Opinion
DOCKET NO. A-4266-11T4
07-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GARY L. BROWN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 10-06-0084. Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief). PER CURIAM
This matter is before us a second time. In our prior opinion, we conditionally dismissed defendant's appeal, holding that he waived his right to appeal five of the seven points contained in his brief by failing to enter a conditional guilty plea pursuant to Rule 3:9-3(f). State v. Brown, No. A-4266-11 (App. Div. Sept. 10, 2015) (slip op. at 6-9). We gave defendant the opportunity to move before the Law Division to withdraw his guilty pleas, id. at 7-8, and agreed to consider the two remaining points if defendant chose not to do so and moved to reinstate the appeal. Id. at 8. The Supreme Court denied defendant's petition for certification. 224 N.J. 124 (2016).
Although citing an unpublished opinion is generally forbidden, we do so here to provide a full understanding of the issues presented and pursuant to the exception in Rule 1:36-3 that permits citation "to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law." See Badiali v. N.J. Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff'd, 220 N.J. 544 (2015). --------
Defendant elected not to seek to withdraw his guilty pleas. We reinstated his appeal as to the two arguments that remained, specifically:
POINT ONE:
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.
. . . .
Having now considered these arguments in light of the record and applicable legal standards, we affirm defendant's conviction and the sentence imposed. However, the State concedes that merger was required; we therefore remand the matter to the Law Division to enter a corrected judgment of conviction (JOC).
POINT SEVEN:
THE SENTENCING JUDGE IMPROPERLY FAILED TO MERGE COUNTS ONE AND SEVEN INTO COUNT TWO AND FAILED TO CONSIDER AN APPLICABLE MITIGATING FACTOR.
I.
We set forth some salient background facts and procedural history by referring to our prior opinion and the opinion affirming the conviction of co-defendant Roy Harte. State v. Harte, No. A-5385-11 (App. Div., Jan. 12), certif. denied, 221 N.J. 492 (2015). Defendant and four others were indicted for their involvement in an interstate conspiracy to, and actual distribution of, large amounts of marijuana from Arizona to New Jersey. Brown, supra, slip op. at 1-2. Following the denial of a series of pre-trial motions, defendant pled guilty to second-degree conspiracy to distribute marijuana, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(10)(b) and N.J.S.A. 2C:5-2 (Count One); first-degree distribution of marijuana, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(10)(a), N.J.S.A. 2C:35-5(c) and N.J.S.A. 2C:2-6 (Count Two); and third-degree distribution of marijuana within one-thousand feet of a school, N.J.S.A. 2C:35-7 (Count Seven), and was sentenced to thirteen years' imprisonment with a six-and-one-half-year period of parole ineligibility. Id. at 2.
The investigation had its genesis in Arizona.
On June 27, a confidential informant who worked at UPS contacted Scott Dodd, a narcotics detective with the Arizona State Police, and informed him of a suspicious transaction involving [co-defendant] Philips. Dodd went to the UPS shipment hub, located the packages, and, after a trained narcotics dog identified the boxes, Dodd phoned Sergeant Mark Primarano with the New Jersey State Police. The packages were permitted to proceed, and Dodd provided Primarano with the delivery information, including the Fairfield business that was the destination. New Jersey authorities set up a surveillance of the business on the anticipated delivery date of the first shipment, July 5.In the interim, on July 3, 2007, New Jersey law enforcement authorities had applied for and received anticipatory search warrants for the three boxes. On July 4, they applied for and received another anticipatory search warrant for the business location.
[Harte, supra, slip op. at 3-4.]
On July 5, officers surveilled the business, witnessed Harte load three boxes into co-defendant McKoy's car, stopped the car and seized the boxes, which were found to contain large quantities of marijuana. Id. at 4-5. Additional boxes were seized over the next few days and found to contain quantities of marijuana. Id. at 5-6.
Defendant and his co-defendants moved to suppress the evidence, arguing that, based upon material misrepresentations contained in the affidavits supporting the warrants, they were entitled to a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Defendants argued that the affidavits failed to mention the existence of the confidential informant who supplied Dodd with the tip before the officer performed the "outbound parcel inspection" with the narcotics dog in Arizona.
Judge Michael A. Petrolle rejected that argument as "baseless." He reasoned:
[N]othing in the affidavits . . . is in any way demonstrated to be untrue. And absence of a reference to information provided by an informant does not in any way conceal information that would be detrimental to the State.
If at worst the informant were not considered reliable by the Arizona authorities, they were still in a position where they had sufficient evidence to satisfy [the issuing judge] that there was probable cause when it was presented by the New Jersey authorities. The fact that the New Jersey authorities left out a reference to informant's information does not undermine the veracity or sufficiency of the affidavits.
. . . .
Further, it is fair for the authorities to conclude that since it wasn't their informant they had no way to assess the informant's reliability. They could report the information of law enforcement authorities that was actual observations
. . . in Arizona that was completely truthful . . . .
. . . .
There's nothing in the affidavit[s] that's untrue.
Before us, defendant reiterates the argument made before Judge Petrolle. We affirm and add only the following comments.
A search conducted pursuant to a warrant is presumptively valid, and a defendant challenging the search bears the burden of demonstrating "'the invalidity of such a search'" and "'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Robinson, 200 N.J. 1, 7-8 (2009) (quoting State v. Valencia, 93 N.J. 126, 133 (1983)). "[U]nder certain circumstances, a search warrant's validity may be questioned, in which case an evidential hearing may be afforded." State v. Dispoto, 383 N.J. Super. 205, 216 (App. Div. 2006), mod. on other grounds, 189 N.J. 108 (2007).
In Franks, the Court said:
[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.
[Franks, supra, 438 U.S. at 155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.]See also State v. Howery, 80 N.J. 563, 568 (recognizing Franks as controlling law in New Jersey regarding "veracity challenges" to affidavits), cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979). Our courts have also recognized that "[m]aterial omissions in the affidavit may also invalidate the warrant." State v. Marshall, 148 N.J. 89, 193 (1997) (citing State v. Stelzner, 257 N.J. Super. 219, 235 (App. Div.), certif. denied, 130 N.J. 396 (1992)).
Here, there was no need to hold an evidentiary hearing since it was obvious that the affidavits did not include any reference to the Arizona informant, and, instead, picked up the investigative probable cause chain with the actual observations Dodd made of the packages while they were in Arizona, and the subsequent canine alert on those packages. Omitting the original tip did not, as Judge Petrolle properly determined, undermine the issuing judge's findings of probable cause, which is the ultimate burden in a Franks challenge. See Franks, supra, 438 U.S. at 155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672 ("the allegedly false statement is necessary to the finding of probable cause"); accord Howery, supra, 80 N.J. at 568; see also State v. Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987) ("[T]he statements challenged as false must be material to the extent that when they are excised from the affidavit, whatever remains no longer establishes the requisite probable cause to support issuance of the search warrant.").
In State v. Meighan, 173 N.J. Super. 440, 448 (App. Div.), certif. denied, 85 N.J. 122 (1980), the affiant omitted that an eyewitness, who eventually did identify the defendant, was unable to do so at first. In dicta, we concluded that the defendant failed to meet the Franks standard, i.e., "that the affiant's statements were materially untrue, that such untrue statements were made knowingly and intentionally or recklessly or that the magistrate would not have issued, or could not have found probable cause to issue, the warrant had he known all the facts." Id. at 449. So too, in this case, the affidavits provided ample probable cause for the issuance of the warrants, and omitting any reference to Dodd's Arizona confidential informant's tip did not undermine that conclusion.
II.
A different judge sentenced defendant to a seven-year term of imprisonment with a three-and-one-half year period of parole ineligibility on Count One, a concurrent thirteen-year term with a six-and-one-half year period of parole ineligibility on Count Two and a concurrent four-year term with a two-year period of parole ineligibility on Count Seven. The State concedes that Counts One and Seven should have been merged into Count Two, and we agree.
The judge found aggravating factors three (the risk of re-offense), six (defendant's prior record) and nine (the need to deter defendant and others). N.J.S.A. 2C:44-1(a)(3), (6) and (9). He found no mitigating factors. N.J.S.A. 2C:44-1(b).
Defendant contends that the sentence imposed on Count Two was excessive. He argues that the judge should have found mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), his willingness to cooperate with the State, because the plea bargain required defendant to testify truthfully against his co-defendants if called upon to do so at trial. Defendant contends that had the judge found mitigating factor twelve, it would have affected the sentencing calculus, because aggravating factors three and six should have been accorded little weight in light of defendant's single prior indictable conviction.
"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). As the Court has said:
The appellate court 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) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
In this case, the judge considered the application of mitigating factor twelve at sentencing. However, the judge determined that defendant was never required to testify and there were no other circumstances justifying a finding as to mitigating factor twelve. In short, the judge engaged in the proper exercise of his broad sentencing discretion. State v. Case, 220 N.J. 49, 65 (2014).
We affirm defendant's conviction and the sentence imposed on Count Two. The matter is remanded to the Law Division for the filing of an amended JOC reflecting the required mergers in accordance with this decision. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION