on August 12, 2011, in accordance with State v. Hernandez, 208 N.J. 24 (2011). Therefore we remand this matter for recalculation of defendant's jail credit under and for the entry of an amended judgment of conviction with the correct amount of jail credit.
Affirmed. Remanded for entry of an amended judgment of conviction. 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