Opinion
DOCKET NO. A-3470-11T1
05-10-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JORGE M. ALMEIDA, JR., a/k/a JORGE MANUAL ALMEIDA JR., CHRIS DECKER, GEORGE ALMEIDA JR., JORGE ALMEITA and NICO, Defendant-Appellant.
Edward C. Bertucio argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Bertucio, of counsel and on the briefs; Justin Lee Klein, on the briefs). Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Yomtov, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli, Koblitz and Accurso.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-12-1790.
Edward C. Bertucio argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Bertucio, of counsel and on the briefs; Justin Lee Klein, on the briefs).
Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Yomtov, of counsel and on the brief). PER CURIAM
Defendant Jorge M. Almeida, Jr. appeals from the May 26, 2010 Law Division order, which denied his motion to suppress and motion for discovery and an evidentiary hearing. Defendant also appeals his sentence. We affirm.
We derive the following facts from the record. Following surveillance of four controlled purchases of cocaine from defendant, on March 28, 2008, the Brick Township police sought to obtain search warrants for defendant's home located in Brick Township, his business, Elite Auto, located in Lakewood, and his 2003 Mercedes Benz and 1997 BMW. Because the Lakewood municipal court was not in session, the police applied to the Brick Township municipal court judge. The police obtained four search warrants and executed them simultaneously on March 28. The police conducted surveillance of Elite Auto prior to executing the warrant there. They saw defendant drive from the premises in his BMW and subsequently stopped him. The police searched the BMW and recovered $1999. From Elite Auto the police recovered clear plastic bags that contained cocaine weighing approximately sixty-five grams, drug paraphernalia, three ammunition magazines that contained hollow point bullets, one empty magazine, and other gun paraphernalia. From the Mercedes Benz, which was parked at Elite Auto, the police recovered $112. From defendant's home the police recovered plastic bags containing cocaine, drug paraphernalia, a handgun with a magazine and seven rounds of nine millimeter ammunition, $6000, and a box of nine millimeter ammunition (fifty rounds).
A grand jury indicted defendant for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); second-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); second-degree possession with intent to distribute a CDS within 500 feet of public property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1; and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7b.
Defendant filed a motion to suppress the evidence seized from Elite Auto, arguing that the Brick Township municipal court judge lacked jurisdiction to authorize a search warrant for property located in Lakewood. Defendant also filed a motion for an order granting him discovery and a hearing pursuant to State v. Broom-Smith, 406 N.J. Super. 228 (App. Div. 2009), aff'd, 201 N.J. 229 (2010) and Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), to determine the availability of the Lakewood municipal court judge on March 28, 2008.
The trial judge denied the motions. Relying on Broom-Smith the judge held that because the Lakewood municipal court was not in session on March 28, 2008, the Brick Township municipal court judge had jurisdiction to authorize the warrants in accordance with the 2003 cross-assignment order issued by the Assignment Judge of the Ocean County Vicinage pursuant to N.J.S.A. 2B:12-6 and Rule 1:12-3(a). The judge also determined that defendant failed to make a prima facie case for a Franks hearing.
Thereafter, defendant pled guilty to second-degree possession with intent to distribute the cocaine recovered from Elite Auto and to an amended charge of second-degree unlawful possession of the handgun recovered from defendant's home. The trial judge sentenced defendant in accordance with the plea agreement to an eight-year term of imprisonment with four years of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE TRIAL COURT INCORRECTLY DENIED DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE WITHOUT A HEARING.
I.A. THE TRIAL COURT ERRONEOUSLY REFUSED TO HOLD AN EVIDENTIARY HEARING TO ESTABLISH WHETHER THE LAKEWOOD MUNICIPAL COURT JUDGE WAS "UNABLE" TO HEAR THE SEARCH WARRANT APPLICATION FOR MR. ALMEIDA'S LAKEWOOD PROPERTY.
I.B. THE "BRICK MUNICIPAL COURT" SEARCH WARRANT COULD NOT LEGALLY
POINT IIPROVIDE A BASIS TO SEARCH PROPERTY LOCATED IN LAKEWOOD, DESPITE JUDGE SERPENTELLI'S 2003 ORDER.
THE SENTENCING COURT ERRONEOUSLY INTERPRETED THE PLEA AGREEMENT AS LIMITING THE COURT'S DISCRETION TO CONSIDER A LOWER SENTENCE THAN THAT RECOMMENDED BY THE STATE AND THE SENTENCE IMPOSED WAS EXCESSIVE.
II.A. THE SENTENCING COURT ERRONEOUSLY FOUND THAT IT LACKED DISCRETION TO INDEPENDENTLY EVALUATE THE AGGRAVATING AND MITIGATING FACTORS AND TO IMPOSE A SENTENCE BELOW THAT [WAS] RECOMMENDED BY THE STATE.
II.B. THE SENTENCE IMPOSED WAS EXCESSIVE AND THE COURT IMPROPERLY REFUSED TO CONSIDER THE APPLICABLE MITIGATING FACTORS.
Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the trial judge's factual findings, so long as they are supported by sufficient credible evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012); State v. Elders, 192 N.J. 224, 243 (2007). We do not defer to a trial judge's interpretation of the law and review legal issues de novo. State v. Vargas, __ N.J. __, ___ (2013) (slip op. at 34) (citations omitted); State v. Gandhi, 201 N.J. 161, 176 (2010).
Applying the above standards, we discern no reason to disturb the judge's denial of defendant's motion to suppress without a hearing. This case is factually similar to Broom-Smith. There, the Dover municipal court was not in session, so application was made to the Berkeley Township municipal court judge for a search warrant for property located in Dover. Broom-Smith, supra, 201 N.J. at 233. In affirming this court's decision upholding the trial court's denial of the defendant's motion for discovery and to suppress, the Court held that the cross-assignment order was valid, and the warrant issued by the Berkeley Township municipal court judge was valid because the Dover municipal court was not in session. Id. at 235. The Court also held "that, going forward," cross-assignment would be authorized "only, in cases of [the territorially-appropriate judge's] disqualification or inability to hear the case.[,]" and a record must be made of the reason the application was not made to the territorially-appropriate court. Id. at 235-36.
Broom-Smith, decided in 2010, applies prospectively. Thus, because the Lakewood municipal court was not in session on March 20, 2008, the Brick Township municipal court judge was authorized to issue the search warrants in this case. Defendant was not entitled to discovery or a hearing on the availability of the Lakewood municipal court judge.
Defendant also challenges his sentence. He argues that the judge erroneously believed he lacked discretion to independently evaluate the aggravating and mitigating factors to impose a lesser sentence, and the sentence was excessive because the judge failed to consider mitigating factor 11, "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents," N.J.S.A. 2C:44-1b(11). These arguments lack merit.
Defendant was Brimage eligible and subject to a mandatory extended term sentence of between ten to twenty years for the second-degree CDS conviction. In sentencing defendant to the lesser term provided by the plea agreement, the judge analyzed the aggravating and mitigating factors. He found and applied aggravating factor 3, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3), based on defendant's prior criminal record and the nature and extent of defendant's drug dealing in this case. Defendant had two juvenile arrests and two municipal court convictions. He also had nine adults arrests, and three felony convictions, including a conviction for possessing marijuana with intent to distribute. Defendant has served jail time for one of his municipal court convictions, and received several years of probation for his adult convictions.
State v. Brimage, 153 N.J. 1 (1998).
The judge also found and applied aggravating factor 6, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1a(6); and factor 9, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9). The judge considered mitigating factor 11, but did not apply it. He found that although defendant's incarceration would have some consequences for his family, defendant's situation was not much different than similarly-situated incarcerated defendants who have dependents, as there is "always a fallout to other people as a result of the commission of the crimes."
To avoid double counting, the judge placed "little weight" on defendant's criminal record.
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Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). We review a judge's sentencing decision under an abuse-of-discretion standard. State v. Miller, supra, 205 N.J. 109 at 128; State v. Blackmon, 202 N.J. 283, 297 (2010).
We discern no abuse of discretion in defendant's sentence. Contrary to defendant's argument, the judge independently evaluated and balanced the aggravating and mitigating factors and properly exercised his discretion to reject mitigating factor 11 and deny defendant's request for a lesser sentence. Because the judge followed the sentencing guidelines and the sentence was within statutory bounds, we conclude that the sentence was proper.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELATE DIVISION