Opinion
DOCKET NO. A-3058-13T2
06-03-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERIC MELVIN, a/k/a ERICK MELVIN, Defendant-Appellant.
Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Lerer, of counsel and on the briefs). Lila B. Leonard, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Steven A. Yomtov, of counsel and on the brief; Lynne M. Glass, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Carroll and Sumners.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 the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-10-1096. Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Lerer, of counsel and on the briefs). Lila B. Leonard, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Steven A. Yomtov, of counsel and on the brief; Lynne M. Glass, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Following the denial of his motion to suppress, defendant Eric Melvin was tried before a jury and found guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession with the intent to distribute a CDS, N.J.S.A 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); second-degree possession with the intent to distribute a CDS in or within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three); fourth-degree possession with the intent to distribute a CDS (marijuana) in a quantity of less than one ounce, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12) (count four); and third-degree possession with the intent to distribute a CDS (marijuana) in a quantity of less than one ounce, in or within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count five).
At sentencing, the trial judge: merged count two with count three and sentenced defendant on count three to a ten-year term of incarceration with a five-year period of parole ineligibility; merged count four with count five and sentenced defendant to a concurrent four-year term of imprisonment on count five; and sentenced defendant on count one to a concurrent three-year term of imprisonment. The judge also imposed the appropriate penalties and assessments and suspended defendant's driving privileges for six months.
On appeal, defendant's assigned counsel raises the following contentions:
POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE THERE WAS NO BASIS FOR THE STOP OF THE DEFENDANT AND THERE WAS NO EXIGENCY PERMITTING THE WARRANTLESS SEARCH OF HIS VEHICLE.
A. The Trial Court Erred In Finding That The Officers Possessed A Reasonable Suspicion That The Defendant Committed A Motor Vehicle Violation.
B. The Trial Court Erred In Finding That The Officers Possessed A Reasonable Suspicion That The Defendant Was Engaged In Criminal Activity.
C. There Was No Exigency Justifying The Warrantless Search Of A Bag Located In Defendant's Vehicle.
POINT II
THE TRIAL COURT'S ERRONEOUS RULING THAT AN UNSANITIZED PRIOR CONVICTION WOULD BE ADMISSIBLE TO IMPEACH THE DEFENDANT INAPPROPRIATELY CURTAILED HIS RIGHT TO TESTIFY AND PRESENT A DEFENSE. [(NOT RAISED BELOW)].[1 ]
POINT III
THE DEFENDANT WAS PREJUDICED BY THE TRIAL COURT'S FAILURE TO CHARGE THE JURY REGARDING THE PROPER ASSESSMENT OF STATEMENTS ALLEGEDLY MADE BY HIM. (NOT RAISED BELOW).
POINT IV
In a pro se supplemental brief, defendant raises the following contention:DEFENDANT'S SENTENCE IS MANFESTLY EXCESSIVE.
POINT ONEWe reject all of these contentions, and affirm.
THE TRIAL COURT'S RULING DENYING THE DEFENDANT'S SUPPRESSION MOTION WAS NOT BASED ON SUFFICIENT, CREDIBLE EVIDENCE IN THE RECORD AND WENT SO WIDE OF THE MARK THAT INTERVENTION IS WARRANTED, THEREFORE THE ORDER DENYING THE MOTION SHOULD BE REVERSED AND THE MATTER SHOULD BE REMANDED FOR A NEW TRIAL.
I.
Officer Guido Quelopana from the City of Elizabeth Police Department testified at the motion hearing that at approximately 11:13 p.m. on June 28, 2011, he and his partner were patrolling in an unmarked patrol car in the area of Trumbull and Court Streets, a high-crime area known for narcotics transactions, gang-related activity, and shootings. While patrolling, the officers saw the vehicle directly in front of them make a sudden stop in the middle of Court Street next to a closed public park. Court Street is a two-way roadway with one lane on each side. The vehicle blocked the lane of traffic when it stopped. Thus, vehicles behind that vehicle could not pass without driving into the lane for oncoming traffic. In addition to seeing the manner in which the vehicle stopped, Officer Quelopana also saw the driver, later identified as defendant, "looking around like if he was looking for somebody or something."
Officer Quelopana testified that after making these observations, and due to the nature of the area and recent shootings there, he and his partner activated the emergency lights on their patrol car to stop defendant's vehicle "to figure out what was going on." Officer Quelopana exited the patrol car and went to the passenger side of defendant's vehicle while his partner exited and went to the driver's side. When defendant lowered the passenger-side window, Officer Quelopana smelled raw marijuana emanating from inside the vehicle. He shined his flashlight inside the vehicle and saw an open black plastic bag in plain view on the passenger-side floor with several small clear Ziploc baggies containing a green leafy substance "sticking out[.]" Based on his training and experience, he knew the substance inside the baggies was marijuana.
Officer Quelopana also testified that his partner asked defendant to exit his vehicle. As his partner was talking to defendant and walking him to the rear of his vehicle, Officer Quelopana retrieved the black plastic bag from inside the vehicle. In addition to the baggies containing marijuana, inside the plastic bag were other baggies containing cocaine, a scale, and a razor. Defendant was handcuffed, placed in the patrol car, and transported to police headquarters, where he consented to the search of his vehicle.
In a written opinion, the judge held the stop was lawful because the officers had a reasonable and articulable suspicion that defendant committed the motor vehicle offense of obstructing the passage of other vehicles, N.J.S.A. 39:4-67. The judge found that defendant abruptly stopped in the middle of the roadway, making other vehicles unable to pass and requiring those vehicles to circumvent his vehicle by travelling into the lane for oncoming traffic.
The judge also held the stop was lawful because the officers had a reasonable and articulable suspicion that defendant was engaged in or about to engage in criminal activity. The judge found that the hour was late; defendant abruptly stopped his vehicle next to a closed public park; defendant appeared to be surveying the area for other persons; and the stop occurred in a high-crime area known for narcotics transactions, shootings, and gang activity.
The judge held that the warrantless search and seizure was lawful as well. Citing State v. Pena-Flores, 198 N.J. 6 (2009), overruled by State v. Witt, 223 N.J. 409 (2015), the judge found the stop was unplanned and unexpected; the police had probable cause to believe defendant's vehicle contained evidence of a crime; and there were exigent circumstances that made it impracticable to obtain a warrant. Citing State v. Nishina, 175 N.J. 502 (2003), State v. Vanderveer, 285 N.J. Super. 475 (App. Div. 1995), and State v. Judge, 275 N.J. Super. 194 (App. Div. 1994), the judge found that the smell of marijuana emanating from defendant's vehicle provided probable cause to conduct a warrantless search of the vehicle.
Witt applies prospectively. Witt, supra, 223 N.J. at 450. Thus, we analyze this issue under the guidelines of Pena-Flores.
In finding exigency, the judge considered the nature of the area and time of the stop. The judge also found that the appearance of defendant looking for someone suggested a danger of additional confederates who may have been interested in moving the narcotics located in his vehicle, and there were only two police officers at the scene with no back-up officers present. The judge concluded that under the totality of the circumstances, exigency was present to justify the officer reaching into defendant's car to remove the black plastic bag the officer suspected contained narcotics.
II.
Defendant contends in Point I of assigned counsel's brief and Point I of his pro se supplemental brief that the judge erred in denying the motion to suppress. Defendant argues the record lacked sufficient, credible evidence to support the judge's findings that the officers possessed a reasonable and articulable suspicion that he committed a motor vehicle offense or was engaged in criminal activity. We disagree.
Our Supreme Court has established the standard of review applicable to a trial judge's ruling on a motion to suppress:
We are bound to uphold a trial court's factual findings in a motion to suppress provided those findings are supported by sufficient credible evidence in the record. Deference to those findings is particularly appropriate when the trial court has the opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy. Nevertheless, we are not required to accept findings that are clearly mistaken based on our independent review of the record. Moreover, we need not defer to a trial . . . court's interpretation of the law because legal issues are reviewed de novo.Applying this standard, we discern no reason to disturb the judge's ruling.
[State v. Watts, 223 N.J. 503, 516 (2015) (alteration omitted) (citations omitted).]
"It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Locurto, 157 N.J. 463, 470 (1999) (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). Reasonable suspicion means "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). "Reasonable suspicion" is "less than proof . . . by a preponderance of the evidence[,]" and "less demanding than that for probable cause," but must be something greater "than an inchoate and unparticularized suspicion or hunch." United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989) (citations omitted).
"The fact that the officer does not have the state of mind hypothesized by the reasons which provide the legal justification for the search and seizure [or investigatory stop] does not invalidate the action taken, so long as the circumstances, viewed objectively, support the police conduct." State v. Kennedy, 247 N.J. Super. 21, 28 (App. Div. 1991) (citing State v. Bruzzese, 94 N.J. 210, 220 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). A Fourth Amendment violation is assessed based upon an objective viewing of the officer's actions considering the circumstances confronting him at that time, not his actual state of mind. Maryland v. Macon, 472 U.S. 463, 470, 105 S. Ct. 2778, 2783, 86 L. Ed. 2d 370, 378 (1985) (citation omitted).
Ultimately, "courts will not inquire into the motivation of a police officer whose stop of an automobile is based upon a traffic violation committed in his presence." Kennedy, supra, 247 N.J. Super. at 28. "The fact that the justification for the stop was pretextual [is] . . . irrelevant," id. at 29, and the State need not prove that the suspected motor vehicle violation has in fact occurred. Locurto, supra, 157 N.J. at 470 (citing State v. Williamson, 138 N.J. 302, 304 (1994)). Accordingly, investigatory stops are valid in situations where the objective basis for the stop was a minor traffic infraction. Id. at 466-67; see also Smith, supra, 306 N.J. Super. at 380 (holding the stop was justified based upon the officer's observations of the defendant weaving in and out of lanes); State v. Murphy, 238 N.J. Super. 546, 548-50 (1990) (holding the stop was justified where the defendant's license plate was in a diagonal position, which the officer believed violated N.J.S.A. 39:3-33); State v. Carter, 235 N.J. Super. 232, 236-37 (App. Div. 1989) (holding the stop was justified based upon the officer's observations that defendant was tailgating another vehicle). However, an officer may not stop a vehicle based on a mistake of law. State v. Puzio, 379 N.J. Super. 378, 384 (App. Div. 2005).
In light of the United States Supreme Court's decision in Heien v. North Carolina, ___ U.S. ___, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014), we have recently "express[ed] doubts as to the continued vitality of Puzio." State v. Sutherland, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 14).
Here, in denying the motion to suppress, the judge found Officer Quelopana's testimony credible and determined the officers had a reasonable suspicion that defendant was committing a motor vehicle offense, N.J.S.A. 39:4-67. We agree.
N.J.S.A. 39:4-67 provides, in pertinent part, that "[n]o vehicle or street car shall be permitted by the owner or driver thereof to so occupy a street as to interfere with or interrupt the passage of other street cars or vehicles[.]" (Emphasis added). Citing Cruz v. Trotta, 363 N.J. Super. 353, 360 (App. Div. 2003), defendant argues the statute required the officers to have an articulable suspicion that he was "obstructing" traffic. We disagree.
Defendant also cites to cases from federal district courts and other state jurisdictions to support this and other arguments raised on appeal. However, those cases are not binding on us. Meadowlands Basketball Assocs. v. Dir., Div. of Taxation, 340 N.J. Super. 76, 83 (App. Div. 2000); Young v. Prudential Ins. Co. of Am., 297 N.J. Super. 605, 622 (App. Div. 1997).
"When a statute is clear, its plain meaning is the law unless its spirit is inconsistent with the literal sense of its terms." Cruz, supra, 363 N.J. Super. at 358 (citation omitted). "When a statute is ambiguous, we interpret it in accordance with the overall legislative intent." Ibid. (citation omitted). "If consistent with the legislative intent, all of a statute's words should be given effect without rendering any of them 'inoperative, superfluous or meaningless.'" Ibid. (quoting State v. Reynolds, 124 N.J. 559, 564 (1991)). When interpreting a statute, "[u]nless otherwise indicated by the Legislature, words are assumed to have their ordinary meaning." Ibid. (citation omitted). When construing a section of the Motor Vehicle Code, "[t]he ordinary and popular meaning is to be given to words in a statute unless it is evident that they are employed in a technical sense." Ibid. (citation omitted).
N.J.S.A. 39:4-67 does not contain the word "obstruct;" it contains the words "interfere" and "interrupt." Because the Motor Vehicle Code does not define "interfere" or "interrupt[,"] we apply their ordinary and popular meaning. The word "interfere" is defined, in part, as "to interpose in a way that hinders or impedes." Merriam Webster's Collegiate Dictionary (10th ed. 1997). Its synonyms include such words as "block," "hinder," "impede," and "obstruct[.]" Merriam Webster's Collegiate Thesaurus (1988). The word "interrupt" is defined, in part as "to stop or hinder by breaking in[,]" and "to break the uniformity or continuity of[.]" Merriam Webster's Collegiate Dictionary, supra. Its synonyms include such words as "halt," and "stall." Merriam Webster's Collegiate Thesaurus, supra.
Although the word "obstructing" appears in the statute's title, it is not dispositive. See In re Attorney Gens. "Directive on Exit Polling: Media and Non-Partisan Public Interest Groups", 402 N.J. Super. 118, 126 (App. Div. 2008) ("[T]he title of a statute may be used as an aid in construing the statute even though it cannot be dispositive of the issue of legislative intent. Nor can it limit the plain meaning of the text.").
Applying the definitions of the words "interfere" and "interrupt," there is no question that defendant violated N.J.S.A. 39:4-67. He stopped his vehicle in the middle of Court Street and completely blocked the lane of travel, thereby interfering with, interrupting, hindering, impeding, obstructing, or blocking the passage of other vehicles.
Even if N.J.S.A. 39:4-67 contained the word "obstruct," the result is the same. Because the Motor Vehicle Code does not define the word "obstruct," we apply its ordinary and popular meaning. The word "obstruct" is defined, in part, as "to block or close by an obstacle[,]" or "to hinder from passage, action, or operation." Merriam Webster's Collegiate Dictionary, supra. Its synonyms include such words as "block," "hinder," and "impede." Merriam Webster's Collegiate Thesaurus, supra. Based on the definitions and synonyms, the word "obstruct" is synonymous with the word "interfere." Ibid. Moreover, we have determined that the word "obstruct" "may be used to describe a total blockage or a situation where movement is only impeded or slowed down." Cruz, supra, 363 N.J. Super. at 359. Accordingly, the stop was justified because the officers had a reasonable and articulable suspicion that defendant committed a motor vehicle offense. They made no mistake of law.
The stop was also justified because the officers had a reasonable and articulable suspicion that defendant was engaged or about to engage in criminal activity. "A police officer may conduct an investigatory stop of a person if that officer has 'particularized suspicion based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing.'" State v. Coles, 218 N.J. 322, 343 (2014) (quoting State v. Davis, 104 N.J. 490, 504 (1986)). "The stop must be reasonable and justified by articulable facts; it may not be based on arbitrary police practices, the officer's subjective good faith, or a mere hunch." Ibid. Law enforcement officers are justified in conducting an investigatory stop when they have a reasonable and articulable suspicion of criminal activity. State v. Pineiro, 181 N.J. 13, 20 (2004). As the Court explained,
[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. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of the circumstances with which he is faced. Such observations are those that, in view of officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonably warrant the limited intrusion upon the individual's freedom.
[Davis, supra, 104 N.J. at 504.]
The reasonable suspicion standard requires "some minimal level of objective justification for making the stop." Nishina, supra, 175 N.J. at 511. "Its application is highly fact sensitive and, therefore, not readily, or even usefully, reduced to a neat set of legal rules." Ibid. (citations omitted). Facts that seem innocent in isolation "can sustain a finding of reasonable suspicion when considered in the aggregate, so long as the officer maintains an objectively reasonable belief that the collective circumstances are consistent with criminal conduct." Ibid. (citation omitted) "An officer's experience and knowledge are factors courts should consider in applying the totality of the circumstances test." Pineiro, supra, 181 N.J. at 22. "Neither inarticulate hunches nor an arresting officer's subjective good faith can justify an infringement of a citizen's constitutionally guaranteed rights." Id. at 21 (citation omitted). An officer must clearly explain exactly what behavior led him to believe a defendant was engaged in criminal conduct. State v. Thomas, 110 N.J. 678 (1988) (requiring that officers be able to point to "specific and articulable facts").
This case is analogous to Nishina. There, an experienced police officer stopped the defendant and his three companions on the grounds of an elementary school at approximately 10:00 p.m. Nishina, supra, 175 N.J. at 506. The officer testified that it was very unusual to see individuals at the school at that time because school was not in session and no one was allowed on school property after dark. Ibid. Also, although the school had a parking lot, defendant's car was parked across the street, some distance from the school. Ibid. The officer requested the defendant's driver's license, registration and insurance car. Id. at 507. While receiving these documents, he smelled a strong odor of marijuana emanating from the defendant's clothes. Id. at 508. Thus, he patted down the defendant, discovering a pen and a pack of rolling papers that he believed were drug paraphernalia. Ibid. The officer then searched the defendant's car and found marijuana. Id. at 508-09. The officer admitted the school was not located in a high crime area, but the police were watching the school because of bomb threats made to other schools. Id. at 508. The defendant was convicted of possession of a CDS. Id. at 509. On appeal, defendant argued there was no constitutional basis for the stop. Id. at 509-10.
Our Supreme Court found the officer reasonably suspected that the defendant had been engaged or was about to engage in criminal activity, stating,
First, the encounter took place at about ten o'clock on a Sunday night when the school clearly was closed. That fact created a duty for [the officer] to investigate the presence of defendant and his three companions, especially in view of the Colts Neck ordinance mandating that "[n]o person may, in any manner, enter upon, remain on or use the school grounds at times other than those designated[.]"
Second, defendant explained to the officer that he and his friends had driven to the school because they had heard of its playground. Given the time of evening, defendant's mature age, and the officer's testimony that the playground consisted of a swing set "for the kids to play on," defendant's explanation was highly questionable, if not inherently unreliable.
. . . The time of day and physical location at which a police-citizen encounter takes place are relevant to the analysis.The Court noted that "[a]lthough when viewed in isolation some of the facts might support an innocent interpretation of events, collectively they formed a minimal level of objective justification for the officer's conduct." Id. at 513 (citation omitted).
[Id. at 512 (citations omitted).]
Here, the stop occurred late at night in a high-crime area known for narcotics transactions, shootings, and gang activity. Defendant abruptly stopped his vehicle in the middle of the street next to a closed public park and appeared to be looking for someone. The manner of the stop and defendant's movements thereafter could have reasonably been interpreted by two experienced police officers as consistent with those made by one engaged or about to engage in a drug transaction sufficient to justify an investigatory stop. Based on the totality of the circumstances, the officers had a reasonable suspicion that criminal activity was afoot. Accordingly, the stop of defendant's vehicle was justified.
III.
Defendant also argues in Point I of assigned counsel's brief and Point I of his pro se supplemental brief that the officers lacked probable cause for the stop and there were no exigent circumstances justifying the warrantless search of his vehicle. Again, we disagree.
The warrantless search was justified under the automobile exception. At the time of the search, the automobile exception permitted a warrantless search of an automobile when: "(1) the stop [was] unexpected; (2) the police ha[d] probable cause to believe that the vehicle contain[ed] contraband or evidence of a crime; and (3) exigent circumstances exist[ed] under which it [was] impracticable to obtain a warrant." Pena-Flores, supra, 198 N.J. at 28.
Defendant does not dispute the stop was unexpected and unforeseen; rather, he argues the officers lacked probable cause and there was no exigency. Contrary to defendant's argument, there was ample probable cause to search his vehicle based on the smell of marijuana emanating therefrom and Officer Quelopana's observation of the baggies of marijuana in the black plastic bag. See Nishina, supra, 175 N.J. at 516; Vanderveer, supra, 285 N.J. Super. at 479; Judge, supra, 275 N.J. Super. 194 at 197. Thus, the question is whether there was exigency.
Exigency must be determined on a case-by-case basis. State v. Dunlap, 185 N.J. 543, 551 (2006). The fundamental inquiry is how the facts of the case relate to the issues of officer safety and the preservation of evidence. Ibid. Basically, "for purposes of a warrantless search, exigent circumstances are present when law enforcement officers do not have sufficient time to obtain any form of warrant." Pena-Flores, supra, 198 N.J. at 29-30 (alterations omitted) (citations omitted). "[A]n officer's belief that exigent circumstances are present must be based on more than mere speculation." State v. Stott, 171 N.J. 343, 358 (2002).
In Pena-Flores, the Court evaluated the exigency requirement as to two different defendants. As to defendant Pena-Flores, at approximately 11:00 p.m., Police Officer Donald Zsak saw an automobile with dark tinted windows in the left-turn-only lane abruptly move to the right lane, cutting off traffic. Pena-Flores, supra, 198 N.J. at 12. Zsak stopped the automobile in a heavily-trafficked area. Id. at 12. As he approached the driver side of the car, he smelled a strong odor of raw marijuana. Ibid. He asked the driver to exit and move to the rear of the vehicle. Ibid. As he was searching the driver, another officer arrived to provide assistance. Ibid. Zsak passed the driver over to that officer. Ibid. Zsak then removed Pena-Flores from the vehicle and searched him. Ibid. Unable to see into the vehicle because of the tinted windows, Zsak entered the passenger side and found two clear plastic bags of marijuana on the front passenger-side door. Ibid. Pena-Flores and the driver were then placed under arrest. Ibid. Zsak further searched the vehicle and found a handgun and more marijuana. Id. at 12-13.
At issue was whether the automobile exception applied. The Court gave the following examples of exigency:
the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.The Court held that the circumstances facing the officers gave rise to exigency, thus satisfying the automobile exception. Ibid.
[Pena-Flores, supra, 198 N.J. at 29.]
In State v. Birkenmeier, 185 N.J. 552 (2006), a narcotics detective met with a confidential informant, who had previously provided him information that led to the seizure of large quantities of drugs and weapons. Id. at 555. The informant provided the detective with the name, address, description of the defendant, and the model and license plate of his automobile. Ibid. The informant explained that the defendant was involved in a large scale narcotic operation to include the distribution of marijuana. Ibid. Due to this information, the detectives decided to investigate and eventually found the defendant's car and stopped him. Id. at 556. The officers approached the defendant's vehicle and removed him from his car. Ibid.
One of the detectives, observed a large laundry-type tote on the passenger side of the vehicle and smelled a very strong odor of marijuana. Ibid. He secured the laundry bag and, upon inspection, found thirty-five pounds of marijuana. Id. at 556-57. The defendant was placed under arrest and convicted on possession and distribution charges. Id. at 557.
As to the search of the vehicle and seizure of the drugs, the Court found that:
[o]nce [the] defendant's car was stopped, [the detective] observed a laundry tote bag on the front passenger's seat of [the] defendant's car and smelled a very strong odor of marijuana. That observation and smell further corroborated the confidential informant's tip and, in the circumstances, triggered application of the automobile exception to the warrant requirement, thereby allowing a lawful search of defendant's car.
[Id. at 562.]
Here, exigency existed under the totality of the circumstances: the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; and the danger of confederates who could remove the drugs in the vehicle. See Pena-Flores, supra, 198 N.J. at 29. Moreover, Officer Quelopana's observation of the black plastic bag and its contents and detection of marijuana sufficed to provide the probable cause and exigent circumstances needed to invoke the automobile exception. Birkenmeier, supra, 185 N.J. at 562.
The warrantless search was also justified under the plain view doctrine. For plain view to apply: (1) the observation of the item must be made from a permissible vantage point; (2) its discovery must be inadvertent; and (3) it must be immediately apparent to the police that the item in question is contraband or evidence of a crime. State v. Johnson, 171 N.J. 192, 206-07 (2002). In State v. Mann, 203 N.J. 328, 341 (2010), the Court found that the plain view exception applied to the drugs seized from the defendant's vehicle. There, an officer observed a narcotics transaction and thus removed himself from his vehicle to investigate. Id. at 334. As he approached the defendant's car, the defendant exited his vehicle and started running. Ibid. After apprehending the defendant, the officer returned to the location of the car and peered into the open, left-rear window and observed several plastic bags containing suspected drugs on the back seat. Ibid. The officer opened the rear passenger door and seized the suspected contraband. Id. at 335. The Court found that plain view justified the seizure of the contraband because the officer was lawfully in the viewing area when he observed the drugs and thus had probable cause to associate the bags of suspected drugs with criminal activity. Id. at 341.
Although the State raised this issue below, the judge did not address it.
Similarly, in this case, the officers lawfully stopped defendant, lawfully surrounded his vehicle, lawfully observed the black plastic bag from a permissible vantage point, discovered the bag inadvertently, and the evidence was immediately apparent to be contraband. Accordingly, the warrantless search was justified under the automobile exception and the plain view doctrine.
IV.
Defendant contends for the first time on appeal in Point II of assigned counsel's brief that the judge erred in permitting use of an unsanitized 1993 attempted murder conviction to impeach him if he testified. Defendant argues that the judge failed to exercise his discretion to sanitize the conviction and failed to properly weigh the probative value against the prejudicial effect.
Defendant relies on an unpublished opinion to support the latter argument. However, unpublished opinions do not constitute precedent or bind us. Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001); R. 1:36-3.
At a Sands hearing, at issue were defendant's three prior convictions: (1) a 1993 attempted murder conviction; (2) a 2006 weapons and narcotics conviction; and (3) a 2007 unlawful possession of a weapon conviction. The judge held that the latter two convictions would be sanitized but not the attempted murder conviction. Relying on State v. Harris, 209 N.J. 431 (2012), the judge assessed the probative value of the attempted murder conviction in light of its remoteness, and found the conviction was not too remote because defendant was only released from prison for that conviction in 2001 and committed his next criminal offense only five years later.
State v. Sands, 76 N.J. 127, 144-45 (1978).
Because defendant did not raise this issue before the trial judge, we review it for plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). We will reverse on the basis of an unchallenged error only if it was "clearly capable of producing an unjust result[.]" Macon, supra, 75 N.J. at 337. We discern no plain error here.
In New Jersey, a witness generally may be impeached with evidence of a prior conviction. See N.J.R.E 609 ("For the purpose of affecting credibility of any witness, the witness's conviction of a crime . . . must be admitted unless excluded by the judge" as remote or for other causes); Sands, supra, 76 N.J. at 147 (holding that prior convictions shall be admissible evidence for impeachment purposes unless danger of undue prejudice substantially outweighs probative value). The underlying rationale to that evidential rule is the belief that a person who has lived contrary to society's rules and laws by committing crimes should not be able to shield his credibility from the jury and present himself as a law-abiding individual. See State v. Sinclair, 57 N.J. 56, 64 (1970). "Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Sands, supra, 76 N.J. at 144.
A defendant plainly experiences prejudice from evidence of prior convictions, but they are normally admissible for impeachment purposes, subject to the court's discretion. See Harris, supra, 209 N.J. at 442. Thus, we review such admissibility determinations under an abuse of discretion standard. Sands, supra, 76 N.J. at 144; see also State v. T.J.M., 220 N.J. 220, 233 (2015).
We see no reason to substitute our judgment for that of the trial judge on this evidential ruling. It was for the judge to assess the probative value of defendant's prior conviction in light of its remoteness, and we cannot say that the judge erred in that judgment. We apply the deferential standard and conclude that the judge did not abuse his discretion in permitting the use of defendant's prior conviction for attempted murder to impeach his credibility.
V.
In Point III of assigned counsel's brief, defendant contends for the first time that the judge erred in failing to sua sponte issue a Hampton/Kociolek charge after admitting evidence of his statement to the officers, "I just have some weed, that's all." We review this contention under the plain error standard of review. R. 2:10-2; State v. Funderburg, ___ N.J. ___, ___ (2016) (slip op. at 18).
State v. Hampton, 61 N.J. 250, 271-72 (1972); State v. Kociolek, 23 N.J. 400, 421 (1957). --------
A trial court should provide a Kociolek charge whenever a witness at trial testifies regarding oral statements made by a defendant. Kociolek, supra, 23 N.J. at 421. In such cases, the trial court should provide the jury with an instruction that it "should receive, weigh and consider such evidence with caution, in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." Ibid. "[T]he Kociolek charge should be given whether requested or not." State v. Jordan, 147 N.J. 409, 428 (1997).
In addition, a trial court should provide a Hampton charge "whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence" regardless of "[w]hether [the charge is] requested or not[.]" Id. at 425. A jury "shall be instructed that they should decide whether . . . the defendant's [statement] is true[,]" and if they conclude that it is "not true, then they must . . . disregard it for purposes of discharging their function as fact finders on the ultimate issue of guilt or innocence." Hampton, supra, 61 N.J. at 272.
The failure to give the charges, however, is not always reversible error. Jordan, supra, 147 N.J. at 425, 428. We will only reverse when omission of the charges was clearly capable of producing an unjust result in the context of the entire case. Id. at 425, 429. If the statements were unnecessary to prove the defendant's guilt "because there is other evidence that clearly establishes guilt, or [] the defendant has acknowledged the truth of his statement," the failure to give a Hampton charge will not require reversal. Id. at 425-26. Likewise, whether the failure to give the Kociolek charge constitutes plain error, "will depend on the facts of each case." Id. at 428.
In State v. Harris, 156 N.J. 122, 183 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001), the Court found that a failure to give a Hampton and Kociolek instruction was not plain error because the cross-examination of the testifying witness was sufficient to test his credibility before the jury. The Court explained that "the principal value of the Kociolek charge is to cast a skeptical eye on the sources of inculpatory statements attributed to a defendant[,]" and opposing counsel's "devastating cross-examination . . . accomplished that end." Ibid.
The Court reached a similar conclusion in State v. Feaster, 156 N.J. 1, 72 (1998), finding that "[t]he very purpose of a Hampton charge is to call the jury's attention to the possible unreliability of the alleged statements made by a criminal defendant." Because the witness was "under a sustained attack during which his credibility was thoroughly challenged" on cross examination, the failure to give a Hampton instruction was not plain error. Ibid.
Here, although defendant did not request a Hampton or Kociolek instruction, the judge gave an instruction regarding witness credibility at the outset and close of the trial. In addition, defense counsel cross-examined Officer Quelopana about defendant's statement, and there was other evidence that clearly established defendant's guilt. Specifically, that Officer Quelopana smelled a strong odor of raw marijuana emanating from inside defendant's vehicle and recovered the black plastic bag containing marijuana, cocaine and drug paraphernalia. Accordingly, there was no error, let alone plain error, in the lack of a Hampton/Kociolek instruction.
VI.
Defendant challenges his sentence in Point IV of assigned counsel's brief. He argues the sentence is excessive and the judge failed to provide a thorough qualitative analysis of the relevant sentencing factors.
Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must determine whether:
(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.
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Applying these standards, we discern no reason to disturb defendant's sentence. Defendant was clearly eligible for an extended-term sentence and as such, was subject to a sentence of between ten and twenty years on count three, second-degree possession with the intent to distribute a CDS in or within 500 feet of a public park. He received a ten-year sentence, which was within the sentencing guidelines.
The imposition of the discretionary five-year parole disqualifier pursuant to N.J.S.A. 2C:43-6(b) was proper. Defendant cites to State v. Grate, 200 N.J. 317 (2015), to argue that N.J.S.A. 2C:43-6(b) is unconstitutional. First, Grate is not relevant to this case, as it did not address the constitutionality of N.J.S.A. 2C:43-6(b). Id. at 335 n.2. Second, neither Grate nor Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 2163, 186 L. Ed. 2d 314, 330 (2013), called into question the constitutionality of statutes granting judges discretion to impose a minimum term of imprisonment based on facts not presented to the jury. In addition, both the United States Supreme Court and our Supreme Court "have upheld the constitutionality of statutes that allow judges to impose a mandatory-minimum parole ineligibility term within the sentencing range authorized by the jury verdict." State v. Abdullah, 184 N.J. 497, 509 (2005) (citations omitted).
We are satisfied that the judge did not violate the sentencing guidelines and the record amply supports his findings on aggravating and mitigating factors. The sentence is reasonable and does not shock our judicial conscience.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION