Opinion
DOCKET NO. A-4828-12T3
10-21-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KAREEM LAWTON WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Kennedy. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-06-1015. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After losing his pre-trial motion to suppress, defendant pled guilty to the reduced charge of third-degree conspiracy to manufacture, distribute, or possess with the intent to distribute cocaine, N.J.S.A. 2C:35-5(a), 35-5(b)(1), and 5-2. Pursuant to a plea agreement with the State, defendant received a sentence of 395 days in jail, the amount of time he had spent in jail on these charges prior to sentencing. He was ordered to pay the mandatory monetary penalties, but was not placed on probation.
When appealing his April 5, 2013 judgment of conviction, defendant raised only the following issue:
POINT I: THE CONTRABAND FOUND ON DEFENDANT AND IN HIS CAR SHOULD BE SUPPRESSED BECAUSE THE TELEPHONIC WARRANT AUTHORIZING THE SEARCH AND SEIZURE SHOULD NOT HAVE ISSUED.After reviewing the record in light of the contentions advanced on appeal, we affirm the denial of defendant's motion to suppress substantially for the reasons stated in the motion judge's thorough written opinion of August 27, 2010. Although the sentence imposed was illegal, we are constrained not to correct it because defendant completed the sentence when imposed.
A. The Police Did Not Provide The Judge With Sufficient Facts From Which A Finding Of Probable Cause Could Reasonably Have Been Made.
B. The Police Did Not Establish The Requisite Exigency Necessary For A Telephonic Warrant Under Then-Existing Law.
C. The Warrant Was Based In Large Measure On Unsworn "Testimony" Of An Assistant Prosecutor.
Defendant was indicted with twelve co-defendants. After one of the co-defendant's release from jail on bail on a charge of possession of cocaine with the intent to distribute, the co-defendant was the subject of a communications data warrant (CDW). Intercepted phone calls and texts revealed that this co-defendant had sent out word to his customers that he was back in the business of selling illegal drugs, and was shortly expecting the delivery of a quantity of drugs. The police observed defendant arrive at this co-defendant's home and wait in the driveway presumably for a drug delivery.
All parties were immediately secured at the scene and a telephonic warrant obtained to search, among other places, defendant's person and his car. The police found the following items containing a white powder residue suspected to be cocaine in defendant's car: a peanut container with a false bottom, a scale, a blender and three plastic baggies. Defendant also had $2,606 on his person.
It is well-settled that "a search executed pursuant to a warrant is presumed to be valid and that a defendant challenging its validity has the burden to prove 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Jones, 179 N.J. 377, 388 (2004) (quoting State v. Valencia, 93 N.J. 126, 133 (1983)). "In considering such a challenge, '[w]e accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant.'" Ibid. (alteration in original) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). Any doubt as to the validity of the warrant "should ordinarily be resolved by sustaining the search." Id. at 389 (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)).
The motion judge addressed the arguments now raised by defendant on appeal. As the judge indicated, although the unsworn assistant prosecutor furnished some information to the judge who issued the telephonic warrant, the sworn officer provided sufficient telephonic testimony to substantiate both probable cause and exigency, thus fully justifying the issuance of the warrant. For the same reasons expressed by the motion judge, we affirm the denial of defendant's motion to suppress the evidence obtained pursuant to the telephonic search warrant.
The telephonic warrant was obtained prior to our Supreme Court's determination that exigency was not required to obtain a telephonic warrant. State v. Pena-Flores, 198 N.J. 6, 33-36 (2009). --------
Although not raised by either party, we are not free to ignore the imposition of an illegal sentence, nor may parties "negotiate an illegal sentence." State v. Crawford, 379 N.J. Super. 250, 257-58 (App. Div. 2005). Defendant pled guilty to a third-degree crime, for which a defendant may receive a custodial sentence of three to five years in prison, N.J.S.A. 2C:43-6(a)(3), or up to 364 days imprisonment as a condition of probation, N.J.S.A. 2C:45-1(e). Probation must be imposed for at least one year, although a defendant may be discharged from probation at any time. N.J.S.A. 2C:45-2(a). Pursuant to this statutory sentencing framework, a sentence of 395 days imprisonment is not a legal sentence for a third-degree crime. See State v. Chavies, 345 N.J. Super. 254, 277 (App. Div. 2001) (stating that a defendant convicted of a third-degree crime cannot be sentenced within the fourth-degree range).
Although defendant had not yet paid the financial penalties imposed, because he was sentenced to time served without probation, we view his sentence as completed when imposed. "An illegal sentence may be corrected at any time before it is completed." State v. French, 437 N.J. Super. 333, 335 (App. Div. 2014). Our Supreme Court has held that a court cannot "amend a judgment of conviction after a defendant has finished serving the sentence imposed upon him." State v. Schubert, 212 N.J. 295, 299, 313 (2012). In Schubert, after the defendant completed his sentence and was discharged, the State Parole Board indicated that the sentence was illegal since the sentence "did not contain any reference to community supervision for life in accordance with the terms of N.J.S.A. 2C:43-6.4." Id. at 301. The Court held that amending the defendant's judgment of conviction would violate the "New Jersey Constitution and its prohibition against double jeopardy" because the defendant had "a legitimate expectation of finality in his sentence." Id. at 313, 316.
We recognize that the universal application of this reasoning would result in the inability to ever correct an illegal sentence of time-served, because such a sentence is already served at the time it is imposed. A stay would be fruitless. We have confidence that in this matter the State did not intentionally thwart the Legislature's sentencing framework by offering defendant a plea agreement of more than 364 days of time-served, which lead to the imposition of an illegal sentence, nor did the judge thoughtfully impose this illegal sentence. We view this unusual situation as one not likely to recur and therefore our affirmance unlikely to lead to a widespread frustration of the Legislature's intent, especially when a substantially similar sentence could have been legally imposed within the statutory structure.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION