Opinion
DOCKET NO. A-1027-12T3 DOCKET NO. A-1687-12T3
03-19-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL S. WISE, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL ARTHUR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Michael S. Wise (Gilbert G. Miller, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Michael Arthur (Alan I. Smith, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey in A-1027-12 (Angela K. Halverson, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey in A-1687-12 (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-01-0081. Joseph E. Krakora, Public Defender, attorney for appellant Michael S. Wise (Gilbert G. Miller, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Michael Arthur (Alan I. Smith, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey in A-1027-12 (Angela K. Halverson, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey in A-1687-12 (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In these back-to-back appeals, which we now consolidate for purposes of this opinion, defendants Michael S. Wise and Michael Arthur challenge their convictions following a joint jury trial involving drug possession and distribution charges. Arthur also challenges the sentence imposed. We affirm in all respects in both appeals.
I.
A Union County grand jury returned a two-count indictment charging defendants with fourth-degree distribution of marijuana, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (count one); and fourth-degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (count two). On September 12, 2011, Judge Scott Moynihan denied defendants' motion to suppress the marijuana seized from defendants' car on the night of their arrest.
Defendants were jointly tried before a jury. At the close of the State's case, Judge William A. Daniel denied defendants' motion for a judgment of acquittal. At the conclusion of the trial, the jury found both defendants guilty of count two, and not guilty of count one.
Judge Daniel sentenced Wise to an extended four-year term, with an eighteen-month period of parole ineligibility. The judge sentenced Arthur to an extended three-and-one-half-year term, with an eighteen-month period of parole ineligibility. The judge imposed appropriate fines and penalties upon both defendants. These appeals followed.
On appeal, Wise raises the following contentions:
POINT I
THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE DISCOVERED IN THE DORITOS CAN IN HIS VEHICLE.
POINT II
THE PROSECUTOR ENGAGED IN MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. [ ]
Arthur presents the following arguments:
POINT I
THE MOTION COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THERE DID NOT EXIST "EXIGENT CIRCUMSTANCES" TO SUPPORT THE WARRANTLESS SEARCH OF THE VEHICLE AND THE SUBSEQUENT WARRANTLESS SEARCH OF THE DORITOS CAN.
POINT II
THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.
POINT III
DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL "OVERZEALOUSNESS" IN SUMMATION (NOT RAISED BELOW).
POINT IV
THE THREE AND ONE-HALF YEAR BASE CUSTODIAL EXTENDED TERM SENTENCE IMPOSED ON DEFENDANT'S CONVICTION FOR FOURTH DEGREE POSSESSION OF MARIJUANA WITH THE INTENT TO DISTRIBUTE WAS MANIFESTLY EXCESSIVE.
After reviewing the record in light of the contentions advanced by each defendant on appeal, we affirm.
II.
The State developed the following proofs at trial. On October 1, 2009, Detective Collina was patrolling in an unmarked police vehicle in "a high crime [], high narcotics" area where he had previously purchased narcotics while working undercover. At approximately 5:30 p.m., the detective stopped at an intersection and saw a silver car parked at the corner. The driver, who was later identified as C.W., "was actually leaning out the window looking at the oncoming traffic."
We use initials to identify the driver in order to protect her privacy because she is not a party to this appeal.
Detective Collina then saw a green car pull behind C.W.'s vehicle. The passenger in the green car, who was later identified as Arthur, got out and walked up to the passenger side of C.W.'s car. Arthur's "hand was clenched in a fist. He ran up to the passenger side of [C.W.'s car], reached into the window, and within two seconds he pulled his hand out of the window and ran back to the [green] car." The detective testified that Arthur "had a quantity of currency in his hand[,]" which he "put . . . in his pocket and he got right back in the car." The driver of the green car was later identified as Wise.
Both cars then "pulled off, traveling the same exact way[,]" and Detective Collina, believing that he had "observed a narcotics transaction[,]" started following the two vehicles. Because he did not want to "compromise" his "undercover vehicle[,]" Detective Collina called for two patrol units to stop the two vehicles.
Officers Lugo and Fortunka stopped C.W.'s car. Officer Fortunka testified that he approached the passenger side of C.W.'s car and saw a red Ziplock bag of marijuana in plain view on the passenger seat. The officer stated that Officer Lugo seized three additional red Ziplock bags of marijuana that he saw in the car. The officers then arrested C.W. and advised Detective Collina of their actions.
While Officers Lugo and Fortunka were with C.W., Detectives Fusco and Mulligan stopped Arthur and Wise's car. Detective Fusco testified that he approached the passenger side of the car, where Arthur was sitting. As he did so, Arthur "thr[e]w an object with his left hand towards the rear compartment of the motor vehicle." The detective looked in the back of the car and saw "a Dorito[s] can." Detective Fusco stated that both Wise and Arthur "were acting nervous" and kept looking behind them into the back seat. The detective stated that he "smell[ed] a raw odor of marijuana coming from the vehicle."
At that point, Detective Collina called and advised Detective Fusco that he should arrest Arthur. Detective Fusco removed Arthur from the car, arrested him, and searched him incident to that arrest. The detective found $88 in various denominations. The money "was unorganized and in several pants pockets." Once he was handcuffed, the detectives placed Arthur in their patrol car. They then removed Wise from the car, but did not place him under arrest at that point.
Detective Fusco testified that he then went back to the car and saw the Doritos can. He recognized it as "a hide-a-can." The detective explained that the can "actually has a secret compartment that is accessed through the bottom of the can." The bottom of the "hide-a-can" was partially unscrewed and there was a marijuana smell coming from it. Detective Fusco took the can out of the car and unscrewed the bottom the rest of the way. He found sixteen "small red Ziplock bags, and [seven] small black Ziplock bags" of marijuana. The officers then arrested Wise and, in a search of his person incident to that arrest, found $713.
Arthur did not testify, but called C.W. as a witness. She testified that she spoke to Arthur on the telephone earlier in the day on October 1, 2009. C.W. and Arthur made a plan "to meet up" and Arthur told her "where to meet him." Arthur subsequently approached C.W. as she sat in her car at the intersection. Arthur told C.W. that he had "to go do something with" Wise; "dropped a flier" containing information about a party on C.W.'s front passenger seat; and then went back to his car. C.W. started to drive home, but was later stopped by the police. C.W. claimed that only one officer was involved in the stop and that he found the marijuana by going through her purse.
Wise testified on his own behalf. He stated that he and Arthur were "going to a housewarming party" on October 1, 2009. Arthur told Wise he needed "to talk to somebody real quick" and Wise stopped the car so Arthur could speak to C.W. After the two men drove away, the detectives pulled them over. Wise testified that the marijuana in the "hide-a-can" belonged to him and that it was for his "personal use only." He also claimed that the can was always in the back seat and that Arthur did not throw it there as Detective Fusco alleged.
III.
In Point I of their respective briefs, defendants argue that Judge Moynihan erred in denying their motion to suppress the marijuana Detective Fusco found in the "hide-a-can." We disagree.
Our Supreme Court recently reaffirmed our well-settled standard of review of a trial court's decision to grant or deny a defendant's motion to suppress evidence:
Appellate courts reviewing a grant or denial of 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. Deference to these factual findings is required because those findings are substantially influenced by [an] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy. Thus, appellate courts should reverse only when the trial court's determination is so clearly mistaken that the interests of justice demand intervention and correction.
A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference. Therefore, a trial court's legal conclusions are reviewed de novo.
[State v. Gamble, 218 N.J. 412, 424-25 (2014) (internal citations and quotation marks omitted).]
Detective Fusco was the only witness at the pre-trial suppression hearing and his testimony was similar to that he later provided at trial. At the hearing, the detective stated that he and Detective Mulligan stopped defendants' car near a housing project, which he described as "a known high-crime, high-narcotic area. Large amount of vehicle and pedestrian foot traffic. It's also occupied . . . by local street gangs where there have been a rash of shootings, homicides and weapons recovered by the" police department. No other officers or detectives were available to assist Detectives Fusco and Mulligan. Detective Fusco testified he was "concerned about my safety" because of the circumstances confronting him and Mulligan.
At the conclusion of the hearing, Judge Moynihan found Detective Fusco to be "credible. He was not hesitant or evasive on direct or cross. His testimony was consistent and it was not contradicted." The judge then determined that there were exigent circumstances justifying the detective's warrantless search of the "hide-a-can."
Under the New Jersey Constitution, there are three necessary elements to the automobile exception to the warrant requirement: "an unexpected stop, probable cause, and 'exigent circumstances . . . under which it is impracticable to obtain a warrant.'" State v. Minitee, 210 N.J. 307, 319-20 (2014) (alteration in original) (quoting State v. Pena-Flores, 198 N.J. 6, 28 (2009)).
Here the judge properly found that the detectives' stop of defendants' car was "absolutely unexpected. Fusco was not working with [Collina] on the date in question. He was conducting a separate patrol when he received [Collina's] transmission that he observed a drug transaction involving the defendant[s'] vehicle." The record amply supports this finding.
Next, the judge correctly found that Detective Fusco had probable cause to conduct the search. The detective smelled raw marijuana coming from defendants' car; saw Arthur throw the "hide-a-can" into the back seat; and knew that such devices are used to store narcotics. "New Jersey courts have recognized that the smell of marijuana itself constitutes probable cause that a criminal offense ha[s] been committed and that additional contraband might be present." State v. Walker, 213 N.J. 281, 290 (2013) (alteration in original) (citation and internal quotation marks omitted). Thus, probable cause existed to support the search.
Finally, in weighing whether exigent circumstances exist, a judge must consider various factors, including:
the time of day; the location of the stop; the nature of the neighborhood; the unfolding of
the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.Here, in holding exigent circumstances were present, Judge Moynihan found:
[Pena-Flores, supra, 198 N.J. at 29.]
The area near [the housing project] is dangerous. Although it was 5:42 p.m. on that fall evening, the courts were closed and it was obvious darkness was soon to fall. Certainly by the time the officers contacted an assistant prosecutor who then found a Judge, and by the time the recording equipment would have been set up, testimony taken, and warrant issued, it would have been dark.
The driver was not under arrest. There was no apparent justification that would have allowed Fusco and Mulligan to impound the car. Other units were not available to assist Fusco and Mulligan. Indeed, Fusco was the backup for [Collina]. [Collina] had utilized the patrol in the area to assist with the stop of the buyer. This was a rapidly unfolding, unexpected event. To leave one detective with the defendant who was secured, and the driver who was not under arrest, in a neighborhood such as the one near [the high-crime housing project] while the other detective obtained a search warrant would be folly. And that's why I do find exigent circumstances justified the search here and, as such, the motion to suppress is denied.
Once again, the judge's factual findings are firmly grounded in the record and fully support his determination that the exigent circumstances confronting the officers relieved them of the obligation to secure a warrant. See State v. Lewis, 411 N.J. Super. 483, 489-90 (App. Div. 2010) (finding exigent circumstances to search a closed leather case in a van where the vehicle was stopped at night, in a high crime and drug neighborhood, and in view of others). After carefully reviewing the record developed at the suppression hearing, we therefore discern no reason to disturb the judge's decision to deny defendants' suppression motion.
IV.
Defendants next argue that the prosecutor's remarks during summation denied them a fair trial. Again, we disagree.
Wise raises this contention in Point II, and Arthur presents his argument in Point III of their respective briefs.
--------
Prosecutorial misconduct is not a basis for reversal unless the conduct was so egregious that it deprived the defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Considerable leeway is afforded to prosecutors in presenting their arguments at trial "as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). When, as here, defendants fail to object to the prosecutor's comments at trial, the allegedly "improper remarks . . . will not be deemed prejudicial." State v. Timmendequas, 161 N.J. 515, 576 (1999).
No misconduct occurred in this case. The prosecutor's statements concerning the similarity of the packaging of the marijuana found in defendants' and C.W.'s cars were based squarely upon the evidence presented at trial, as were his comments concerning the number of bags of marijuana defendants and C.W. each possessed. Contrary to defendants' contentions, the State was not required to present expert testimony on these topics in order in order for the prosecutor to address the police officers' fact testimony during his summation.
Finally, we reject defendants' contention that the prosecutor improperly vouched for the officers' credibility. His comments were merely a response to defense counsels' argument that the jury should question the officers' testimony because Wise and C.W. contradicted it.
V.
In Point II of his brief, Arthur contends that Judge Daniel should have granted his motion for a judgment of acquittal at the end of the State's case. This argument lacks merit.
A motion for acquittal must be granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1.
On a motion for judgment of acquittal, the governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.We have stated that "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). Our review of a trial court's denial of a motion for acquittal is "limited and deferential[,]" and is governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004).
[State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).]
As set forth in detail in Judge Daniel's findings at the conclusion of the State's case, there was ample evidence in the record from which a jury could find Arthur guilty of both charges. As the judge found, Detective Collina saw Arthur approach C.W.'s vehicle with something clenched in his fist. He reached into the passenger side window and, when he removed his hand, the detective saw that Arthur was holding paper currency. This activity took place in "a high-crime area known for narcotics transactions[.]"
After Detective Fusco stopped defendants' car, he saw Arthur throw a "hide-a-can" in the back seat. The detective smelled raw marijuana coming from the interior of the vehicle and saw both defendants nervously and continuously looking back at the can. The can contained twenty-three bags of marijuana, many of which were "identical in packaging, very similar in packaging to" the four bags of marijuana found in C.W.'s car.
Based upon this evidence, we concur with Judge Daniel's finding that a jury could reasonably conclude that Arthur was guilty of both charges. Accordingly, the judge properly denied his motion for a judgment of acquittal at the close of the State's case.
VI.
Finally, in Point IV of his brief, Arthur argues that his sentence was excessive. We disagree.
Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider "any relevant aggravating and mitigating factors" that "'are called to the court's attention[,]'" and "explain how they arrived at a particular sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. Id. at 65; State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines enunciated in the Code, including the imposition of an extended term under N.J.S.A. 2C:43-6f. Case, supra, 220 N.J. at 65; O'Donnell, supra, 117 N.J. at 215-16. Accordingly, we discern no basis to second-guess the sentence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION