Opinion
DOCKET NO. A-4398-12T1
01-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RASHAN A. HARVARD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Rory A. Eaton, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-08-0489. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Rory A. Eaton, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by SUMNERS, JR., J.A.D.
Defendant Rashan A. Harvard pled guilty to unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and possession of drug paraphernalia, N.J.S.A. 2C:36-2, following the denial of his motions to dismiss the indictment and suppress evidence, and was sentenced to a five-year period of incarceration subject to a three-year term of parole ineligibility. Defendant now appeals the denial of his motions and his sentence, arguing:
POINT IConsidering these arguments in light of the applicable law and facts, we affirm.
THE TRIAL COURT COMMITTED ERROR IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE INITIAL CAR STOP.
POINT II
THE TRIAL COURT COMMITTED ERROR BY DENYING THE DEFENDANT'S ARGUMENT THAT THE OFFICERS CONDUCTED A PRE-TEXTUAL STOP.
POINT III
THE TRIAL COURT COMMITTED ERROR BY DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE SEARCH WARRANT.
POINT IV
THE TRIAL COURT COMMITTED ERROR BY NOT DISMISSING THE INDICTMENT.
POINT V
THE DEFENDANT'S SENTENCE WAS EXCESSIVE.
I.
We discern the following facts from the record developed at the motion hearing and sentencing. On May 28, 2010, at approximately 7:58 p.m., Franklin Township police officers Sam Hernandez and Michael Opaleski were patrolling in a marked police cruiser the area near the Hempstead Shopping Plaza, a high crime area known particularly for narcotics trafficking. Hernandez and Opaleski requested a random license plate check on a black vehicle driving in the area. While waiting to receive the results from dispatch, the officers noticed that the driver's side brake light was out, a violation of N.J.S.A. 39:3-66. The license plate check revealed that the registered-owner of the vehicle, later identified as defendant, had a suspended driver's license. The officers turned on the cruiser's overhead lights, and pulled the vehicle over into a parking lot.
When he stood by the vehicle with its door open because the window was inoperable, Hernandez detected the odor of raw marijuana coming from inside the car, and observed several empty plastic baggies on the driver's side floor and in the driver's side door pockets. Based upon these observations, Hernandez ordered defendant to step out of the vehicle, handcuffed him, and asked twice for his consent to search the vehicle. Defendant did not consent to the search, and the vehicle was subsequently impounded. When the vehicle was impounded, Officer Joseph Buda of the Manville Police Department conducted a canine sniff of the vehicle, resulting in an alert of the presence of narcotics near the front passenger side of the vehicle. Consequently, the officers were granted a warrant to search the vehicle.
Defendant's passenger was released from the scene, but was later charged under Indictment No. 10-08-0489 as a co-defendant; however, he does not join in this appeal.
The search of the vehicle's glove box revealed eleven small baggies containing a "green, leafy, vegetative substance suspected to be marijuana" with dollar symbols labelled on the individual bags, another baggie containing a small amount of raw marijuana, and a digital scale. The search of the vehicle's trunk revealed several small empty baggies bearing a "green money logo," a larger digital scale, a suitcase containing paperwork with defendant's name on it, and a loaded revolver.
Thereafter, defendant was issued several motor vehicle summons. On August 25, 2010, under Indictment No. 10-08-0489, defendant and his passenger were charged with fourth-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(12) (count one); third-degree possession of a CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7 (count two); second-degree possession of a firearm during the commission of a CDS crime, N.J.S.A. 2C:39-4.1(a) (count three); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four).
Due to a later, unrelated automobile stop on March 4, 2011, defendant was issued several motor vehicle summons. As a result of this stop, defendant was also arrested for failure to appear on Indictment No. 10-08-0489, and on August 18, 2011, under Indictment No. 11-08-0553, defendant was charged with third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b).
Defendant moved to suppress evidence seized as a result of the May 28, 2010 automobile stop, and to dismiss Indictment No. 10-08-0489, while the State moved to join Indictments No. 10-08-0489 and 11-08-0553. Specifically, defendant argued that the stop constituted selective enforcement based on racial profiling, and was therefore improper. Moreover, defendant argued that the indictment should be dismissed in its entirety because Hernandez testified falsely during the grand jury hearing, and the State failed to preserve video surveillance evidence of the impounded vehicle search and audio evidence of communications between the State and prior defense counsel. Defendant also requested a Franks hearing, arguing that Hernandez and Buda made false statements to the court in order to obtain the search warrant and, therefore, the search warrant should be voided and the seized contraband suppressed.
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), as adopted by State v. Howery, 80 N.J. 563 (1979).
Following hearings on April 10 and May 24, 2012, the trial court issued its written opinion on June 13, 2012, and entered an order dated June 26, 2012, denying all the relief sought by defendant, while granting the State's request to join the indictments. Citing State v. Laws, 262 N.J. Super. 551 (App. Div. 1993), the judge reasoned that "[g]iven the non-adversarial nature of the [g]rand [j]ury proceedings, even incomplete or imprecise [evidentiary] presentation does not warrant dismissal," finding that "dismissal of the indictment is fundamentally without merit," because there was "no misconduct on part of the State in its presentation to the grand jury." Further, the trial court found "no bad faith or connivance on the part of the State with respect to the loss of the physical evidence," and that "[a]dditionally, [] [d]efendant failed to establish that he was prejudiced by the loss of the evidence."
With respect to the motion to suppress, the trial court found the stop of defendant's vehicle was lawful due to Hernandez's credible testimony that he witnessed defendant commit a motor vehicle violation and the absence of any evidence to support defendant's argument that he was stopped based on racial profiling. The judge also cited that the broken brake light could be seen in the video captured by the patrol cruiser's mobile video recorder (MVR). In denying the request for a Franks hearing, the judge rejected defendant's claim that Buda made false statements in order to obtain a search warrant, in addition to finding, "sufficient probable cause to issue the search warrant without the testimony of [] Buda and without reference to the positive canine alert," such as Hernandez's testimony of smelling of marijuana emanating from defendant's vehicle.
Finally, the trial court found that Indictments No. 10-08-0489 and 11-08-0533 arose from the same episode, because 11-08-0533 arose from defendant's failure to appear for a pre-arraignment interview on 10-08-0489. Therefore, under Rule 3:15-1(b), the court held that mandatory joinder was appropriate.
On December 4, 2012, defendant pled guilty to count one on Indictment No. 10-08-0489, amended to possession of drug paraphernalia, N.J.S.A. 2C:36-2, and to count four, unlawful possession of a weapon; and two motor vehicle summons. The State agreed to dismiss the remaining charges.
On March 1, 2013, in accordance with the plea agreement, defendant was sentenced to five years of incarceration with a stipulated three-year period of parole ineligibility on count four, and received suspension of his driving privileges for the motor vehicles offenses. This appeal followed.
II.
We first address defendant's arguments raised in Point I challenging the trial court's decision denying his motion to suppress the evidence seized in the motor vehicle stop. Defendant argues that the judge erred in finding that there was credible testimony by Hernandez and Buda to support probable cause to stop his vehicle. To establish that their testimony lacked credibility, defendant cites discrepancies in their testimony and incident reports regarding the county where his vehicle was stopped, and their description of events, such as the number of car lengths they followed his vehicle and how much time elapsed before the police pulled his vehicle over.
We begin by noting that "a trial court's factual findings are entitled to deference." State v. Hathaway, 222 N.J. 453, 467 (2015) (citing State v. Elders, 192 N.J. 224, 244 (2007)). "[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." State v. Rockford, 213 N.J. 424, 440 (2013) (citation 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) (citation omitted). "Thus, appellate courts should reverse only when the trial court's determination is so clearly mistaken that the interests of justice demand intervention and correction." State v. Gamble, 218 N.J. 412, 425 (2014) (citation omitted). Furthermore, we review de novo the trial court's application of legal principles to such factual findings, State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005), as well as the trial court's pure determinations of law. State v. Mann, 203 N.J. 328, 337 (2010).
"'[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,'" a less strenuous standard than probable cause. State v. Locurto, 157 N.J. 463, 470 (1999) (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979))). "To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor-vehicle violation occurred." Ibid. If during a motor vehicle investigative stop there is suspicion about illegal activity beyond the traffic offense, an officer may broaden his inquiry to address those suspicions. State v. Baum, 199 N.J. 407, 424 (2009) (citing State v. Dickey, 152 N.J. 468, 470-80 (1998)). Our Court has held that the "smell of marijuana [from a vehicle] constitutes probable cause to believe [a] crime has been committed and that additional contraband might be present." State v. Pena-Flores, 198 N.J. 6, 30 (2009) (citing State v. Nishina, 175 N.J. 502, 515-16, (2003)).
State v. Witt, ___ N.J. ___, *53 (2015), overturned Pena-Flores prospectively for searches occurring after September 24, 2015, on other grounds.
Applying these principles, we discern no error in the trial court's order. The officers discovered that the registered-owner of the vehicle had a suspended driver's license in violation of N.J.S.A. 39:3-40. At the same time, they observed that defendant's brake lights were not in good working order as required by N.J.S.A. 39:3-66. The trial judge credited Hernandez's and Buda's testimony that they stopped defendant's vehicle because the brake light was broken and that they had reason to investigate a driver with a possible suspended license. The judge also found credible Hernandez's testimony that once he stood next to defendant's vehicle, he detected the odor of raw marijuana coming from inside the vehicle, giving rise to suspicions about illegal activity beyond the traffic offense. We see no reason to disagree with the judge that these circumstances gave the officers a reasonable basis to stop defendant's vehicle and seek a search warrant as discussed below. Defendant's contentions regarding certain discrepancies in the officers' testimony do not weaken the judge's findings.
We next address defendant's contention in Point II that the court erred in denying his request seeking discovery to substantiate his racial profiling claim. He argues that taking into account the officers' conflicting testimony surrounding the stop, he established a prima facie case of racial profiling based upon a police stop of his vehicle with two occupants of African-American descent in a high narcotics street dealing area. We disagree.
The mere assertion of racial profiling does not justify disclosure of police records. State v. Ballard, 331 N.J. Super. 529, 542 (App. Div. 2000). A defendant seeking discovery on the basis of racial profiling must present "'a colorable claim that a police agency has an officially sanctioned or de facto policy of selective enforcement against minorities.'" Ibid. (quoting State v. Smith, 306 N.J. Super. 370, 378, (App. Div. 1997) (citing State v. Kennedy, 247 N.J. Super. 21, 29-30 (App. Div. 1991))).
Here, the weapons and drug paraphernalia offenses to which defendant pled guilty arose out of a motor vehicle stop after police discovered that the registered-owner of the vehicle had a suspended driver's license and they observed that vehicle's brake lights were not in good working order. Once the vehicle was stopped and the driver was questioned, the smell of marijuana emanating from the vehicle led to a canine sniff and search warrant. There was no conflicting testimony by the officers which support a finding that the motor vehicle stop, and subsequent search and seizure were not legal. Defendant's bald allegations of racial profiling based upon the fact that he and his passenger are African-American and arrested in an area known for drug dealing does not establish a colorable claim of racial profiling warranting discovery of police reports in other cases.
Turning to defendant's contention in Point III, he argues that the affidavit in support of the search warrant, as well as the testimony provided to support the search warrant, set forth materially false statements that were made intentionally or with reckless disregard for the truth, thus invalidating the search warrant. Specifically, defendant argues that Hernandez testified that it took defendant a few minutes to pull his vehicle over, while the MVR showed that defendant pulled his car over within thirty seconds, and that when obtaining the search warrant, Buda testified that the drug-sniff dog alerted at the trunk, although no drugs were found in the trunk. Defendant contends that the court should have conducted an evidentiary Franks hearing to determine the validity of the statements in the search warrant application. We disagree.
In Franks, the Supreme Court held:
where 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.New Jersey has adopted the use of a Franks hearing when a defendant meets his threshold showing. See, e.g., State v. Smith, 212 N.J. 365, 413 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). Thus, "[s]uch a hearing is required only if the defendant can make a substantial preliminary showing of perjury." State v. Howery, 80 N.J. 563, 583 n.4 (1979). "He must allege 'deliberate falsehood or reckless disregard for the truth,' and those allegations must be supported by an offer of proof." Ibid. (quoting Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682). Furthermore, the statements claimed to be false must have been material to the finding of probable cause. Ibid. A defendant's claim must be more than conclusory and must be "supported by more than a mere desire to cross-examine." Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682. "[A] Franks hearing is not directed at picking apart minor technical problems with a warrant application; it is aimed at warrants obtained through intentional wrongdoing by law enforcement agents . . . ." State v. Broom-Smith, 406 N.J. Super. 228, 240 (App. Div. 2009), aff'd, 201 N.J. 229 (2010).
[Franks, supra, 438 U.S. at 155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.]
Here, as the trial judge recognized, the warrant satisfied the requirement of probable cause even without Buda's testimony concerning the canine's alerts based upon the smell of marijuana emanating from defendant's car when he was stopped. In addition, we agree with the judge's finding that defendant did not make a substantial preliminary showing that Buda made a false statement knowingly, intentionally, or with reckless disregard for the truth. Accordingly, we conclude the judge did not err in denying defendant a Franks hearing.
In Point IV, defendant contends that the trial court should have dismissed the indictment because the State failed to preserve audio and video recordings which could have been used to impeach the officers' account of the arrest and vehicle search. Specifically, defendant argues that the State acted in bad faith by not preserving the radio dispatch transmissions during his arrest when it was on notice that the recordings were material to his defense pertaining to the license plate check, the brake light violation, and the officers' location prior to encountering defendant and initialing the stop. With respect to the State's representation that there was no video recording of the search of defendant's impounded vehicle because there was no video surveillance of the area where his vehicle was impounded, defendant asserts that the conflicting testimony by police officers as to the existence of video surveillance demonstrates connivance by the State.
We agree with the State that defendant waived his right to challenge dismissal of the indictment because he failed to preserve his appeal rights when entering into an unconditional guilty plea. R. 3:9-3(f) (permitting appeal of an issue preserved by the entry of a conditional plea); see also, State v. Robinson, 224 N.J. Super. 495, 499 (App. Div. 1988) (finding failure to preserve appeal in the absence of any discussion of the subject at the time of the plea); State v. Kaye, 176 N.J. Super. 484, 489 (App. Div. 1980) (right to challenge pretrial conduct of the State was waived "[s]ince defendant knowingly and intentionally pleaded guilty in open court with the assistance of counsel"), certif. denied, 87 N.J. 316 (1981). At no time during the proceedings below did defendant explicitly or implicitly refer to the possibility that his motion to dismiss the indictment was preserved. Defendant's request to dismiss the indictment due to the alleged failure to provide evidence does not involve a Fourth Amendment search and seizure violation, which can be appealed without a conditional plea. R. 3:5-7(d). Nonetheless, we will review the merits of the claim.
We recently summarized the law governing the State's obligation to preserve evidence, noting the distinction between evidence that is exculpatory, and evidence that is merely potentially useful:
[T]he State is obliged under due process principles to disclose exculpatory evidence. See [Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963).] Suppression of such evidence violates due process. State v. Martini, 160 N.J. 248, 268 (1999). . . .
"In order to establish a Brady violation, the defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." Martini, supra, 160 N.J. at 268. Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." State v. Knight, 145 N.J. 233, 246 (1996)
(internal quotation marks and citation omitted).
Exculpatory evidence is treated differently from merely potentially useful evidence. Suppression of requested exculpatory evidence violates due process, regardless of the prosecution's good faith. Id. at 245; George v. City of Newark, 384 N.J. Super. 232, 243 (App. Div. 2006). However, "[w]ithout bad faith on the part of the State, 'failure to preserve potentially useful evidence does not constitute a denial of due process of law.'" Ibid. (quoting Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988)); see also State v. Mustaro, 411 N.J. Super. 91, 102-103 (App. Div. 2009). Where evidence has been destroyed, the court must focus on "(1) whether there was bad faith or connivance on the part of the government, (2) whether the evidence . . . was sufficiently material to the defense, [and] (3) whether [the] defendant was prejudiced by the loss or destruction of the evidence." State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.), certif. denied, 101 N.J. 335 (1985).
[State v. Robertson, 438 N.J. Super. 47, 67-68 (App. Div. 2014), certif. granted on other grounds, 221 N.J. 287 (2015).]
Applying these principles, we conclude that the indictment should not be dismissed due to the failure to preserve the radio dispatch transmissions and the absence of any video recordings of the vehicle search. The trial court did not expressly explain its finding that there was "no bad faith or connivance on the part of the State with respect to the loss of the physical evidence," or that "[d]efendant failed to establish that he was prejudiced by the loss of evidence." Moreover, contrary to the court's finding, we recognize that evidence of the radio transmissions and vehicle search would have been potentially useful, by challenging the officers' credibility.
Even so, the potentially useful evidence falls short of exculpatory and material evidence, so as to trigger Brady. Evidence of the radio communications would not dispute: the MVR depicting the broken brake light, which contributed to the stop, the odor of marijuana emanating from defendant's vehicle, the presence of drug paraphernalia in defendant's vehicle, or the canine sniff which contributed to the search warrant. As for the vehicle search, there is no evidence that it was recorded. The mere fact that the State's witnesses gave conflicting views as to whether the impound vehicles were under video surveillance does not establish there was a cover-up of the existence of any video recordings. At most, this evidence would have been useful to the defense.
Therefore, defendant bore the burden to establish bad faith. Youngblood, supra, 488 U.S. at 57, 109 S. Ct. at 337, 102 L. Ed. 2d at 289. There was sufficient credible evidence to support the trial court's finding that defendant did not meet that burden. Defendant's request for the recording was made after the recording was destroyed in accordance with the police department's retention policy, as prescribed by State of New Jersey guidelines. Defendant presented no direct evidence that recordings were purposely destroyed or erased. In short, defendant failed to establish bad faith destruction of evidence. Therefore, we reject defendant's argument that the alleged destruction of exculpatory evidence warrants dismissal of the indictment.
Finally, we address defendant's contention that the trial court erred in denying his request to be sentenced one degree lower, based upon credible, competent evidence in the record to support such a sentence. In support, defendant argues the trial court should have applied mitigating factors one, two, eight, nine, ten, and twelve. N.J.S.A. 2C:44-1(b)(1) (conduct neither caused nor threatened serious harm); -1(b)(2) (not contemplate that conduct would cause or threaten serious harm); -1(b)(8) (conduct was the result of circumstances unlikely to recur); -1(b)(9) (the character and attitude of the defendant indicate that he is unlikely to commit another offense); -1(b)(10) (likely to respond affirmatively to probationary treatment); and -1(b)(12) (willingness to cooperate with law enforcement). Defendant contends that even if the court did not apply mitigating factors ten and twelve, the other mitigating factors would clearly and convincingly outweigh the aggravating factors to justify a sentence in the third-degree range, such as a three-year term with a three-year period of ineligibility to be consistent with the Graves Act, N.J.S.A 2C:43-6c.
Defendant acknowledges that he did not argue for mitigating factor twelve at sentencing but now contends his "history, acceptance of responsibility, and remorsefulness would make an appropriate candidate to assist law enforcement[.]" --------
We begin by noting that review of a criminal sentence is limited; a reviewing court must decide "whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). Under this standard, a criminal sentence must be affirmed unless "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" Ibid. (alteration in original) (citation omitted). If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 494 (1996).
Pursuant to N.J.S.A. 2C:44-1(f)(2), a judge is allowed to sentence a first- or second-degree crime to sentence one degree lower if "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands." The Supreme Court has held that "[t]he reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." Megargel, supra, 143 N.J. at 505.
We are satisfied that based on the record, there was no compelling reason to sentence defendant one degree lower. We find support for the aggravating factors that were applied, and no basis for the mitigating factors asserted by defendant. The sentence was in accord with the plea agreement, and is neither inconsistent with our sentencing guidelines nor does it shock the judicial conscience. See State v. Fuentes, 217 N.J. 57, 70-71 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION