Opinion
DOCKET NO. A-4683-12T4
05-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GERALD M. HARRIS, a/k/a GERALD HARRIS HARRISON, Defendant-Appellant.
Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Nasheena D. Porter, Special Deputy Attorney General/Acting 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Carroll and Sumners. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-09-0921. Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Nasheena D. Porter, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Gerald M. Harris appeals the Law Division's order denying his motion to suppress evidence, and the jury verdict finding him guilty of: third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C: 35-5(a)(1) and 2C:35-5(b)(3) (count one); third-degree distribution of a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count two); third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count three); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A 2C:35-5(b)(3) (count four); and third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count five). He also appeals the court's decision not to merge certain counts at sentencing.
Counsel for defendant raises the following issues on appeal:
POINT I
THE ITEMS SEIZED AFTER [DEFENDANT'S] ARREST SHOULD HAVE BEEN SUPPRESSED BECAUSE THE PROSECUTION FAILED TO PROVE PROBABLE CAUSE THROUGH ONE SENTENCE OF CONCLUSORY TESTIMONY THAT A DETECTIVE "BELIEVED HE HAD OBSERVED A NARCOTICS TRANSACTION." U.S. CONST. AMENDS. IV, XIV; N.J. CONST. ART. I, PARA. 7.
POINT II
MERGER IS REQUIRED IN THIS RUN-OF-THE-MILL CASE ALLEGING A SINGLE DRUG SALE BECAUSE
THERE WAS ONE DISTRIBUTION OFFENSE, NOT TWO, AND ONE POSSESSORY OFFENSE, NOT THREE.
In his pro se supplemental brief, defendant argues:
POINT IFor the reasons that follow, we affirm defendant's conviction, but remand for entry of an amended judgment of conviction reflecting the merger required by this opinion.
THE TRIAL COURT FINDINGS DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE WERE NOT [FACTUALLY] SUPPORTED WITH SUFFICIENT CREDIBLE EVIDENCE. (PARTIALLY RAISED BELOW)
POINT II
DEFENDANT'S WARRANTLESS SEARCH AND SEIZURE INCIDENT TO ARREST WERE UNLAWFUL FLOWING FROM A DETENTION LACKING PROBABLE CAUSE. (RAISED BELOW)
POINT III
THE TRIAL COURT ERRED DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL. (RAISED BELOW)
I
We discern the following facts from the record below. On May 22, 2010, Plainfield Police Department Detective Joseph Mulligan was performing surveillance in the area of East 6th Street and South Avenue in Plainfield. At about 10:55 p.m., Mulligan witnessed what he believed to be a drug transaction between a slim white male on foot and a heavy-set black male who was walking a bicycle. According to Mulligan, the white male approached the black male and handed him some cash; in return, the black male removed a plastic bag from the back of his pants, took out a few small items, and handed them to the white male. Mulligan saw no other individuals at the location. Mulligan then radioed to the two officers assigned as a back-up unit, detectives Michael Black and Adam Green, providing a description of the suspects, and instructing them to investigate the drug sale activity he believed he had just observed.
The detectives responded immediately in an unmarked police vehicle. Within a minute of receiving Mulligan's dispatch, they spotted the suspects walking on South Avenue, as they were the only two people on the street. Black pulled the vehicle over alongside the suspects. Green got out of the vehicle and approached the white male, later identified as Martin Hibble. Black also got out the vehicle, and approached the black male, later identified as defendant.
Hibble noticed the arrival of the officers, who were wearing plain clothes with visible police identifiers, and put some items from his hand into his mouth and began chewing. Green observed this, and believing the items to be narcotics, detained Hibble, grabbing his lower jaw to prevent him from chewing or swallowing any evidence. Hibble spit out what was later identified as three "knots" filled with cocaine, and was placed under arrest.
Knots are used to contain narcotics: the corner of a plastic sandwich baggie is filled with drugs (in this case cocaine) and tied into a knot, which is torn off from the rest of the baggie.
Once Green had arrested Hibble, Black placed defendant under arrest. Black asked defendant if he had anything on him, and defendant admitted that he had some narcotics concealed down the back of his pants. Black looked down the back of defendant's pants, and saw a plastic baggie filled with 42 knots of cocaine; these matched the knots Hibble spit out.
Hibble was also charged in count three and separately in count six for fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1). Hibble ultimately pled guilty to possession of cocaine, but is not a party to this appeal.
On October 26, 2012, the trial court heard testimony on defendant's motion to suppress evidence of the CDS. Black was the only witness at the hearing. He testified as to why he and Green went to East 6th Street and South Avenue in search of a "suspected dealer" described as "a large build black male walking a bike" and a "suspected buyer [who] was a slimmer white male":
Q: Do you recall why you went to that area?
A: Detective Mulligan as you said was doing a surveillance. He instructed me to respond
to that area and detain two individuals.
Q: Did he advise you why he wanted these two individuals detained?Black testified that neither he nor Green witnessed the suspected drug transaction, and they stopped defendant and Hibble solely based on Mulligan's directive. Black also testified that only Green witnessed Hibble putting suspected drugs into his mouth. At the close of the motion hearing, defense counsel argued that in the absence of Mulligan's testimony as to the activity of defendant and Hibble, the State had not proven probable cause sufficient to support an arrest. The court reserved decision.
A: Yes. He believed he had observed a narcotics transaction between the two. And he wanted myself and Detective Green to respond to the area and make contact with them and investigate further.
On November 27, 2012, the motion judge issued an oral opinion denying defendant's motion to suppress. Stating that hearsay is admissible in such a suppression hearing, the judge determined that Black's testimony regarding what Mulligan told him and Green was credible. The judge found that, based upon Mulligan's communication regarding his surveillance, Black and Green had probable cause to believe that defendant and Hibble, both matching Mulligan's description, had just engaged in criminal activity and were subject to arrest. Further, the court found that the search of defendant was incident to his arrest, and that anything discovered therefrom was properly seized.
Between January 29 and January 31, 2013, defendant was tried before a jury. Mulligan, Black, Green, and Hibble each testified against defendant. Although Hibble could not identify defendant as the person from whom he purchased the cocaine, Mulligan did so. Black, confirming the testimony he gave at the suppression hearing, and Green both stated defendant was the person they arrested at Mulligan's direction. The jury found defendant guilty on all counts.
On March 15, 2013, the court granted the State's motion for a mandatory extended term, and defendant was sentenced to a seven-year prison term with a three-and-one-half year parole disqualifier for each count to run concurrently. None of the counts were merged. This appeal followed.
II
We first consider defendant's contentions in Point I of his counselled brief, and Points I and II of his pro se brief, that the trial judge erred in denying his motion to suppress. Reiterating the unsuccessful argument raised at the suppression hearing, defendant contends that the police did not have probable cause to confront, arrest, and then search him. Defendant asserts that it was impermissible for the trial judge to rely on Black's hearsay testimony regarding defendant and Hibble's activity. In his pro se submission, defendant argues that there was no probable cause or reasonable suspicion to confront and then search Hibble.
We are guided by well-established principles. "Appellate courts reviewing a grant or denial of a motion to suppress must defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J. 249, 262 (2015) (citations omitted). "We defer to those findings of fact because they '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.'" Ibid. (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We do not, however, defer to the trial court's legal conclusions, which we review de novo. Id. at 263. "And for mixed questions of law and fact, we give deference . . . to the supported factual findings of the trial court, but review de novo the lower court's application of any legal rules to such factual findings." State v. Harris, 181 N.J. 391, 416 (2004) (citing State v. Marshall, 148 N.J. 89, 185 (1997)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
Both the United States and New Jersey Constitutions guarantee an individual's right to be free from "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. A warrantless search is "presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Wilson, 178 N.J. 7, 12 (2003) (citing State v. Cooke, 163 N.J. 657, 664 (2000), overruled by State v. Witt, 223 N.J. 409, 450 (2015)). The State bears the burden of proving that a warrantless search or seizure "falls within one of the few well-delineated exceptions to the warrant requirement." State v. Pineiro, 181 N.J. 13, 19 (2004) (citation omitted). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968) (seizure of a person); State v. Hempele, 120 N.J. 182, 218-19 (1990) (seizure of property).
Not every interaction between a citizen and the police implicates the Fourth Amendment's warrant requirement. The seizure of a person occurs in a police encounter if the facts objectively indicate that "'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). In applying that test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects.'" Id. at 165 (quoting N.J. Const. art. I, ¶ 7).
The Supreme Court has defined a field inquiry as "the least intrusive" form of police encounter, occurring "when a police officer approaches an individual and asks 'if [the person] is willing to answer some questions.'" Pineiro, supra, 181 N.J. at 20 (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting Nishina, supra, 175 N.J. at 510). During such an inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).
In contrast to a field inquiry, an investigatory stop, also known as a Terry stop, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 20, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904-05. The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). There is no mathematical formula for deciding whether the totality of circumstances provides the required articulable or particularized suspicion and, "[a]s the case law suggests, the test is qualitative, not quantitative." Stovall, supra, 170 N.J. at 370.
Applying these principles to the record before us, we are convinced there was a lawful search and seizure. We have no reason to disagree with the judge's finding that the only witness who testified at the suppression hearing, Black, was credible. His testimony was that, based upon Mulligan's surveillance and directive, he and Green drove up to "investigate" defendant and Hibble for engaging in a drug transaction. Contrary to defendant's contention, Black's testimony was not hearsay. N.J.R.E. 801(c) ("'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."); see State v. Bankston, 63 N.J. 263, 268 (1973) (quoting McCormick on Evidence § 248 at 587 (2d ed. 1972)) ("[T]he hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'"). There's another more basic rule why this argument lacks merit. The rules of evidence do not apply to a Rule 104 hearing, which is what a motion to suppress is. The Rule itself provides for that.
Police officers' testimony elicited at hearings on motions to suppress evidence regarding whether officers had probable cause to arrest is "inapposite" to the Court's holding because the statements were not used to prove guilt. Bankston, supra, 63 N.J. at 270. --------
Defendant and Hibble were the only two individuals in the area, and both matched the description provided by Mulligan. As soon as Black and Green approached, Hibble tried to swallow something. Suspecting it was the drugs that Mulligan advised Hibble had just bought, Green forced him to spit out what was in his mouth. As it appeared to be cocaine, there was probable cause to arrest Hibble for CDS possession, and defendant for distribution of CDS. Moreover, once under arrest, defendant admitted prior to a search incident to arrest, that he possessed cocaine. The cocaine was then retrieved from the waistband of defendant's pants.
We are convinced that the interaction with defendant and Hibble was an investigatory stop, and conclude that there were sufficient facts known to Black and Green for them to have had "a reasonable suspicion of criminal activity." Rodriguez, supra, 172 N.J. at 126. They received reliable information from a fellow police officer conducting surveillance that defendant and Hibble had engaged in a drug transaction. See e.g., Davis, supra, 104 N.J. at 506 (information provided to the police by a reliable informant may generate the reasonable suspicion necessary for an investigatory stop). In fact, Black admitted that he and Green were making an investigatory stop. Yet, before they could do any "investigation," an arrest was warranted when Hibble was observed attempting to discard suspected contraband from the precise criminal activity that Mulligan reported.
Next, we address defendant's pro se contention that his motion for a judgment of acquittal should have been granted. He argues that the State failed to prove its case beyond a reasonable doubt because Hibble could not positively identify defendant as the man who sold him drugs. In light of the record and applicable legal principles, we conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.
In considering a motion for judgment of acquittal based upon the insufficiency of the State's evidence under Rule 3:18-1, the judge must decide,
whether[] viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.We apply the same standard and review the judge's decision de novo. See State v. Bunch, 180 N.J. 534, 548-49 (2004).
[State v. Reyes, 50 N.J. 454, 459 (1967) (citation omitted).]
We see no reason to disturb the judge's ruling. Giving the State the benefit of all its favorable testimony, there is ample proof that defendant sold drugs to Hibble. Despite the fact that Hibble could not identify defendant at trial, held over two-and-one-half years after the incident, Hibble testified that he and the man he purchased the cocaine from were arrested by the police shortly after the transaction and that the man's name is Gerald Harris. Moreover, in their testimony, Black and Green both identified defendant in the courtroom as the man they arrested along with Hibble for selling Hibble cocaine, and likewise identified him as Gerald Harris.
III
Finally, turning to defendant's challenge regarding his sentence, we agree, as does the State, that his conviction of count one should merge into his conviction of count two, and that his convictions of count three and count four should merge into his conviction of count five. We therefore remand for the limited purpose of amending the judgment of conviction to reflect these mergers, which do not affect the aggregate term of defendant's sentence. See State v. Soto, 340 N.J. Super. 47, 69 (App. Div.), certif. denied, 170 N.J. 209, (2001).
Affirmed in part, remanded in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION