Opinion
DOCKET NO. A-2289-10T3
08-07-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NATHAN YOUNG, a/k/a NATHANIEL YOUNG, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel; Matthew Lynch, Legal Assistant, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-03-0403.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel; Matthew Lynch, Legal Assistant, on the brief). PER CURIAM
Defendant appeals the denial of his motion to suppress evidence seized as a result of a warrantless arrest. After the court denied the motion, defendant pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(3), as part of a negotiated plea agreement. He also appeals, as excessive, the seven-year custodial sentence imposed, which included a thirty-nine month period of parole ineligibility. We affirm.
The State called two witnesses, Officers Bryce Byham and Thomas Monahan, six-year and ten-year veterans, respectively, of the Neptune Township Police Department. Both officers had experience and specialized training in narcotics detection and enforcement. In addition, Byham had previously arrested defendant, with whom he was familiar. He also knew the type vehicle defendant operated, a white Jeep Cherokee.
On November 20, 2009, Officer Byham, while stopped in an unmarked vehicle at Eighth and Ridge Avenues, a high crime area, spotted defendant driving alone in the Cherokee. He noticed that defendant was traveling behind a Dodge Caravan mini-van, occupied by a white female driver, later identified as Nicole White, and a black male passenger, Michael Albano. Defendant and the occupants of the mini-van were all on their cell phones. He decided to follow the two vehicles and did so for five blocks before the vehicles pulled into a large shopping mall anchored by a Foodtown. The two vehicles parked next to each other. Albano exited the mini-van, but as he did so, a marked vehicle pulled into the parking lot. Albano got back into the mini-van, and White left the parking lot, followed closely by defendant.
Officer Byham continued to follow the two vehicles, and a short distance later, the two drivers pulled the vehicles over and parked on a residential street, Ridge Terrace. Albano exited the mini-van, walked back to the Jeep, and handed defendant a white envelope. Defendant, in turn, handed Albano an item which Officer Byham could not identify. As the two vehicles were driven away, Officer Bynum continued to follow. The drivers next stopped the vehicles in the parking lot of a convenience store located on Fourth Avenue. White and Albano exited the mini-van and approached the store. White entered the store while Albano remained outside. When White exited the store shortly thereafter, she gave Albano an unknown amount of currency. Albano walked over to defendant, who was still seated in his vehicle, and handed defendant the money.
Officer Byham relayed his observations to Officer Monahan and asked him to stop the occupants of the mini-van. By the time Officer Monahan arrived at 82 Ridge Avenue, White and Albano had exited the mini-van and were walking. He identified himself as a police officer and asked them to return to the mini-van. Albano initially told the officer that White was driving him home from work and that no stops had been made. When confronted with Officer Byham's observations, Albano told Officer Monahan he had just purchased cocaine from "Nate . . . the man in the white Jeep." Officer Monahan relayed this information to Officer Byham, who was still following defendant, who had returned to the Foodtown parking lot and parked in the same location where Officer Byham had earlier observed defendant parked next to the mini-van. He approached defendant, ordered him to exit the vehicle, and placed him under arrest.
Officer Byham conducted a search incident to defendant's arrest and uncovered the white envelope he saw Albano hand to defendant on Ridge Avenue. The envelope contained $180. A strip search was conducted at the police station, where narcotics were found in a small Gucci purse hidden in a pouch in defendant's underwear.
Defendant testified that just before his arrest, he had pulled into the Foodtown parking lot intending to go food shopping. He had been seated in his car for approximately two minutes when Officer Byham approached him. He knew the officer from a prior arrest and because the officer had engaged in three other illegal encounters with him. Officer Byham told him to get out of the car. After he exited his vehicle, the officer asked him whether he had been following a blue van. He denied doing so, and then Officer Byham "threw" handcuffs on him. When he asked the officer why he was being arrested, Officer Byham told him that it was for an old warrant. As he was being transported to the police station, defendant testified that Officer Byham, who was seated in the rear of the vehicle with him, put the Gucci purse down the back of defendant's pants. Defendant denied being involved in any narcotics transactions with White and Albano and also denied knowing them.
Judge Ronald Reisner, in a written opinion, credited the State's witnesses and found defendant's testimony "totally and completely incredible." He noted Officer Byham's observations:
(1) two vehicles following each other to several locations; (2) an encounter between the individuals in the vehicles interrupted by the entry of a police vehicle into the parking lot, which caused the two vehicles to leave; (3) a second encounter where the driver of the Jeep Cherokee handed something to the passenger of the Dodge Caravan; (4) a third encounter where what appeared to be money was given to the driver of the Jeep Cherokee by the passenger of the Dodge Caravan.
Based upon these observations, Judge Reisner concluded, under State v. Mann, 203 N.J. 328, 339 (2010), Officer Monahan "possessed an articulable, reasonable suspicion that Albano and White had engaged in criminal activity, and thus the investigative stop of them was lawful."
Judge Reisner next concluded that following Officer Monahan's investigative stop, the additional information he obtained and subsequently conveyed to Officer Byham, along with Officer Byham's earlier observations, prior knowledge of defendant as a previous narcotics offender, and the fact that the events had unfolded in a high crime area, "provided Officer Byham with a well-founded suspicion that defendant was guilty of a narcotics offense," thus justifying defendant's lawful arrest.
Finally, Judge Reisner found both the search incident to defendant's arrest that took place in the Foodtown parking lot and the strip search that occurred later at the police station lawful.
Following the denial of his suppression motion, defendant pled guilty to possession of a controlled dangerous substance with intent to distribute as part of a negotiated plea agreement. In exchange for the guilty plea, the State agreed to recommend that defendant, who was extended term eligible, pursuant to N.J.S.A. 2C:43-6(f) and the Brimage Guidelines due to a prior narcotics distribution conviction and four prior indictable convictions, receive a seven-year custodial sentence, including a thirty-nine-month period of parole ineligibility.
At sentencing, Judge Reisner found three aggravating factors: (1) The risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); (2) the extent and seriousness of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and (3) the need to deter defendant and others from engaging in further criminal activity, N.J.S.A. 3C:44-1(a)(9). The judge found no mitigating factors.
On appeal, defendant raises the following points for our consideration:
POINT I
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY [CONSTITUTION] WAS VIOLATED.
A. THE DEFENDANT AND CO-DEFENDANTS WERE UNLAWFULLY SEIZED WITHOUT REASONABLE SUSPICION THAT THEY WERE INVOLVED IN CRIMINAL ACTIVITY.
B. THE EVIDENCE MUST BE SUPPRESSED BECAUSE THE DEFENDANT WAS UNLAWFULLY SEARCHED INCIDENT TO A WARRANTLESS ARREST WITHOUT PROBABLE CAUSE.
POINT II
THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
We have considered these arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11—3(e)(2). We affirm substantially for the reasons expressed by Judge Reisner in his written opinion rendered on September 3, 2010.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
State v. Brimage, 153 N.J. 1, 20-22 (1998) (holding plea-bargaining guidelines for offenses then in place were not consistent throughout the State and must be made uniform). As a result of the Court's holding in Brimage, the Attorney General promulgated the "Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12," also known as the "Brimage Guidelines."