Opinion
DOCKET NO. A-3279-14T3
10-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT C. SINGLETON, a/k/a ROB ROBINSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Acting Attorney General, attorney for respondent (Lila B. Leonard, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 14-05-0518 and Accusation No. 14-09-0413. Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Acting Attorney General, attorney for respondent (Lila B. Leonard, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Robert C. Singleton appeals from his January 15, 2015 sentencing, challenging the denial of his motion to suppress and his sentence. We affirm.
I.
On September 19, 2012, a confidential informant contacted the Carteret police and provided information that, "around three p.m. [defendant] would be traveling to Newark to make a heroin purchase." The informant referred to defendant by his known "street name," "Scooby." According to the informant, defendant would leave his house on Lincoln Avenue and be picked up in a taxi driven by Tori Sanders to travel to Newark to make the heroin purchase.
Patrol Sergeant Theodore J. Nycz had used this particular informant for two years. Over those two years, the informant provided Nycz and the Carteret Police Department with information on fifteen other narcotics investigations. In each of these fifteen separate investigations, the information provided by the informant was reliable and yielded positive outcomes.
Sergeant Nycz and Detective Rosario conducted surveillance in an unmarked police vehicle near defendant's residence on Lincoln Avenue in Carteret. The officers' surveillance corroborated the information provided by the informant. At approximately 2:30 p.m. Nycz observed defendant and a female get into the backseat of a taxicab that pulled up in front of defendant's residence. The vehicle was a Safeway Taxi with the number eight on the side. Nycz recognized the taxi driver as Tori Sanders. After defendant got into the taxi, Nycz and Rosario followed the vehicle until it entered the ramp onto the northbound lanes of the New Jersey Turnpike towards Newark.
Thereafter, Sergeant Nycz and Detective Rosario set up surveillance at the tollbooth, positioning their vehicle so that they would be able to "see the taxi coming back southbound, coming back into Carteret." At this time, Nycz also instructed Patrolman Maldonado, who was in a marked patrol car, to be ready to conduct a motor vehicle stop upon defendant's return. Approximately one hour after the taxi entered the northbound lanes of the Turnpike, Nycz "observed the same taxi, the number eight, on the southbound side coming through the tollbooth entering Carteret" with "Mr. Sanders as the driver and [defendant and the female] in the backseat." Nycz then ordered Maldonado to conduct a motor vehicle stop once the taxi passed his patrol car.
When the taxi passed his vehicle, Patrolman Maldonado activated his lights and siren to effectuate a stop. Before the vehicle came to a complete stop, defendant exited out of the back seat of the taxi, threw a plastic bag into a storm drain, and fled on foot. Defendant climbed two barbed wire fences and ran down a rocky hill into a "weeded area," with Sergeant Nycz pursuing on foot. In the weeded area, Detective Rosario and Maldonado apprehended defendant, who punched and kicked them. Using a special tool to remove the grate, Nycz then retrieved the plastic bag from the storm drain, finding "[f]ive-hundred glassine envelopes with heroin" inside.
On May 2, 2014, defendant was charged in Indictment No. 14-05-0518 with second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count three); third-degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5; third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); third-degree possession of a CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; fourth-degree obstructing administration of law, N.J.S.A. 2C:29-1(b); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); and two counts of fourth-degree hindering his own apprehension, N.J.S.A. 2C:29-3(b)(1).
Defendant filed a motion to suppress the evidence from the September 19, 2012 stop. The motion judge denied the motion, finding there was a valid motor vehicle stop based on reasonable suspicion.
Defendant then negotiated a plea deal, under which he would plead guilty to count three. On September 10, 2014, defendant entered his plea in front of the Honorable Michael A. Toto. Defendant testified that on September 19th, 2012, he was travelling in a taxicab when the police attempted to stop the vehicle. He exited the vehicle and discarded a bag containing heroin.
As part of the negotiated plea, defendant also agreed to plead guilty to an amended count under Accusation No. 14-09-0413 charging harassment, N.J.S.A. 2C:33-4. The trial court later sentenced defendant to a consecutive term of six months in prison for this charge.
Defendant failed to appear on the November 12, 2014 sentencing date. He was not apprehended until January 6, 2015. On January 15, 2015, Judge Toto sentenced defendant to ten years in prison with five years of parole ineligibility. Defendant appeals, arguing:
POINT I — THE STOPPING OF THE TAXI CAB WAS AN INVESTIGATORY STOP, NOT SUPPORTED BY REASONABLE SUSPICION.
POINT II — MR. SINGLETON'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
II.
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. (citations omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (citations omitted). The suppression court's "findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (citation omitted).
Defendant argues the trial court erred in denying his motion to suppress because the officers lacked reasonable suspicion to make the investigatory stop. We disagree.
At a suppression hearing, "the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure falls within one of the few well-delineated exceptions to the warrant requirement." State v. Mann, 203 N.J. 328, 337-38 (2010) (citation omitted). "One such exception is denominated an investigatory stop or a Terry stop." Id. at 338 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Under the United States and New Jersey Constitutions, "[a] police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002).
"It is well established that information provided by an informant can provide the basis for an investigatory stop." State v. Thomas, 110 N.J. 673, 683 (1988). The court must consider the informant's "veracity and basis of knowledge." State v. Keyes, 184 N.J. 541, 555 (2005) (citation omitted). "The veracity factor may be satisfied by demonstrating that the informant has proven reliable in the past, such as providing dependable information in previous police investigations." Ibid. Corroboration of the tip by police also helps bolster the confidential informant's credibility. Id. at 555-56. The "basis of knowledge" underlying an informant's tip can be established by "direct evidence of the manner in which the informant learned of the criminal activity, by details that establish that the informant's knowledge has been derived from a trustworthy source, or by a prediction of hard-to-know future events." State v. Williams, 364 N.J. Super. 23, 34-35 (App. Div. 2003); see also State v. Smith, 155 N.J. 83, 94-95, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998).
"[D]eficiency in one of those factors may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." State v. Zutic, 155 N.J. 103, 110-11 (1998) (citation omitted). In making a determination of reliability, courts must give "sufficient weight to the officer's knowledge and experience and to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Arthur, 149 N.J. 1, 10—11 (1997).
Here, the State's evidence showed the informant's veracity. Sergeant Nycz testified the informant had provided reliable information in fifteen separate narcotics investigations in the past two years, always with a positive outcome. Though vague, that description was reasonably interpreted by the trial court to mean arrests. Further, the informant's credibility was bolstered when Sergeant Nycz and Detective Rosario corroborated the informant's information when defendant exited his residence and entered a taxicab at the time predicted by the informant. The information was further corroborated when the officers saw the taxicab enter the New Jersey Turnpike heading northbound toward Newark, and later return through the southbound tollbooth with defendant still in the vehicle.
Moreover, the informant's basis of knowledge was demonstrated by the precise predictions the informant made in this instance. "The basis of knowledge for the tip can also be established by predicting hard-to-know future events . . . imply[ing] that the informant derived that information directly as a witness or as one privy to a reliable witness or source." Smith, supra, 155 N.J. at 95 (emphasis in original). "Therefore, the mere allegation that such future events will occur is sufficient to infer that the informant is at least claiming to be relying on a reliable source." Ibid.
Here, the informant provided police with: the date and approximate time of defendant's travel, its starting location, the vehicle defendant would be traveling in, the person who would be driving it, defendant's direction of travel, and his return. Based on these predictions of future events, it can be inferred that "the information had a sufficient basis of knowledge of the underlying criminal conduct." Ibid. Therefore, the officers had reasonable suspicion to conduct an investigatory stop of defendant. See State v. Birkenmeier, 185 N.J. 552, 561 (2006) (finding reasonable suspicion based on an informant's tip identifying the defendant, his car, his time and direction of travel, and that he would be carrying a laundry bag).
Defendant relies on Zutic, but that case actually supports the trial court's finding of reasonable suspicion. In Zutic, the police stopped and searched a car after the informant said that specific car would travel on a specified road from New York City carrying drugs. Zutic, supra, 155 N.J. at 106-07. Unlike here, the informant did not know who would be in the car, "the informant was wrong about a significant piece of information," the police were able to corroborate only half of the alleged two-way trip, and the police inadequately described the informant only as "reliable." Id. at 111-12. Nonetheless, our Supreme Court found "[t]he informant's knowledge of the suspect's travel plans implicitly asserts a possible reliable basis of knowledge," and that "[t]he police corroboration under the surrounding circumstances generated . . . reasonable articulable suspicion to justify an investigative stop." Id. at 111-13. Moreover, here the informant gave more "hard-to-know detail," id. at 112, and Sergeant Nycz did "more than merely state that the tip came from a reliable confidential informant." Keyes, supra, 184 N.J. at 557.
The Court found the tip inadequate to generate the probable cause necessary to justify the search of the car. Id. at 113. Nonetheless, "[e]ven when an informant's tip standing alone may not be sufficient to constitute probable cause, it may generate a reasonable and articulable suspicion justifying further investigation." State v. Johnson, 171 N.J. 192, 215-16 (2002).
Defendant also relies on State v. Rodriguez, 172 N.J. 117 (2002), but that case involved "[a]n anonymous tip, [which] standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." Id. at 127.
Defendant alleges the motion judge misremembered some details of the informant's tip. However, in our de novo review, we find there was reasonable suspicion even if the informant referred to defendant only by his street name rather than his formal name, and knew the street where he lived if not the house number, particularly as that information was corroborated by the police.
As the motion judge found, defendant's subsequent actions clearly gave rise to probable cause. "[R]eactions by individuals to a properly limited Terry encounter, . . . such as flight, may often provide the necessary information, in addition to that the officers already possess, to constitute probable cause." State v. Tucker, 136 N.J. 158, 168 (1994) (citation omitted). Here, upon realizing the police were stopping the taxi, defendant exited it while it was still moving, threw the plastic bag he was holding into the storm drain, and fled on foot. These circumstances "reasonably justif[ied] an inference that [defendant's flight and throwing the bag] was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." Id. at 169 (citation omitted). Thus, defendant's actions of throwing the bag and fleeing "converted articulable suspicion into probable cause" for his arrest and for seizure of the bag. State v. Ramos, 282 N.J. Super. 19, 22 (App. Div. 1995); see State v. Carroll, 386 N.J. Super. 143, 155 (App. Div. 2006).
"Probable cause exists if at the time of the police action there is 'a "well grounded" suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (citation omitted). Based on the totality of the circumstances at the time defendant was apprehended — the detailed information from the informant about defendant's planned heroin purchase, police corroboration of defendant's travels, defendant throwing the bag into the storm drain upon police approach, and defendant's flight — the officers had "probable cause to believe that [defendant had] possess[ed] criminal contraband." State v. Lund, 119 N.J. 35, 48 (1990).
In any event, as the motion judge found, defendant abandoned the bag when he threw it in a storm drain. "Property is abandoned when one 'voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search.'" State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999) (citation omitted). Thus, when property is abandoned, "a defendant will have no right to challenge the search or seizure of that property." State v. Johnson, 193 N.J. 528, 548-49 (2008). Because defendant abandoned the bag before being seized, he cannot object to the seizure of the bag or its contents.
III.
Defendant argues his sentence was manifestly excessive. "It is well-established that appellate courts review the trial court's 'sentencing determination under a deferential standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015) (citation omitted). We must affirm the sentence unless:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[State v. Fuentes, 217 N.J. 57, 70 (2014) (citation omitted).]
Defendant claims that the trial court should have found mitigating factor eleven, even though he did not argue for it at sentencing. Mitigating factor eleven applies where "imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44(b)(11). Defendant argues a ten-year term of incarceration would entail excessive hardship to him and his four children.
However, defendant "offered no evidence to show that the length of his sentence would be an 'excessive hardship' on him." State v. Dalziel, 182 N.J. 494, 505 (2005) (quoting N.J.S.A. 2C:44-1(b)(11)). Moreover, defendant did not live with any of his children. Instead, the unemployed defendant lived with, and was supported by, his own mother. Defendant did not show that he provides any financial or emotional support to his children. Accordingly, "his incarceration could not constitute an excessive hardship on them." Ibid. Therefore, mitigating factor eleven was not applicable here.
Moreover, defendant's sentence was not clearly unreasonable. Based on defendant's current crimes and his extensive criminal history, the sentencing court found aggravating factors three, six, and nine, and found that no mitigating factors applied. That in itself justified a sentence at the upper end of the range. Indeed, the plea agreement called for an eight-year prison term with four years of parole ineligibility. Moreover, defendant failed to appear for sentencing after being warned that failing to appear at sentencing could result in imposition of the maximum sentence and that the State would move for a mandatory extended term of up to twenty years under N.J.S.A. 2C:43-6(f). After defendant's recapture, the State moved for an extended term. The court instead sentenced defendant to a ten-year term with five years of parole ineligibility.
According to defendant's brief, his plea deal was conditioned on his appearance at sentencing. See State v. Subin, 222 N.J. Super. 227, 238-39 (App. Div.), certif. denied, 111 N.J. 580 (1988). --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION