Opinion
DOCKET NO. A-4187-13T1
03-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAFALITO BELLO, Defendant-Appellant.
Jack Venturi argued the cause for appellant (Jack Venturi Law Firm, attorneys; Mr. Venturi, on the brief). Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-10-1490. Jack Venturi argued the cause for appellant (Jack Venturi Law Firm, attorneys; Mr. Venturi, on the brief). Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief). PER CURIAM
As part of an ongoing narcotics investigation involving a number of targeted individuals, the Middlesex County Prosecutor's Office received authorization on June 18, 2009, to conduct a wiretap of certain telephone facilities. The authorization was renewed on more than one occasion before the wiretap judge, Judge Lawrence M. Lawson. On August 27, 2009, the State applied for an arrest warrant for defendant, Rafalito Bello.
The affiant for the arrest warrant, a sergeant in the Prosecutor's Office, alleged under oath that defendant distributed more than five ounces of cocaine on July 28, 2009, in Metuchen. The statement of probable cause read: "Surveillance reveals that the defendant is involved in the illegal distribution of controlled dangerous substance(s)." Judge Lawson signed the warrant for defendant's arrest.
On September 9, 2009, search warrants were issued for the homes and vehicles of several of defendant's co-defendants by a different judge. On September 16, defendant was stopped by police exiting the New Jersey Turnpike in his Ford Expedition. Since there was no evidentiary hearing, we rely upon the record from various proceedings to describe what apparently occurred.
Defendant was one of seven individuals charged in the indictment.
Police were surveilling defendant's home in Jersey City. They observed him leaving in his car carrying a large duffel bag. After following defendant on the Turnpike, police stopped the vehicle. A police dog was present at the scene. Police thereafter applied for and obtained a search warrant for defendant's vehicle and home. They found more than three kilograms of cocaine and a 9mm. handgun in the car.
Defendant moved to suppress the physical evidence, arguing the arrest warrant failed to adequately state probable cause for his arrest. After hearing oral argument, Judge Bradley Ferencz, who had issued the search warrants, reasoned that the arrest warrant was supported by sufficient probable cause. He noted that Judge Lawson had "relied on the sworn statement of law enforcement that the probable cause is a surveillance of the defendant by law enforcement." The March 8, 2013 order denied defendant's motion to suppress.
Along with several co-defendants, defendant moved to suppress the intercepted phone conversations, arguing in particular that the State failed to minimize the intercepts, thereby recording conversations that were unrelated to the criminal investigation. In a comprehensive written opinion, Judge Ferencz denied that request and entered a conforming order on May 1, 2013.
Defendant subsequently pled guilty before Judge Alberto Rivas to first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Pursuant to the plea bargain, the State agreed to dismiss the remaining charges of the indictment against defendant and recommend an aggregate sentence of fifteen years' imprisonment, with a five-year period of parole ineligibility. Defendant preserved his right to appeal the denial of the above pre-trial motions. See R. 3:9-3(f).
In accordance with State v. Subin, 222 N.J. Super. 227, 238 (App. Div.), certif. denied, 111 N.J. 580 (1988), defendant was advised of the sentencing date and that his failure to appear at sentencing would permit the State to ask for a greater term of imprisonment. Defendant executed a supplemental plea form that provided:
The plea agreement set forth in the attached form is expressly conditioned upon defendant appearing for sentencing on the date scheduled by the Court. If defendant fails to appear, he/she fully understands that the State will ask for a bench warrant for the failure to appear, seek revocation of any bail and, upon apprehension and return for sentencing, the State retains the right to ask the sentencing judge to impose any sentence allowed by statute for the offense(s) to which a guilty plea was entered, notwithstanding the sentencing recommendation in the plea agreement.Defendant failed to appear on the scheduled sentence date and was subsequently arrested in Jersey City. A different judge imposed an enhanced aggregate sentence of eighteen years in prison, with a six-year period of parole ineligibility.
Defendant raises the following points for our consideration:
I. THE TRIAL COURT WRONGLY FAILED TO INVALIDATE THE ARREST WARRANT FOR RAFALITO BELLO DATED AUGUST 27TH 2009; PROBABLE CAUSE WAS NEVER ESTABLISHED AND/OR PRESENTED TO A JUDGEHaving considered these arguments, in light of the record and applicable legal standards, we affirm defendant's conviction and remand the matter for re-sentencing.
II. THE TRIAL COURT WRONGLY DENIED THE MOTION TO SUPPRESS THE WIRETAPS AND ERRED IN FAILING TO SUPPRESS EVIDENCE IN THIS CASE
III. RAFALITO BELLO WAS WRONGLY SENTENCED BEYOND THE SCOPE OF A PRE-NEGOTIATED PLEA ARRANGEMENT, WHICH ULTIMATELY VIOLATED HIS CONSTITUTIONAL RIGHTS AGAINST CRUEL AND UNUSUAL PUNISHMENT
I.
Pursuant to Rule 3:3-1(a)(1),
An arrest warrant may be issued on a complaint only if: [] a judge . . . finds from the complaint or an accompanying affidavit or deposition, that there is probable cause to believe that an offense was committed and that the defendant committed it and notes that finding on the warrant[.]An arrest warrant, as opposed to a summons complaint, may issue if a defendant is charged with certain offenses, including first- or second-degree crimes under Title 35 of the Criminal Code. R. 3:3-1(b)(2); -1(c)(1). Pursuant to Rule 3:3-4(a), "[n]o person arrested under a warrant . . . shall be discharged from custody or dismissed because of any technical insufficiency or irregularity in the warrant . . . , but the warrant . . . may be amended to remedy any such technical defect."
[Ibid. (emphasis added).]
The State has not argued, nor do we conclude, that a warrant lacking probable cause is merely technically deficient. See, e.g., State v. Bobo, 222 N.J. Super. 30, 34 (App. Div. 1987) (concluding that failure to sign the warrant complaint while under oath in the presence of a neutral court officer was not a "mere technical violation of the law").
As the Court recently said, an "officer's belief, even in good faith, that a valid warrant for defendant's arrest was outstanding cannot render an arrest made absent a valid warrant or probable cause constitutionally compliant." State v. Shannon, 222 N.J. 576, 591 (2015) (emphasis added) (citing State v. Brown, 205 N.J. 133, 144 (2011)). A violation of these principles implicates the exclusionary rule, thereby generally requiring suppression of evidence seized as a result of the arrest. Id. at 585.
The State has not argued that independent probable cause existed for defendant's arrest. We therefore do not consider the issue, nor could we, given the sparseness of the record.
"For probable cause to arrest, there must be probable cause to believe that a crime has been committed and 'that the person sought to be arrested committed the offense.'" State v. Chippero, 201 N.J. 14, 28 (2009) (quoting Schneider v. Simonini, 163 N.J. 336, 363 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)). "[W]hether or not probable cause exists 'involves no more than a value judgment upon a factual complex rather than an evident application of a precise rule of law, and indeed a value judgment which inevitably reflects the seasoning and experience of the one who judges.'" Schneider, supra, 163 N.J. at 362 (quoting State v. Funicello, 60 N.J. 60, 72-73, (Weintraub, C.J., concurring), cert. denied, 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972)). The specialized knowledge and experience of police officers must also be taken into account. Ibid. Issuing courts must consider the "totality of the circumstances" in determining whether probable cause exists. Chippero, supra, 201 N.J. at 27.
Defendant does not argue there was insufficient probable cause to support the issuance of the arrest warrant. Rather, he contends, as he did in the Law Division, that the statements contained in the warrant were inadequate. The State, echoing the arguments it made before the motion judge, contends the statement of probable cause was sufficient, particularly since Judge Lawson was familiar with the entire investigation, having signed the original wiretap authorization and approved a subsequent extension. The State also argues that we must defer to the issuing judge's assessment of the circumstances.
Although probable cause to arrest and probable cause to search "involve distinct and not necessarily identical inquiries," Chippero, supra, 201 N.J. at 31, we agree with the State that, absent any disputed facts in the record, Judge Lawson's decision to issue defendant's arrest warrant is entitled to our deference. See, e.g., State v. Evers, 175 N.J. 355, 381 (2003) (noting that a reviewing court owes "substantial deference" to the probable cause determination made by a judge issuing a search warrant, and a defendant bears the burden of demonstrating the warrant was issued "without probable cause or that the search was otherwise unreasonable"). Because the determination as to probable cause is fact-sensitive, there can be no talismanic language which, when incorporated into an arrest warrant, ensures it will survive review.
In Schneider, supra, 163 N.J. at 363-64, although the arrest warrant was sufficiently detailed as to the crimes committed, the Court found that it failed to identify the plaintiff. As a result, the Court held that this deficiency "prevented [the arrest warrant] from passing constitutional muster in that it 'did not provide the issuing judge with sufficient facts on which to base an independent determination as to the existence of probable cause' to believe plaintiff was one of the hijackers." Id. at 365 (quoting State v. Novembrino, 105 N.J. 95, 128 (1987)).
Schneider was a civil action brought under 42 U.S.C.A. § 1983 based upon the plaintiff's alleged false arrest. 163 N.J. at 345.
The warrant in this case had sufficient information to identify defendant, who does not argue otherwise. Moreover, the arrest warrant in this case, though sparsely worded, specifically gave the date and location of the offense, the particular nature of the offense and the fact that "surveillance" corroborated defendant's participation in the offense. We do not think it needed to say more. In short, it provided Judge Lawson with sufficient information to satisfy his neutral determination that a crime had been committed and that defendant had committed the crime. That is all the Rule and our case law requires. We find no basis to reverse the decision denying defendant's motion to suppress.
II.
In State v. Catania, 85 N.J. 418, 427 (1981), the Supreme Court delineated the history and requirements of the New Jersey Wiretapping and Electronic Surveillance Control Act (the Act), 2A:156A-1 to -34. The Act requires officers monitoring the wiretap to make reasonable efforts to minimize or eliminate the interception of conversations and information other than that which they have been authorized to overhear. Id. at 428-29 (citing N.J.S.A. 2A:156A-12(f)). The Court articulated factors "that should guide the courts of this State . . . in their determination of reasonableness." Id. at 432-33.
Police are not expected to terminate the interception of all non-relevant phone calls. "This would demand a prescience on their part that is humanly impossible." Id. at 433. Rather, police are required to make reasonable efforts to minimize or eliminate their interception of such calls. Ibid. Similarly, "[b]ecause of 'the necessarily ad hoc nature of any determination of reasonableness,' the sufficiency of minimization efforts must be judged on a case-by-case basis." Ibid. (quoting United States v. Clerkley, 556 F.2d 709, 716 (4th Cir. 1977), cert. denied, 436 U.S. 930, 98 S. Ct. 2830, 56 L. Ed. 2d 775 (1978)). In assessing the objective reasonableness of the monitor's actions, courts should avoid "blind reliance" on numbers and percentages. Catania, supra, 85 N.J. at 433.
The Court considered three basic factors in assessing the reasonableness of the monitors' minimization efforts. Ibid. The first factor is "the nature of the individual phone calls, which may make them difficult to minimize." Ibid. "Second, the purpose of the wiretap is often a key consideration." Ibid. "Finally, the reasonable expectation of the agents as to what they would overhear based on the information available to them at the time of the wiretap is an important consideration." Id. at 434.
Additionally, "subjective good faith will be required in addition to actual objective reasonableness in all minimization efforts." Id. at 436. If the judge concludes that officers demonstrated subjective bad faith, N.J.S.A. 2A:156A-21 "requires that a minimization violation will result in the suppression of all conversations intercepted during the wiretap." Catania, supra, 85 N.J. at 439 (emphasis added). The Court noted that "full interceptions of lengthy conversations that were highly personal and clearly irrelevant would be evidence of bad faith." Id. at 444. The Court suggested that agents engage in "spot monitoring," where "rather than terminating the interception indefinitely, the agent continues to tune in periodically to see if the conversation has turned to criminal matters. If it has, then he resumes full inception." Id. at 446. "[S]pot monitoring is highly persuasive evidence of good-faith intention on the part of the monitors to minimize." Ibid.
In his written opinion, Judge Ferencz carefully reviewed Catania's specific guidance and the written procedures utilized by the Middlesex County Prosecutor's Office. The judge noted defendant conceded "that a great number of these calls were one time only calls or were short and it was difficult to determine their relevancy." Judge Ferencz carefully reviewed the details of the specific intercepts that defendant claimed demonstrated a violation of the minimization requirement of the Act.
Judge Ferencz could not conclude "in the context of . . . this wide[-]ranging, complicated conspiracy case in which [twenty-four] hour wiretaps were granted, that the monitors demonstrated anything other than good faith and an objectively reasonable attempt to comply with the law." The judge addressed each of defendant's specific arguments and rejected all of them, concluding, "the record shows . . . reasonable good faith efforts were made to consistently minimize and spot check personal and irrelevant calls." The May 1, 2013 order denied defendant's motion to suppress the wiretap evidence.
Defendant argues "[t]he wiretap evidence should have been suppressed by the trial court as the investigators failed to properly minimize their surveillance activities as required by N.J.S.A. 2A:156A-12(f)." The State counters, asserting "the State acted in good faith when performing the wiretap recordings," and "the court acted properly in denying the motion to suppress the wiretaps and evidence." We agree with the State, and affirm the order denying defendant's motion to suppress for the reasons expressed by Judge Ferencz.
III.
Defendant contends that he was sentenced "beyond the scope of a pre-negotiated plea-agreement, which ultimately violated his [constitutional] rights against cruel and unusual punishment." The State counters that "defendant was properly sentenced because of aggravating factors that allowed the court to impose a longer sentence than his pre-negotiated plea agreement and his willful failure to appear at sentencing." For the reasons set forth below, we conclude the sentencing judge failed to explain his factual findings or reasons for imposing a sentence greater than that contemplated by the plea bargain. We therefore remand for re-sentencing.
A defendant who pleads guilty in reliance on a promise or agreement of the State has the right to expect that the bargain will be fulfilled. Subin, supra, 222 N.J. Super. at 238 (citing Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427, 433 (1971)). In Subin, supra, 222 N.J. Super. at 238-39, we held that "a component of a plea agreement that provides for an increased sentence when a defendant fails to appear that is voluntarily and knowingly entered into between a defendant and the State does not offend public policy." The enhanced sentence may not be imposed automatically, simply because a defendant failed to appear. Id. at 239; accord State v. Wilson, 206 N.J. Super. 182, 184 (App. Div. 1985). Instead, the reasons for defendant's failure to appear "'must . . . be relevant to identified sentencing guidelines.'" Subin, supra, 222 N.J. Super. at 239 (quoting Wilson, supra, 206 N.J. Super. at 184). Ordinarily, the court must hold a hearing where it considers the defendant's reasons for non-appearance and thereby determines whether under the totality of the circumstances an enhanced sentence is justified. State v. Shaw, 131 N.J. 1, 16-17 (1993).
Here, defendant failed to appear on the scheduled sentencing date, November 18, 2013. By the time a hearing was held on December 19, 2013, defendant was in custody, having been arrested on a bench warrant when he answered the door of his home in Jersey City. Judge Rivas recounted that on the original sentencing date, defense counsel had advised the court that defendant's daughter had received information from someone in the Dominican Republic indicating that defendant had committed suicide. Defense counsel asked for time to investigate this "miscommunication," and Judge Rivas adjourned sentencing for thirty days.
Defendant retained successor counsel and moved to recuse Judge Rivas. The matter was transferred to the sentencing judge. At sentencing on March 12, 2014, defendant's daughter stated that she had relayed to prior defense counsel the contents of a letter attributed to defendant as it was relayed to her from someone in the Dominican Republic. She asked the judge not to impose an enhanced sentence based upon something that was "her fault."
Although Judge Rivas denied defendant's motion, apparently, out an abundance of caution, he transferred the sentencing to another judge. --------
Defendant apparently filed a certification, which is not part of the record, and explained orally to the sentencing judge that he made an "honest mistake," believing the sentencing date was one week later. Defendant claimed that he had no knowledge of the information that had been relayed to his daughter from the Dominican Republic. Defendant further asserted, without contradiction, that he had "[n]ever missed a court date" during the many years that the case was pending.
Without resolving the circumstances surrounding the report of defendant's suicide, or whether defendant's failure to appear was willful, the judge found that aggravating factors three and nine applied. N.J.S.A. 2C:44-1(a)(3) (risk of re-offense); -1(a)(9) (the need to deter). The judge never explicitly or implicitly referred to defendant's non-appearance as support for those findings. Because defendant was widowed, as the result of a car accident that took his wife's life, and had four children, the judge found mitigating factor eleven applied. N.J.S.A. 2C:44-1(b)(11) (imprisonment will entail an undue hardship upon defendant's dependents). He imposed the sentence referenced above, which exceeded the agreed upon recommended sentence.
Under the circumstances presented, we are constrained to remand the matter for re-sentencing. The sentencing judge failed to follow the basic requirements set forth in Subin and the other cases cited. We express no opinion on the propriety of the sentence actually imposed. We only conclude that the record fails to provide us with the ability to appropriately review the exercise of the judge's broad authority.
Defendant's conviction is affirmed; the matter is remanded for re-sentencing. 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