Opinion
DOCKET NO. A-6157-09T3
02-07-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY TARRON KENNEDY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Jason M. Cieri, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 09-02-0413.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, on the brief).
Edward J. DeFazio, Hudson County Prosecutor,
attorney for respondent (Jason M. Cieri,
Assistant Prosecutor, on the brief).
PER CURIAM
Following denial of his suppression motion, defendant Anthony Kennedy pled guilty to second-degree possession of a controlled dangerous substance (CDS), namely heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2). The plea agreement provided for a mandatory extended term as a repetitive drug offender, N.J.S.A. 2C:43-6f, of fifteen years with a five-year parole disqualifier, with an acknowledgment that defendant would argue for a ten-year term with a five-year parole disqualifier. On March 19, 2010, the State dismissed the remaining charges of the indictment and Judge Kevin G. Callahan sentenced defendant to a twelve-year extended term with a five-year parole disqualifier. He also imposed appropriate fines and penalties. Defendant appealed, challenging both the denial of his motion to suppress the drugs seized from his car, and his sentence as excessive. We affirm.
Sergeant Timothy O'Brien and Officer Mark Hennessey of the Jersey City Police Department, Violent Crimes Unit, testified at defendant's suppression hearing. Sgt. O'Brien explained that about a month prior to defendant's arrest on December 30, 2008, Officer Hennessey relayed information to the squad that he had received from a confidential informant regarding defendant. The informant alleged that defendant was delivering heroin in certain areas of Jersey City from an older maroon Oldsmobile Cutlass with an identified license plate. Thereafter, while on patrol, he and other officers, including Officer Hennessey, observed the Cutlass illegally parked and jutting into the street. The police approached and asked the driver, who identified himself as defendant, to move the car, but he declined, stating that his license was suspended. The officers never performed a database check to determine the status of defendant's license, nor did they search or arrest him. Instead, defendant agreed to have a licensed driver move the car, and the officers left.
A week or two later, Sgt. O'Brien was on patrol when Officer Hennessey informed the squad that he observed the same Cutlass being operated by defendant and he was going to stop it. Sgt. O'Brien proceeded to the area and observed that Officer Hennessey and another officer had already stopped the car and were talking to defendant. Sgt. O'Brien approached the passenger side of defendant's car. He did not recall the windows being tinted but noted, when he approached the car, the windows were down. He saw "a small multi-colored gift bag, maybe eight to ten inches in height, laying on the side" on the "bench-type" front passenger seat of the car. Inside the bag he observed numerous packages of what he thought were bricks of heroin and one loose bundle on top appearing to contain glassine bags of heroin wrapped in a rubber band. The officer explained that the packages were protruding from the gift bag and wrapped in clear, see-through shrink wrap.
According to the officer, it was dark out, but he did not need to use his flashlight because there was sufficient light provided by the street lights. He informed the other officers of his observation and they placed defendant under arrest. In total, forty-one bricks of heroin, totaling 2,060 bags, were recovered from the passenger seat of defendant's car.
Officer Hennessey corroborated Sgt. O'Brien's testimony regarding the two encounters with defendant. He elaborated upon the information provided by the confidential informant, which matched his initial observations of defendant. When asked on cross-examination why he did not verify that defendant's license was suspended during the first encounter, the officer explained, "[i]f somebody is admitting something to me I think that is good enough[,]" and pointed out, "[i]t is not like he was telling me somebody else was unlicensed."
Officer Hennessey detailed the second encounter, explaining that once he saw the Cutlass with defendant driving, he followed it for about ten blocks while informing his squad that he was planning on conducting a motor vehicle stop. The officer testified that he stopped defendant because his license was suspended, not because of the information provided by the informant. His partner was with him in the patrol car.
After stopping defendant's vehicle, the officer approached the driver's side door of the car, reviewed defendant's credentials, and began to issue him a ticket for driving with a suspended license. Officer Hennessey did not see any tint on the windows. He explained that defendant rolled down the driver's side window when he approached but he was not aware of what defendant did with the passenger window. He further related that Sgt. O'Brien and other backup officers arrived almost instantly; as soon as he stopped defendant, they were in the area. He confirmed that Sgt. O'Brien was on the passenger side of the vehicle. Officer Hennessey arrested defendant and charged him with the drug and related motor vehicle offenses once Sgt. O'Brien indicated that he observed the CDS.
Defense counsel then stated his understanding that the windows of defendant's vehicle were, in fact, tinted and requested permission to take pictures of the vehicle to potentially impeach Officer Hennessey's credibility. Judge Callahan granted this request. At the next scheduled hearing two months later, defense counsel advised that the parties planned to admit pictures of the doors as a joint exhibit but defendant was requesting additional time to obtain an expert to determine whether the tint of the car windows would have affected the officer's ability to see through the tint in the dark. The court granted the request, but a month later, on December 2, 2009, defendant rested without retaining the expert or submitting evidence.
On December 10, 2009, Judge Callahan rendered an oral opinion denying defendant's motion to suppress. He set forth the applicable law, expressly credited the officers' testimony, and found the police had a lawful basis for the motor vehicle stop under the totality of the circumstances. He noted that defendant may have been a person of interest because of the confidential informant's tip, but found the potential illegal criminal activity was not the reason for the motor vehicle stop. The judge explained that the officers recognized defendant from their previous encounter three weeks before in the same general area so they knew he had a suspended license. In fact, the police ultimately charged him with the motor vehicle offense along with the drug charges. Judge Callahan concluded that "the State has given sufficient evidence before the [c]ourt that this was a motor-vehicle stop because of the -- what the officers knew, both [Sgt.] O'Brien and Officer Hennessey, as they testified, and I find them credible."
The court additionally found the heroin was in a gift bag on the front seat bench of defendant's car in plain view of Sgt. O'Brien and properly seized under that exception to the warrant requirement. Again crediting the officers' testimony, the judge explained:
Now this issue I must address is about tint. That goes to the credibility of theThe judge memorialized his ruling in an order on the same date.
officers and whether or not they could see or not see inside. They both testified that it was a well-lit area, they could see clearly through it. That's not unusual that cars are tinted. I've taken a look at the tint here. It's not that kind of tint where its, if not illegal, its unlawful to have that dark tint where you can't see inside the vehicle. This is not that case. I've been able to look at the pictures. I grant that the photos that I'm looking at are in daylight and this does not recreate the scene, and I understand all of that; however, when I look at the photos there's no question that this was ordinary tint on most cars, and you can easily see in when a person wants to take a look. [I] [f]ind those officers credible. [I] [d]eny the motion. The State has met its burden.
Defendant subsequently pled guilty and was sentenced as previously stated. Defendant appeals, arguing:
POINT IBased on our review of the record and applicable law, we are not persuaded by any of defendant's arguments.
THE POLICE SEIZURE OF THE DEFENDANT VIOLATED THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION.
A. THE STATE FAILED TO PROVE THAT THE POLICE HAD REASONABLE SUSPICION TO DETAIN THE DEFENDANT.
1. THE DETENTION CANNOT BE JUSTIFIED ON THE BASIS OF STALE INFORMATION ABOUT A MOTOR VEHICLE VIOLATION.B. THE SEIZURE OF THE EVIDENCE CANNOT BE JUSTIFIED BY THE PLAIN VIEW DOCTRINE.
2. THE SEIZURE CANNOT BE JUSTIFIED ON THE BASIS OF A REASONABLE SUSPICION THAT A DRUG CRIME HAS OCCURRED BECAUSE THE RELIABILITY OF THE SOURCE OF THE INFORMATION HAD NOT BEEN ESTABLISHED AND THE INFORMATION WAS STALE.
POINT II
THE SENTENCE IS EXCESSIVE.
A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
In reviewing the denial of a motion to suppress, an appellate court "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." State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We should "defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the 'feel' of the case[.]'" Ibid. (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Only when the trial court is "so clearly mistaken 'that the interests of justice demand intervention and correction,' then the appellate court should review 'the record as if it were deciding the matter at inception and make its own findings and conclusions.'" Mann, supra, 203 N.J. at 337 (quoting Johnson, supra, 42 N.J. at 162).
Generally, "a police officer is justified in stopping a motor vehicle when he [or she] has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Golotta, 178 N.J. 205, 212-13 (2003) (internal quotation marks and citation omitted). Thus, a traffic stop is reasonable "in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed[.]" Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979).
As there is ample basis in the record to support Judge Callahan's ruling on the motor vehicle stop and seizure of the heroin, we discern no basis to intervene. Mann, supra, 203 N.J. at 336. We affirm the denial of defendant's suppression motion substantially for the reasons articulated by Judge Callahan. He expressly credited the testimony of the officers and found the tip from the confidential informant was not the reason for the motor vehicle stop. Rather, the officers had personal knowledge that defendant was driving a vehicle with a suspended license based on his admission during their first encounter a few weeks earlier.
There is no merit to defendant's argument that the information was stale and an objectively reasonable officer would not have stopped his motor vehicle on December 30, without first running a database check to confirm that he was unlicensed. As explained by Officer Hennessey, the police had no need to run a check of defendant's credentials after the initial encounter to verify that defendant was unlicensed based on defendant's own admission of the potentially inculpatory information regarding himself in response to the officers' request to move his car. Nor was this information stale. It was provided about two weeks prior to the contested motor vehicle stop. Thus, objectively, defendant's own, recent statement that he was unlicensed was enough to satisfy the low threshold that is "reasonable suspicion." See State v. Stovall, 170 N.J. 346, 363 (2002) (noting that "reasonable suspicion is a less demanding standard than probably cause") (internal quotation marks and citation omitted).
Again crediting the officers' testimony, the judge correctly found the heroin was properly seized as within Sgt. O'Brien's plain view. A warrantless search is unreasonable and thus prohibited "unless [the search] falls within one of the few well-delineated exceptions to the warrant requirement." State v. Johnson, 171 N.J. 192, 205 (2002) (internal quotation marks and citation omitted) (alteration in original); see State v. Bruzzese, 94 N.J. 210, 239 (1983) ("[T]he proper standard for determining the constitutionality of a warrantless search-and- seizure is whether the police officer's conduct was objectively reasonable and in conformity with recognized exceptions to the warrant requirement."), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
The plain view exception to the warrant requirement applies when: (1) the police officer is lawfully in the viewing area; (2) the officer discovered the evidence inadvertently, meaning the officer did not know in advance where it was located and had no prior intent to seize it; and (3) it is immediately apparent to the officer that the item in plain view was evidence of a crime, contraband, or otherwise subject to seizure. Johnson, supra, 171 N.J. at 206-07. This third prong requires the officer to have probable cause to associate the object in plain view with criminal activity before seizing it. Id. at 213.
As previously discussed, Officer Hennessey had a lawful basis for the motor vehicle stop. He testified it was common practice for police to conduct stops as a squad for the purposes of the officers' safety. Thus, Sgt. O'Brien was lawfully standing by the passenger side door of defendant's car, a reasonable location for police during a motor vehicle stop. Moreover, as found by the judge, Sgt. O'Brien discovered the drugs on defendant's front passenger seat inadvertently. Although the officers had previously been given information that defendant may have been involved in drug trafficking, they did not know beforehand that drugs would be present in the car, nor where they would be located. Furthermore, as expressly found by Judge Callahan based on the credible testimony of the officers, the purpose of the motor vehicle stop was because defendant was driving with a suspended license, not to investigate criminal activity. Thus, the second prong of Johnson is satisfied.
So is the third prong. As it was immediately apparent to Sgt. O'Brien, based on his testimony regarding his experience and the packaging, that the bag contained drugs, it was thereby subject to seizure. Moreover, the drugs were on the passenger seat, and as the judge expressly found, were readily visible to Sgt. O'Brien. Sgt. O'Brien's observations are similar to those recently found by the Supreme Court to satisfy the plain view exception. See Mann, supra, 203 N.J, at 341 (noting an officer acted lawfully by viewing what he believed to be CDS through the open window of a parked car).
We turn now to defendant's sentence. There is no basis for defendant's challenge to the court's imposition of an extended term sentence. Defendant pled guilty to second-degree possession of CDS with intent to distribute. In the plea agreement and plea and sentencing colloquies, defendant acknowledged he was subject to a mandatory extended term as a repetitive drug offender. N.J.S.A. 2C:43-6f. See also State v. Thomas, 188 N.J. 137, 150-51 (2006) (holding that once the sentencing court determines a defendant is subject to a mandatory enhanced sentence no other fact-finding takes place and enhanced sentencing must occur). Thus, defendant's current reliance on State v. Kirk, 145 N.J. 159, 169 (1996), setting forth the factors upon which the State may rely to waive an enhanced sentence, is inapplicable.
The judge found aggravating factors three, that defendant was at risk to commit another crime, six, that defendant had a prior record, and nine, that there was a need to deter defendant and others from committing crimes, N.J.S.A. 2C:44-1a(3), (6), and (9). There were no statutory mitigating factors found, N.J.S.A. 2C:44-1b, although the court did indicate that defendant showed remorse. The court found the aggravating factors clearly and substantially outweighed the mitigating factors. The court sentenced defendant to less than the fifteen-year term sought by the State but more than the ten-year term sought by defendant — twelve years with a mandatory five-year parole disqualifier.
There is no merit to defendant's generic challenge to the aggravating factors found by the court or his claim of an excessive sentence. A trial judge has wide discretion to impose sentences and, provided his or her findings of the aggravating and mitigating factors codified in N.J.S.A. 2C:44-1 are "based upon competent credible evidence in the record," we should not substitute our own view of a proper sentence. State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Moreover, a "court's decision to impose a sentence in accordance with the plea agreement should be given great respect, since a 'presumption of reasonableness . . . attaches to criminal sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61, 71 (App. Div.) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)), certif. denied, 145 N.J. 373 (1996). Here, defendant received a shorter term of incarceration than he accepted in his plea agreement. We modify sentences only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience[,]" Roth, supra, 95 N.J. at 363-64, and remand of a sentence is only appropriate where we find the aggravating and mitigating factors to be unsupported by the record, Bieniek, supra, 200 N.J, at 608. We discern no such sentencing error in this case.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION