Opinion
DOCKET NO. A-5148-12T4
07-20-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KENNETH K. GUMBS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 11-09-0793. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
A jury convicted defendant Kenneth K. Gumbs of third-degree possession of controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11); fourth-degree possession of a handgun without a permit, N.J.S.A. 2C:58-3a and N.J.S.A. 2C:39-10a; and second-degree possession of a weapon while committing a CDS offense, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:39-4.1. Defendant was sentenced to an aggregate twenty-one year term of imprisonment with a ten and one-half year period of parole ineligibility. On appeal, defendant's counsel raises the following issues for our consideration.
ISSUE I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS WELL AS HIS MOTION FOR A NEW TRIAL BASED UPON JURY TAINT.
ISSUE II: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE (Not Raised Below).
ISSUE III: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant also raises the following issues in his pro se supplemental brief.
ISSUE I: THE SEARCH OF THE DEFENDANT'S HOME ABSENT ANY SUFFICIENT NEXUS BETWEEN ILLEGAL ACTIVITY AND THE DEFENDANT'S HOME VIOLATED THE DEFENDANT'S RIGHTS UNDER THE U.S. CONST. amend. IV AND THE N.J. CONST. art. I, ¶ 7 TO BE FREE FROM UNREASONABLE SEARCHES EXCEPT UPON PROBABLE CAUSE.
ISSUE II: THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND TO CONFRONT THE WITNESSES AGAINST HIM AS GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS BY DENYING HIS APPLICATION FOR DISCLOSURE OF THE CONFIDENTIAL INFORMER'S IDENTITY OR, IN THE ALTERNATIVE, BY CONDUCTING AN IN CAMERA HEARING TO DETERMINE IF THE AFFIDAVIT'S ALLEGATION OF A CONFIDENTIAL INFORMANT WAS TRUE.
ISSUE III: THE TRIAL COURT'S REFUSAL TO GIVE A CURATIVE INSTRUCTION ON INADMISSIBLE OTHER CRIMES EVIDENCE DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR AND IMPARTIAL TRIAL.
After considering defendant's contentions in light of the applicable law, we affirm the conviction and the sentence except for the minimum term for count seven. We remand to the trial court to resentence defendant to the minimum term permitted by N.J.S.A. 2C:43-6(c).
I.
The record reveals the following facts. According to Paterson Police Detective Mark Hanselman, the police received a tip in March 2011 from a new informant that an individual known as "K" was selling crack cocaine in Paterson. The informant reported that he or she had previously purchased crack cocaine from "K," who lived on the second floor of a house on 11th Avenue and drove a white Dodge Caravan. The informant stated that he or she had never entered "K's" house, but had personally seen "K" on the property and in the house.
To corroborate the tip, Hanselman drove by the location with the informant, who confirmed that it was "K's" house. During the drive-by, Hanselman observed a white van parked in the driveway. He later learned that the vehicle was registered to Kia L. Brown, who resided at that address, and defendant had received a summons for driving on the revoked list while driving the van. Police surveillance of the property revealed defendant driving the van and entering and exiting the house on several occasions. Further, Hanselman personally observed defendant inside the second floor of the residence through a second floor window. Motor Vehicles Commission (MVC) records and utility records confirmed that defendant lived at the house on 11th Avenue. Additionally, the informant identified defendant as "K" based on a MVC photograph.
A criminal history search revealed that defendant had been arrested several times for possession and distribution of a CDS, resulting in three felony convictions. To further corroborate the informant's tip, police arranged two controlled buys of crack cocaine between defendant and the informant.
In support of the application for a search warrant, Hanselman certified that he believed that defendant was distributing drugs from his house based on his training and experience participating in "numerous cases involving [CDS]." A judge issued a search warrant which was executed on April 5, 2011. On that date, the police effectuated a motor vehicle stop of defendant as he was driving the van and arrested him.
Defendant had two active warrants for his arrest.
Hanselman informed defendant that he had a search warrant for his house and advised defendant of his Miranda rights. Defendant admitted that there was crack cocaine and marijuana in the dining room, a firearm located in the bedroom and possibly bullets in the kitchen. During the search, Hanselman personally discovered "crack cocaine, . . . marijuana, two digital scales, a pipe, and a cutting straw along with drug packaging baggies" in the dining room hutch. The marijuana was "packaged in numerous small packaging baggies, small zip lock bags and also in a larger bag with a larger quantity of marijuana."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In September 2011, a grand jury indicted defendant on eight counts including third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (count one); second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count two); two counts of third-degree possession of a CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (counts three and five); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11) (count four); fourth-degree possession of a handgun without a permit, N.J.S.A. 2C:58-3a and N.J.S.A. 2C:39-10a (count six); second-degree possession of a weapon while committing a CDS offense, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:39-4.1 (count seven); and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b (count eight).
Before trial, defendant moved to suppress evidence from the search. The judge denied the motion, finding sufficient evidence to establish probable cause to support the warrant based upon the extensive corroboration and investigation of the tip by the police. Additionally, the court concluded that the State was not required to disclose the identity of the informant.
During jury selection, a sheriff's officer informed the trial judge that defendant was seen "hanging out by the jury assembly room, leaning against the window, staring in at all the jurors." The judge decided to conduct a voir dire of each juror to determine whether they saw defendant and if so, what effect it had. Before voir dire began, defendant shouted, "I wasn't there, I wasn't at the jury room, that's a lie."
In response, the judge expanded the scope of voir dire in order to question the jurors about this incident as well. None of the jurors saw defendant near the jury assembly room and only a handful heard or saw his outburst in the courtroom. Of those that did, most of the jurors did not know what defendant said or what the outburst was in reference to. Only two jurors indicated that they heard defendant say something along the lines of "something was a lie and he wasn't there[.]" The judge determined that these jurors did not need to be dismissed or a mistrial declared, as the jurors explained that defendant's outburst did not "make[] any sense to them[.]" Further, none of the jurors had expressed concerns that they were prejudiced by either incident.
At trial, among other witnesses, the State presented the testimony of its expert chemist, Maria Faziozanakis, who testified that substances found in defendant's home tested positive for marijuana and crack cocaine. In direct testimony, responding to a question concerning what the evidence receipt said, she erroneously identified the drugs as coming from a "controlled purchase of a CDS." No one objected. Following her testimony, the judge conducted an off-the-record colloquy with counsel to point out that she made a mistaken reference to a controlled purchase and offered to give a curative instruction. Defense counsel asked the judge not to issue a curative instruction, believing that it would do more harm than good.
The jury found defendant guilty of counts one, two, four, six, and seven. Following the guilty verdict, defendant moved for a judgment of acquittal, which the judge denied, finding that there was "ample evidence" to support the jury's verdict.
Prior to the close of the State's case, the State moved to dismiss counts three and five.
Prior to sentencing, defendant renewed his argument that a new trial should have been granted because the jury was tainted. The judge denied the motion. The State also filed a motion requesting that defendant be sentenced to an extended term pursuant to N.J.S.A. 2C:43-6(f) as a repeat drug offender, which the judge granted.
After merging count one with count two, the judge sentenced defendant on count two to an extended term of fifteen years with seven and one-half years of parole ineligibility. On count seven, a Graves Act offense, the judge sentenced defendant to six years imprisonment with a three year period of parole ineligibility, to run consecutively to count two. The remaining counts were to run concurrently to count two. Consequently, defendant was sentenced to an aggregate twenty-one year term of imprisonment with a ten and one-half year parole disqualifier. This appeal followed.
N.J.S.A. 2C:43-6(c).
II.
Defendant first argues that the trial court should have granted a new trial because the jury was tainted. Specifically, defendant contends that the jury was unable to fairly and impartially deliberate based on the allegation that defendant was seen near the jury assembly room as well as the fact that several members of the jury saw or heard his outburst. We disagree.
"The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants 'the right to . . . trial by an impartial jury.'" State v. R.D., 169 N.J. 551, 557 (2001) (quoting U.S. Const. amends. VI, XIV; N.J. Const. art. I, ¶ 10). That constitutional privilege requires a jury to decide cases based on the evidence and arguments presented in court, free from any extraneous or outside influences. Ibid. (citing State v. Bey, 112 N.J. 45, 75 (1988)). A new trial must be granted "where jury misconduct or intrusion of irregular influences into the jury deliberation 'could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge.'" State v. McGuire, 419 N.J. Super. 88, 154 (App. Div.) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)), certif. denied, 208 N.J. 335 (2011). The test does not mandate that the jury actually be influenced by the irregularity, but focuses on "whether it had the capacity" to influence the result. State v. Loftin, 191 N.J. 172, 190 (2007) (quoting Panko, supra, 7 N.J. at 61).
Where such improper influence is suspected, the trial court must examine the potentially prejudicial information, determine if it has the capacity to prejudice defendant, and conduct voir dire to determine which jurors were exposed to the information. State v. Scherzer, 301 N.J. Super. 363, 487 (App. Div.), certif. denied, 151 N.J. 466 (1997). However, "[a]s the United States Supreme Court has said, 'it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.'" McGuire, supra, 419 N.J. Super. at 154 (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78, 86 (1982)).
For that reason, the decision whether to grant a new trial based on potential jury bias is addressed to the sound discretion of the trial judge as he or she "is in the best position to determine whether the jury has been tainted." R.D., supra, 169 N.J. at 559. "Ordinarily, a juror's declaration of impartiality will be accorded great weight and a judge's assessment of a juror's credibility in responding to questions will be respected." State v. Carroll, 256 N.J. Super. 575, 599 (App. Div.), certif. denied, 130 N.J. 18 (1992).
Here, all of the jurors denied seeing defendant near the jury assembly room, and several denied hearing or seeing defendant's outburst in the courtroom. The remaining jurors indicated that they either saw defendant make gestures or heard him say something in the courtroom, but were not sure what was said or did not know what the outburst was about. Moreover, none of the jurors expressed concerns about their ability to fairly and impartially decide the case. Based upon these facts, the trial court's determination that the jury was not tainted was sound and reasonable, and consequently, the trial court did not abuse its discretion in finding that a new trial was not warranted. See R.D., supra, 169 N.J. at 559; see also Carroll, supra, 256 N.J. Super. at 599.
III.
Defendant next argues that the prosecutor made prejudicial remarks in her summation by asking rhetorical questions that implicated his right to remain silent. We reject this contention.
The prosecutor, in summation, made the following remarks:
First of all, if you were a user, would you need this much crack cocaine and would you need this much marijuana, .84 ounces of crack cocaine, 1.56 ounces of marijuana? Why would you have to buy all of this at once? Why wouldn't you just buy it as you needed it?
And if you were worried about making sure that you had a steady supply, that you had this amount available when you needed it, why would
you then take the time to go through this elaborate process of packaging it, of weighing it, of taking the time and the energy to make sure that you have the supply available when, if you needed to use, you could just look at it . . . and take what you needed?
. . . .
So does it make[] sense that you might have $2,5000 cash in your home? Does it make sense that you might keep it in different locations?
. . . .
Why would you need unused plastic bags, if these are for your own personal use? Why wouldn't you just reuse the ones that you've already used? Why do you need to have 28 separate bags already prepared? Why couldn't you just reuse the bags as you needed them?
Defense counsel did not object to the prosecutor's remarks at the time, but defendant argues on appeal that the prosecutor's remarks went beyond attacking the defense's theory of the case. We do not agree.
It is well settled that prosecutors are afforded "considerable leeway" in order "to make vigorous and forceful closing arguments." State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, Timmendequas v. New Jersey, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). However, "prosecutors should not make inaccurate legal or factual assertions during a trial and . . . must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Reddish, 181 N.J. 553, 641 (2004) (internal quotation marks and citations omitted). A prosecutor's comments will require reversal only when the conduct was "clearly and unmistakably improper" and "so egregious that it deprived the defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (internal quotation marks and citations omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
In reviewing alleged improprieties, the reviewing court must consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them[.]" Timmendequas, supra, 161 N.J. at 575-76 (internal quotation marks and citations omitted). Additionally, the court must consider "whether the offending remarks were prompted by comments in the summation of defense counsel." State v. Smith, 212 N.J. 365, 404 (2012), cert. denied, Smith v. New Jersey, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
"Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Timmendequas, supra, 161 N.J. at 576. "Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Ibid. Where defense counsel fails to object to a remark, defendant must demonstrate plain error to prevail. Ibid. Plain error is that which is "clearly capable of producing an unjust result[.]" R. 2:10-2. Moreover, even where an objection is not made, if the trial court "clearly instruct[s] the jury that the remarks made . . . were not evidence, but argument," this will be sufficient to cure the improper conduct. Smith, supra, 212 N.J. at 409; see also State v. Setzer, 268 N.J. Super. 553, 566 (App. Div. 1993).
Here, the prosecutor's summation did not prejudice defendant's right to a fair trial. The remarks did not focus on defendant's decision not to testify; rather, they were reasonable inferences based upon the evidence produced at trial and clearly served as a rebuttal to defense counsel's argument that defendant was a heavy drug user. See Bradshaw, supra, 195 N.J. at 510; see also State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991). Significantly, defendant never objected to the prosecutor's remarks, which showed that defense counsel did not believe they were prejudicial. See Timmendequas, supra, 161 N.J. at 576. Additionally, any alleged prejudice was ameliorated by the jury instructions, which emphasized that "[a]rguments, statements, remarks, openings, and summation of Counsel are not evidence and must not be treated as evidence."
IV.
Next, defendant contends that his sentence is manifestly excessive, chiefly because the judge misapplied the aggravating and mitigating factors under N.J.S.A. 2C:44-1. We are not persuaded.
N.J.S.A. 2C:43-6(f) "enhances the penalty for specified subsequent crimes" for a defendant "who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance." State v. Patterson, 435 N.J. Super. 498, 515 (App. Div. 2014). If the prosecutor successfully moves for an extended term and proves that defendant has previously been convicted of the specified offense, the court must impose an extended term. State v. Thomas, 188 N.J. 137, 149-50 (2006). Further, the court is required to impose a minimum term of parole ineligibility of "between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater[.]" N.J.S.A. 2C:43-6(f). Here, defendant acknowledged that the prosecutor established the requirements under N.J.S.A. 2C:43-6(f), and the court was obligated to impose an extended term. Consequently, the sentence on count one of fifteen years and a seven and one-half year parole ineligibility was entirely within the legal range.
Nonetheless, defendant argues that the sentence is excessive because trial court erred in weighing the aggravating and mitigating circumstances. The judge based the sentence on aggravating factors three, six, nine, and eleven, N.J.S.A. 2C:44-1(3), (6), (9), (11), and found no mitigating factors. Defendant asserts that the trial court ignored several mitigating factors while effectively "double-counting" aggravating factors three and six, which he argues were already taken into account when the court imposed an extended term. We cannot agree.
When sentencing, the trial court must "undertake[] an examination and weighing of the aggravating and mitigating factors listed in [N.J.S.A.] 2C:44-1(a) and (b)." State v. Roth, 95 N.J. 334, 359 (1984). "[W]hen the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end[.]" State v. Fuentes, 217 N.J. 57, 73 (2014) (quoting State v. Natale, 184 N.J. 458, 488 (2005)). "Each factor . . . must be supported by 'competent, reasonably credible evidence'" in the record. Id. at 72 (quoting Roth, supra, 95 N.J. at 363).
We accord deference in reviewing sentencing determinations and will affirm unless "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" Id. at 70 (quoting Roth, supra, 95 N.J. at 364-65).
Here, we conclude that the judge in large part properly weighed and considered the relevant aggravating and mitigating factors based on competent and credible evidence in the record. Id. at 72. The record supports the finding of aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant will reoffend, aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior criminal record, and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need to deter. Defendant's claim that the court engaged in "double-counting" is based upon a misunderstanding of State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005). In Vasquez, we found double-counting where the defendant only had one prior conviction which formed the sole basis for both an extended term and an aggravating factor. Id. at 267-68. In contrast, defendant has three CDS convictions. After one conviction was utilized for the extended term, the other two convictions were sufficient to satisfy aggravating factors three and six.
We do, however, agree with defendant that the court erred in finding aggravating factor eleven, which states that
[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices[.]Aggravating factor eleven does not apply "unless the judge [was] balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502-03 (2005). Specifically, where the defendant is facing a "presumptive prison term[,] . . . factor (11) is ordinarily inapplicable unless the court is being asked to overcome the presumption pursuant to N.J.S.A. 2C:44-1f(2)." State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003). Here, aggravating factor eleven was inapplicable because defendant was facing a mandatory prison term under N.J.S.A. 2C:43-6(f).
[N.J.S.A. 2C:44-1(a)(11).]
Notwithstanding the court's error in finding aggravating factor eleven, we find no error clearly capable of producing an unjust result as it would not have changed defendant's sentence. See R. 2:10-2. The court was heavily influenced by aggravating factors three, six, and nine, and there was ample evidence in the record to support defendant's sentence using those factors alone.
Further, we are not persuaded by defendant's argument that the court erred in not finding mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), that he "led a law-abiding life for a substantial period of time before the commission of the present offense[,]" and factor eleven, N.J.S.A. 2C:44-1(b)(11), that "imprisonment . . . would entail excessive hardship to . . . his dependents[.]" We note that the record shows defendant owes a substantial amount in child support arrears and offered no proof that he provided any legal support to his children. Further, concerning defendant's argument that he led a law-abiding life, the record demonstrates that he apparently became involved with illegal drugs as soon as he completed probation.
Despite the above conclusions, we find that a remand is necessary to correct defendant's minimum period of parole ineligibility under the Graves Act on count seven for conviction of second-degree possession of a weapon while committing a CDS offense, N.J.S.A. 2C:39-4.1(a). Here, the trial court imposed a three-year minimum period of parole ineligibility for this conviction, one half of the six-year sentence. However, under the Graves Act, the minimum period for parole ineligibility must "be fixed at one-half of the sentence imposed by the court or 42 months, whichever is greater[.]" N.J.S.A. 2C:43-6(c) (emphasis added). Consequently, the statute mandated that defendant be sentenced to the greater parole disqualifier period, forty-two months and defendant must be resentenced in accordance with the statute.
Neither the State nor defendant identified this issue. However, an appellate court may correct a clearly illegal sentence. See State v. Schubert, 212 N.J. 295, 309 (2012); State v. Moore, 377 N.J. Super. 445, 450-52 (App. Div.), certif. denied, 185 N.J. 267 (2005). --------
V.
In his supplemental brief, defendant also argues that his motion to suppress should have been granted because the search warrant was unsupported by probable cause. Namely, defendant contends that the affidavit supporting the warrant "made no factual assertions linking defendant's home to the alleged crime." We do not agree.
Both the United States and New Jersey Constitutions protect against unreasonable searches and seizures by requiring police officers to first obtain a warrant by a neutral magistrate judge. State v. Cooke, 163 N.J. 657, 664 (2000); U.S. Const. amend. IV; N.J. Const., art. I, ¶ 7. Before a warrant can be issued, the magistrate "judge must be satisfied that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched." State v. Sullivan, 169 N.J. 204, 210 (2001).
Although probable cause "eludes precise definition," Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000), it has been interpreted to mean "less than legal evidence necessary to convict though more than mere naked suspicion." Sullivan, supra, 169 N.J. at 210-11 (internal quotation marks and citations omitted). In Illinois v. Gates, 462 U.S. 213, 230-32, 103 S. Ct. 2317, 2328-29, 76 L. Ed. 2d 527, 543-44 (1983), the United States Supreme Court adopted a totality of the circumstances test for determining whether probable cause exists to support a warrant, which New Jersey has since adopted. State v. Novembrino, 105 N.J. 95, 122 (1987). "Under the totality of the circumstances test, courts must consider all relevant circumstances to determine the validity of a warrant." State v. Keyes, 184 N.J. 541, 554 (2005).
Moreover, "a search executed pursuant to a warrant is presumed to be valid and [] a defendant challenging its validity has the burden to prove 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Jones, 179 N.J. 377, 388 (2004) (quoting State v. Valencia, 93 N.J. 126, 133 (1983)). Consequently, courts "accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant." Ibid. (internal quotation marks and citations omitted). Doubt as to the validity of the warrant "'should . . . be resolved by sustaining the search.'" Id. at 389 (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)).
"Information that police receive from confidential informants may serve as a valid basis for a court to find probable cause and issue a search warrant." Keyes, supra, 184 N.J. at 555. When examining the informant's tip, "the issuing court must consider the 'veracity and basis of knowledge' of the informant as part of its 'totality' analysis." Jones, supra, 179 N.J. at 389 (quoting Novembrino, supra, 105 N.J. at 123). While the court must consider the past reliability of an informant, such past reliability is not itself sufficient as "[t]he current evidence must give the court an opportunity to make an independent evaluation of the informant's present veracity." Keyes, supra, 184 N.J. at 555.
Consideration of the informant's basis of knowledge focuses on "whether the informant obtained his information in a reliable manner." Ibid. Since the information in an informant's tip is hearsay, "independent police 'corroboration is necessary to ratify the informant's veracity and validate the truthfulness of the tip'" and, thus, is "considered an 'essential part of the determination of probable cause.'" Id. at 556 (quoting Jones, supra, 179 N.J. at 390). Relevant corroborating facts may include utility or other public records confirming the informant's description of the place to be searched, a controlled drug buy, positive confirmation that the substances obtained are drugs, the defendant's criminal history, and the experience of the officer who submitted the affidavit. Ibid.
We agree that the warrant was supported by probable cause. While the informant had no history of providing tips to police, under the totality of the circumstances test the other factors were more than sufficient to compensate for the deficiency. Specifically, the police undertook extensive efforts to corroborate the tip, thereby demonstrating that the informant and the information provided in the tip were reliable. Sullivan, supra, 169 N.J. at 214, 216. Police established that the place to be searched was defendant's home based on utility and MVC records as well as police surveillance. Defendant's criminal history, particularly his convictions for distribution of a CDS, was also relevant in establishing probable cause. Moreover, the police made two controlled drug buys with defendant. While the controlled buys occurred away from defendant's house, defendant was observed leaving his house, heading directly to the prearranged meeting location, and then immediately returning to his house. See Keyes, supra, 184 N.J. at 559-60 (rejecting a per se rule requiring police to "directly observe the informant enter the target residence during the controlled buy."). Consequently, we conclude that the court did not err in denying defendant's suppression motion.
VI.
Defendant next argues that the State was required to disclose the informant's identity in order for him to properly prepare his defense and because the informant "was an active participant in the alleged CDS transaction that led to the [d]efendant's arrest[.]" We find this argument to be without sufficient merit for extended discussion. R. 2:11-3(e)(2). Suffice it to say the State "has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation . . . of the law[]." N.J.R.E. 516; N.J.S.A. 2A:84A-28. The privilege does not apply if "disclosure of [the informant's] identity is essential to assure a fair determination of the issues." N.J.R.E. 516(b). In determining whether disclosure is necessary "to assure a fair determination of the issues[,]" courts look at the degree of participation by the informant, State v. Milligan, 71 N.J. 373, 383-84 (1976), whether the informant "is an essential witness on a basic issue in the case," id. at 383, if the "defense of entrapment seems reasonably plausible," id. at 384, or where disclosure is "relevant and helpful to the defense of an accused[.]" Roviaro v. United States, 353 U.S. 53, 60-61, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639, 645 (1957).
Here, defense counsel never explained why disclosure was needed, but for noting that the informant was an active participant in the controlled buy. The mere fact that the informant was active in providing information to police, setting up and completing the buy is not, by itself, sufficient reason to disclose the informant's identity. See State v. Brown, 170 N.J. 138, 144, 148-49 (2001) (concluding that the confidential police informant's identity should not be revealed where the informant carried out two controlled drug buys under police surveillance). The record supports the judge's finding that the informant was not an essential witness to a material issue in the case.
VII.
Finally, defendant argues that the State chemist's reference to a controlled purchase during her testimony impermissibly elicited evidence of prior bad acts in violation of N.J.R.E. 404(b). Although improper, the admission of the statement did not result in plain error requiring reversal.
Evidence of prior bad acts are not admissible to prove that a criminal defendant had a propensity to engage in criminal activity or acted in conformity with prior criminal activity. N.J.R.E. 404(b). The concern in admitting evidence of prior bad acts is that "the jury may convict the defendant because he is a bad person in general." State v. Cofield, 127 N.J. 328, 336 (1992) (internal citations and quotation marks omitted). If evidence is admitted pursuant to N.J.R.E. 404(b), then the court must give a limiting instruction specifically directing the jury on the limited use of the evidence. State v. Nance, 148 N.J. 376, 391 (1997). Where inadmissible evidence is erroneously admitted, courts look to whether the error was "clearly capable of producing an unjust result[.]" R. 2:10-2.
Here, immediately after the chemist's testimony, the trial judge pointed out the error to defense counsel, who had not objected. The judge offered to give a curative instruction. Defense counsel declined, believing that an instruction would draw unnecessary attention and have a greater prejudicial effect on defendant. The judge's decision not to issue a curative instruction does not require reversal as the comment was inadvertent and fleeting, not deemed by defense counsel to be prejudicial, and was not clearly capable of producing an unjust result.
Affirmed except for the minimum term of parole eligibility on count seven. Remanded for resentencing of defendant to a legal period of parole ineligibility. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION