Opinion
DOCKET NO. A-3297-11T2
08-25-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALBERTO RUIZ, a/k/a GILBERTO RUIZ, a/k/a ALBERTO RUES, a/k/a ALBERTO CRUZ, a/k/a ERICK RUIZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Leone. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 09-12-1307, 10-12-1248, 11-05-505 and 10-05-0502. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, on the brief). PER CURIAM
Defendant Alberto Ruiz appeals from the judgments of conviction, arguing the trial court erred in denying his motion to suppress and in sentencing. We affirm.
I.
On August 6, 2009, police officers saw defendant make two drug sales from a first-floor apartment leased to his fiancée Ms. Ramos while it was occupied by her minor children M.L., K.L., and J.L. After defendant was arrested and Ramos signed a consent form, the officers searched the apartment and found in the master bedroom a loaded handgun, twenty-five glassine envelopes of heroin, and four zip-lock baggies of cocaine. While on bail, defendant committed other offenses.
Defendant was charged in four indictments, which were ultimately resolved simultaneously pursuant to a global plea agreement. Indictment No. 09-12-1307 charged defendant with eighteen offenses committed August 6, 2009, including numerous drug and firearm offenses as well as child abuse against M.L., K.L., and J.L. Defendant pled guilty to third-degree possession of heroin or cocaine with intent to distribute with 1,000 feet of a high school, N.J.S.A. 20:35-7, and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The court imposed an extended-term sentence on the drug offense, and sentenced him on each offense to concurrent terms of eight years in prison, with four years of parole ineligibility.
The judgment of conviction mistakenly lists this as a plea to second-degree possession of drugs with intent to distribute within 500 feet of a public housing facility. N.J.S.A. 2C:35-27.1. The trial court shall correct the judgment.
Indictment No. 10-05-0502 charged defendant with six offenses committed March 3, 2010, including drug offenses, evidence tampering, resisting arrest, and aggravated assault injuring a police officer. Defendant pled guilty to third-degree possession of cocaine with intent to distribute within 1,000 feet of a school. N.J.S.A. 2C:35-7. The court sentenced him to a concurrent five years in prison with three years of parole eligibility.
Indictment No. 10-12-1248 charged defendant with burglary, resisting arrest, and hindering apprehension, committed October 2, 2010. He pled guilty to third-degree burglary. N.J.S.A. 2C:18-2. The court sentenced him to a concurrent five years in prison.
Indictment No. 11-05-0505 charged defendant with four offenses committed March 23, 2011, including auto theft, eluding, and resisting arrest. He pled guilty to second-degree eluding of a law enforcement officer creating a risk of death or injury. N.J.S.A. 2C:29-2(b). The court sentenced him to a concurrent five years in prison.
On November 7, 2011, defendant pled guilty to the above charges pursuant to the plea agreement, and the court dismissed the remaining charges and several motor vehicle offenses. On January 6, 2012, the court sentenced defendant in accordance with the global plea agreement. He appeals, arguing:
POINT I - THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPRESS EVIDENCE OBTAINED IN THE WARRANTLESS SEARCH OF THE DEFENDANT'S APARTMENT BECAUSE RAMOS'S CONSENT WAS NOT VOLUNTARY, AND AS A RESULT, THE SEARCH WAS CONDUCTED IN VIOLATION OF THE FEDERAL AND NEW JERSEY CONSTITUTIONS.
POINT II - THE SENTENCE IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
II.
Defendant first challenges the trial court's denial of his motion to suppress the evidence seized in the consent search. "A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search of a home." State v. Domicz, 188 N.J. 285, 305 (2006) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973)). Under our State Constitution, the State "'has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent.'" Id. at 307 (quoting State v. Johnson, 68 N.J. 349, 353-54 (1975)). "[T]he State bears the burden of proving by a preponderance of the evidence that the search [of a home] falls within one of the recognized exceptions to the warrant requirement," such as consent. State v. Lamb, 217 N.J. 442, 457 (2014); see United States v. Matlock, 415 U.S. 164, 177-78 & n.14, 94 S. Ct. 988, 996 & n.14, 39 L. Ed. 242, 253 & n.14 (1974) (holding that "the controlling burden of proof at suppression hearings" to show consent to search a home is "no greater burden than proof by a preponderance of the evidence").
Defendant cites Johnson, supra, 68 N.J. at 358 (Pashman, J., dissenting) (quoting State v. King, 44 N.J. 346, 352 (1965)), for the proposition that "'[t]he burden of proof is on the State to establish by clear and positive testimony that the consent was so given.'" We need not decide the viability of that language, as the trial court found consent by clear and convincing evidence.
After hearing testimony on five days, the court found the following facts. On August 6, 2009, Detective Alonzo Bermudez and Sergeant Ivette Otero, experienced narcotics investigators, were conducting a narcotics surveillance. In a half-hour period, they observed two vehicles pull up to a Paterson residence. Each time, the driver went to the front door and gave defendant currency. Each time, defendant went into the residence, returned with small objects, and gave them to the driver. A backup team stopped each vehicle and found drugs.
Officers approached and arrested defendant. Bermudez observed three minor children in the apartment. Moments later, Ramos' eighteen-year-old daughter appeared and told Bermudez she knew where their mother was. Shortly thereafter, Ramos arrived. She said she was defendant's fiancée and shared the residence and master bedroom with him.
Bermudez had a conversation with Ramos for five or six minutes. During this conversation, Ramos was calm and cooperative. Her three children were beside her in the residence. No one was crying or distraught.
Bermudez informed Ramos of the narcotics investigation, advised her that she did not have to allow the search, and that she could stop the search at any time. He presented Ramos with a "Consent To Search" form and advised her of the contents of the form. Otero watched Bermudez read the form to Ramos. Ramos read the form, and did not ask questions. Bermudez and Otero believed Ramos understood what she read. She did not ask any questions. They witnessed Ramos sign the form, on which her name and address were handwritten, and in which she stated:
I, . . . do hereby authorize PATERSON POLICE DEPARTMENT . . . to search my residence . . . located at [ADDRESS] . . . . I am giving this written permission to these officers freely and voluntarily, without any threats or promises having been made, and having been informed of my Constitutional Right not to have a search made of my person or of the premises or vehicle described herein without a search warrant and of my Right to refuse to consent to such a search and/or seizure.
After Ramos signed the form, Bermudez, Otero, and other officers conducted the search. Ramos never asked the officers to stop the search.
At the suppression hearing, Bermudez and Otero testified to these facts, and the trial court found their testimony to be consistent, reasonable, and credible based on their candid and forthright demeanors. The officers' credited testimony was sufficient to show Ramos knowingly and voluntarily consented to the search. See State v. White, 305 N.J. Super. 322, 332-33 (App. Div. 1997).
Defendant's witnesses gave contrary testimony. Ramos's daughter testified that she heard defendant was being arrested, went to the residence, and saw an officer slap defendant. She asked to take the children, but an officer told her to go get her mother or the police would call the Division of Youth and Family Services. She left and found Ramos, but as they were walking back a police officer threw Ramos in a van. When the daughter arrived at the residence, police would not let her inside. She was not present when the consent order was signed.
In June 2012, the Division of Youth and Family Services was renamed the Division of Child Placement and Permanency. L. 2012, c. 16 (eff. June 29, 2012). We will refer to it as the Division.
Ramos testified at the suppression hearing as follows. Her daughter came to get her, saying that the Division would be called for the children. Police threw her into a van and brought her to the residence. When she arrived, police officers were already "ransacking" the apartment. She told the officers they could not search the apartment without a search warrant, and the officers told her that if she did not sign the consent form, the Division would take her children. She was frightened, nervous, and crying. She told the officers she could not read, but they did not read the form to her. The officers told her it was a Division form. She thought it was a Division form allowing her to keep her children, and did not realize it authorized the search. She signed the form, but told the officers to stop the search before and after signing the form. The female officer pushed her to the side and told her to shut up when she was being questioned. Police took her supplemental security income (SSI) money.
The trial court viewed the version of Ramos and her daughter as so divergent from the officers' version that "only one version could be the truth." Based on its observations of the witnesses and its feel of the case, the court concluded that "Ramos's testimony insofar as it directly contradicted the account given by the officers to be unbelievable."
The trial court stated that Ramos was "a savvy and street-smart person" who "feigned ignorance when it suited her purpose." The court found her testimony to be biased, self-serving, and frequently self-contradictory. For example, Ramos gave a signed statement to a Public Defender's Office investigator. However, when confronted with it at trial, she denied ever seeing her own statement and certifying it as true, then claimed to have signed it without understanding it, and then asserted it was incorrect and incomplete.
Ramos's signed statement made no mention of her claims that she told the officers to stop searching, or that the officers threw her into a police van, threatened to call the Division, stole her money, pushed her, or hit defendant.
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Defendant nonetheless attempts to base his appeal on Ramos's testimony. We must hew to our "deferential standard of review." State v. Rockford, 213 N.J. 424, 440 (2013). "[A]n appellate court reviewing a motion to suppress 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." Ibid. (quotation marks omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] 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; quotation marks omitted). "In particular, the appellate court must defer to the credibility determinations of the trial court between competing factual testimony." State v. Jefferson, 413 N.J. Super. 344, 349 (App. Div. 2010). Here, each of defendant's arguments is based on testimony which the trial court did not credit.
Defendant argues that Ramos's consent was not given knowingly and voluntarily because she could not read the consent form. He cites her testimony that she was on SSI because she could not read and was nervous, and that she told the officers she could not read. However, Bermudez testified that defendant read and appeared to understand the consent form, and Otero testified that defendant never said she could not read. The court credited the testimony of the officers over Ramos's contrary testimony.
Defendant next cites Ramos's testimony that she believed the consent form was a Division form. The trial court specifically found that testimony incredible and contradictory, emphasizing that she referred to the form as a "consent to search" in her statement to the Public Defender's Office.
Defendant attempts to show duress or coercion, see Lamb, supra, 217 N.J. at 457, relying on Ramos's testimony that she thought her children would be taken away from her if she did not sign the form. However, the court expressly did not believe Ramos's claim that the officers made such a threat. Rather, the court found that the Division may have been mentioned when the officers were arresting the only adult in a house with three minor children, when such a mention would be appropriate.
Defendant argues Ramos's will was overborne because the apartment was already being ransacked, she had already told the police to stop the search, and the female officer pushed her and told her to shut up. However, her claims were contrary to the testimony of Bermudez and Otero, and were disbelieved. The court also credited Bermudez's testimony that, had Ramos objected to the search, he would have stopped the search, secured the premises, and gotten a search warrant.
Defendant notes Ramos's claim that the officers struck him in front of the children. However, based on the officers' testimony, the court found that, during the entire search, defendant was secured in a patrol car, and Ramos and her children were in the residence.
Finally, defendant argues coercion was shown because "consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered." King, supra, 44 N.J. at 352. However, while the drugs were found on top of the dresser, the loaded gun was in a plastic container and not in open view. Moreover, it was not defendant but Ramos who consented, and she testified that she was unaware that there were illegal drugs or a gun in the apartment.
The trial court found that "the State has proven by clear and convincing evidence that Ms. Ramos knowingly and voluntarily gave consent to the police to search her home." Defendant has not shown that the trial court's factual and credibility determinations were "so clearly mistaken that the interests of justice demand intervention and correction." Lamb, supra, 217 N.J. at 455 (quotation marks omitted).
III.
Defendant contends that the sentence imposed was excessive. "Appellate review of a criminal sentence is limited" and "deferential." State v. Bolvito, 217 N.J. 221, 228 (2014). Appellate courts must decide "whether there is a 'clear showing of abuse of discretion,'" and must 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 "shock[s] the judicial conscience."Further, "[a] sentence imposed pursuant to a plea agreement is presumed to be reasonable[.]" State v. Fuentes, 217 N.J. 57, 70 (2014). Here, the court found aggravating factors three, six, and nine "vastly outweigh[ed]" the non-existent mitigating factors, but imposed the negotiated sentence, which was hardly excessive given defendant's crimes.
[Ibid.]
Defendant asserts the court should not have found the aggravating factors, in particular aggravating factor three: "The risk that the defendant will commit another offense." N.J.S.A. 2C:44-1(a)(3). He argues that factor should have been given "minimum weight" because he claims it was based on his prior record, like aggravating factors six and nine. However, aggravating factor three necessarily looks "beyond the simple finding of a criminal history and include[s] an evaluation and judgment about the individual in light of his or her history." State v. Thomas, 188 N.J. 137, 153 (2006). Indeed, the court found the risk defendant would commit another offense "quite substantial" based not only on his significant prior record but also on his commission of several current offenses while on bail, his drug problem, and his attitude.
Defendant contends that the court erred in not finding mitigating factor eleven: "The imprisonment of the defendant would entail excessive hardship to himself or his dependents[.]" N.J.S.A. 2C:44-1(b)(11). Ramos, now defendant's wife, stated at sentencing that defendant was helping care for their new child who had a chronic illness, and that defendant is now working to support the family. Defendant stated that the child had developed asthma. However, the only documentation before the court showed that the child required no further treatment and was developing normally, and defendant had been working for only five weeks despite being on bail for a year.
Defendant's remaining arguments do not warrant discussion. R. 2:11-3(e)(2).
Affirmed and remanded to the trial court for entry of a corrected judgment of conviction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION