DOCKET NO. A-1116-10T1
Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the briefs). Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lihotz.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-03-00264.
Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the briefs).
Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Joseph M. Gratacos was convicted of third-degree burglary, N.J.S.A. 2C:18-2 (count one); the lesser included disorderly person's offense of theft by unlawful taking, N.J.S.A. 2C:20-3 (count two); and fourth-degree hurling bodily fluids at a law enforcement officer, N.J.S.A. 2C:12-13 (count three). Defendant was sentenced to a four-year custodial term on count one; a concurrent six-month term on count two, and a consecutive nine-month term for the conviction on count three.
A separate complaint, charging defendant with disorderly persons offenses of criminal mischief, N.J.S.A. 2C:17-3a(1) and possession of burglary tools, N.J.S.A. 2C:5-5a was dismissed.
On appeal defendant argues:
BECAUSE DRAGGING A POWER WASHER DOES NOT PROVIDE SUFFICIENT JUSTIFICATION FOR CONDUCTING AN INVESTIGATORY STOP, THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED. COUNSEL'S FAILURE TO CHALLENGE THE STOP CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW)
A. THE TRIAL COURT, SUA SPONTE, SHOULD HAVE HELD A TESTIMONIAL HEARING ON THE MOTION TO SUPPRESS.
B. MOTION COUNSEL'S FAILURE TO CHALLENGE THE LEGALITY OF THE INVESTIGATORY STOP CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
THE TRIAL COURT ERRED IN DENYING THE DEFENSE APPLICATION FOR A MISTRIAL FOLLOWING TESTIMONY SUGGESTING THAT MR. GRATACOS HAD A PRIOR CRIMINAL RECORD AND IRRELEVANT TESTIMONY THAT HE SPEWED PROFANITIES AND DEROGATORY TERMS AT A POLICE OFFICER WHEN HE WAS IN CUSTODY.
A. PITTS'S TESTIMONY CREATED A STRONG INFERENCE THAT MR. GRATACOS WAS A HABITUAL CRIMINAL OFFENDER, AND WAS INCAPABLE OF BEING CURED BY CURATIVE INSTRUCTIONS.
B. EVIDENCE THAT MR. GRATACOS UTTERED PROFANITIES AT PITTS WAS UNRELATED TO ANY FACTS IN DISPUTE AND UNDULY PREJUDICIAL.
C. THE ADMISSION OF EVIDENCE OF RACIAL ANIMUS AND FREQUENT INTERACTION WITH LAW ENFORCEMENT WARRANTED A MISTRIAL.
DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE AND IN IMPOSING THE SENTENCE, THE TRIAL COURT ERRED BY TAKING INTO CONSIDERATION FACTS NOT FOUND BY THE JURY AND DOUBLE COUNTING AN ELEMENT OF THE OFFENSE OF THROWING BODILY FLUIDS.
We are not persuaded and conclude no error warrants a new trial or modification of defendant's sentence. Accordingly, we affirm.
The State's evidence at trial included testimony from arresting officer Detective David Pitts and theft victims Brian Alger and Carla Cruz Anders. Defendant testified on his own behalf.
Immediately before trial, the court held a hearing to determine the admissibility of statements made by defendant when initially stopped by police and physical evidence discovered after his arrest. Detective Pitts was the sole witness. The motion to suppress was denied.
The jury was presented with the following facts. On November 25, 2008, at approximately 5:15 p.m., Detective Pitts, while driving an unmarked police car, saw defendant headed westbound on West Westfield Avenue in Roselle Park, "dragging" a red power washer "behind him." Defendant held the handle of the power washer and "was dragging the actual washer apparatus approximately 20 feet behind him." Finding the manner in which defendant was yanking the equipment suspicious, Detective Pitts exited his vehicle. As he approached, he recognized defendant from the neighborhood and asked him what he was doing dragging the power washer and who owned the machine. Defendant responded he found the power washer at the Walnut Street Bridge. When asked a second time about where he got the power washer, defendant stated it belonged to him and he had a receipt at home.
Detective Pitts called police headquarters and learned warrants for defendant's arrest were outstanding. He arrested defendant and patted him down. In the search, Detective Pitts found a checkbook in defendant's right front jacket pocket, titled "in another . . . person's name . . . that . . . had the heavy odor of smoke . . . like smoke from a fire scene." He then noticed defendant's hands and boots were covered in black ash. Detective Pitts knew there had been a fire at Costa's Italian Restaurant and Pizzeria (Costa's), located "about a block and a half away from where [he] initially observed [defendant] dragging the power washer, and [he] surmised that that might have been where it came from."
After taking defendant to headquarters, Detective Pitts went to speak to Alger, one of Costa's owners, who went to a rear storage trailer to check on his power washer. When he returned from the shed, Detective Pitts showed him the machine in the trunk of the police car. During trial, Alger stated the power washer in the police car was taken from Costa's property. He also identified the machine from photographs admitted into evidence. Detective Pitts also located Anders, who identified her checkbook, explaining she had left it in her apartment when she vacated the residence located above Costa's, after it was engulfed in the fire.
Detective Pitts returned to headquarters to complete his report and noticed defendant had stripped off his clothes and was acting out. He entered the holding room to calm defendant, who uttered profanities and slurs, then spit "maybe six or seven times" toward the officer.
Defendant testified and explained he was carrying the power washer as he walked to his girlfriend's home in Roselle Park when stopped by Detective Pitts. Defendant testified he purchased the machine from a flea market the prior month and used the machine when doing construction work. On the day he was arrested, he had taken the bus from his friend's home in Elizabeth where they power washed a garage.
Defendant acknowledged he did not fully stop when first approached, then Detective Pitts said "whoa," identified himself, and showed his badge. Defendant was told not to move and when he tried to leave, Detective Pitts told him to put the power washer down.
Defendant refuted Detective Pitts assertion that he claimed he found the power washer at the Walnut Street Bridge. Further, he denied entering Costa's property, asserted he never saw the storage trailer, and claimed he did not have soot on his shoes. In discussing the checkbook, defendant stated he had just found it at the Locust Street Bridge as he walked to his girlfriend's home and intended to drop it into a mailbox. Defendant also stated he did not see Detective Pitts much after the arrest and affirmatively maintained he never yelled, used profanity, cursed or spit at him.
The jury returned its unanimous verdict on the three charges. At the State's request, the disorderly persons charges in a companion municipal complaint were dismissed.
Defendant first challenges the investigatory stop, arguing Detective Pitts had no reasonable, articulable suspicion to support a belief he had engaged in criminal activity. Defendant argues the trial court erred in refusing to suppress the evidence. We disagree.
In our limited review of a determination of a motion to suppress evidence, State v. Handy, 206 N.J. 39, 44 (2011), we consider the trial court's underlying factual findings to which we defer "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks and citations omitted). Such factual determinations will not be disturbed, even if an opportunity for independent review could lead to a different conclusion. State v. Johnson, 42 N.J. 146, 162 (1964). However, the trial court's legal conclusions regarding whether established facts warrant the grant or denial of a suppression motion are subject to de novo review. Handy, supra, 206 N.J. at 45. "When a question of law is at stake," appellate review is plenary. State v. Mann, 203 N.J. 328, 337 (2010).
The United States and New Jersey Constitutions protect citizens against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Generally, all police searches and seizures unsupported by a warrant violate constitutional protections unless the totality of the circumstances fall within a recognized exception to the warrant requirement. See State v. Sullivan, 169 N.J. 204, 210 (2001); State v. Cooke, 163 N.J. 657, 664 (2000); see also Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290, 298-99 (1978). The same is true of a warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). The State has the burden of proving the validity of its actions. State v. Moore, 181 N.J. 40, 44-45 (2004).
The seizure of a person occurs in a police encounter if the facts objectively indicate that "'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). In applying that test, our courts implement constitutional guarantees to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects.'" Id. at 165 (quoting N.J. Const. art. I, ¶ 7).
In State v. Pineiro, 181 N.J. 13, 20 (2004), the Supreme Court defined a field inquiry as "the least intrusive encounter," occurring when a police officer approaches a person and asks if he or she is willing to answer some questions. "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). During such a field inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).
An investigatory stop, unlike a field inquiry, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002). In such an instance, the stop must be supported by "a reasonable and particularized suspicion to believe that an individual has just engaged in, or is about to engage in, criminal activity." Maryland, supra, 167 N.J. at 487. Accord State v. Williams, 410 N.J. Super. 549, 554 (App. Div. 2009) (citing Tucker, supra, 136 N.J. at 166), certif. denied, 201 N.J. 440 (2010).
Determining whether the totality of the circumstances supports a reasonable and articulable suspicion requires a fact-intensive inquiry of whether "'specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Mann, supra, 203 N.J. at 338 (quoting Pineiro, supra, 181 N.J. at 20). "In evaluating the facts giving rise to the officer's suspicion of criminal activity, courts are to give weight to 'the officer's knowledge and experience' as well as 'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's experience.'" State v. Richards, 351 N.J. Super. 289, 299-300 (App. Div. 2002) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)).
Suspicion is reasonable when "it is based on 'some objective manifestation that the person [detained] is, or is about to be engaged in criminal activity.'" Williams, supra, 410 N.J. Super. at 555 (alteration in original) (quoting Pineiro, supra, 181 N.J. at 22). See also. State v. Davis, 104 N.J. 490, 505 (1986) (explaining the articulable suspicion standard prevents police detentions based on subjective hunches); State v. Kuhn, 213 N.J. Super. 275, 281 (App. Div. 1986) (explaining race is not a factor upon which articulable suspicion may be founded). "[T]he fact that a suspect's behavior may be consistent with innocent behavior does not control the analysis." Mann, supra, 203 N.J. at 338 (citing Arthur, supra, 149 N.J. at 11-12). Although a reasonable and articulable suspicion may be based on facts that, standing alone, would not be sufficient to procure a conviction for the suspected offense or offenses, a mere hunch suspecting a person has engaged in criminal activity or may do so in the near future is insufficient and not an articulable suspicion. State v. Heisler, 422 N.J. Super. 399, 413 (App. Div. 2011) (citing State v. Williamson, 138 N.J. 302, 304 (1994)).
Defendant challenges the trial judge's findings, arguing defendant's encounter with Detective Pitts was not a field inquiry but an investigative stop. Our review of the record refutes this contention.
Detective Pitts approached defendant asking him to stop and answer questions because he was man-handling the power washer by dragging the mechanism down the street. While this conduct was unusual and suspicious, defendant's inconsistent responses heightened suspicion that defendant was engaged in illicit conduct.
Evaluating "'the totality of circumstances surrounding the police-citizen encounter, balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions[,]'" Privott, supra, 203 N.J. at 25-26 (quoting Davis, supra, 104 N.J. at 504), we conclude Detective Pitts' questions regarding the power washer were part of a field inquiry prompted by what the officer observed. When Detective Pitts recognized defendant and asked him a second time where the power washer came from, defendant's inconsistent responses reasonably raised suspicion requiring a broader inquiry and his detention while a warrant check was made. State v. Baum, 199 N.J. 407, 424 (2009). The evidence, "when interpreted in an objectively reasonable manner, shows that the encounter was preceded by activity that would lead a reasonable police officer to have an articulable suspicion that criminal activity had occurred or would shortly occur." Davis, supra, 104 N.J. at 505. Thereafter, the check revealing outstanding warrants ensured defendant's arrest. State v. Jones, 143 N.J. 4, 14 (1995).
In a related challenge, defendant argues counsel's failure to challenge the legality of the stop constituted ineffective assistance of counsel. We reject this contention.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.
Based upon our analysis of the stop, defendant fails to meet the second Strickland prong, as he cannot show he suffered prejudice resulting from counsel's failure to seek an evidentiary hearing. "Unless both parts of the [Strickland] test are established, defendant's claim must fail." State v. Echols, 199 N.J. 344, 358 (2009).
Defendant next argues the trial judge erred in denying his request for a mistrial. In his request for a mistrial, defendant cited as prejudicial, Detective Pitts' comments (1) that he knew defendant; (2) that he retrieved some of defendant's pedigree information from records at the station; and (3) reciting a profane racial slur, which he attributed to defendant while in custody. He contends the trial judge abused her discretion when she denied the motion. We disagree.
"A motion for a mistrial is addressed to the sound discretion of the court; and the denial of the motion is reviewable only for an abuse of discretion." State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). "Unless the vice is plainly ineradicable by an instruction to the jury, a mistrial is not allowable of right." Ibid. "A mistrial is an extraordinary remedy" that should be employed "[o]nly when there has been an obvious failure of justice[.]" State v. Mance, 300 N.J. Super. 37, 57 (App. Div. 1997). "Whether manifest necessity mandates the grant of a mistrial depends on the specific facts of the case and the sound discretion of the court." State v. Allah, 170 N.J. 269, 280 (2002) (citing State v. Loyal, 164 N.J. 418, 435 (2000)). When "the court has an appropriate alternative course of action[,]" it should deny a request for a mistrial. Id. at 281 (citing Loyal, supra, 164 N.J. at 436-37).
Here, when describing the encounter with defendant Detective Pitts stated: "As soon as I approached him, I knew who he was. I had dealt with him in the past[.]" The statement immediately drew an objection, which the court sustained. The trial judge then instructed the jury and said: "Ladies and gentlemen, disregard that last comment of the officer. It's totally irrelevant. You have to just strike it from your minds and don't speculate on it, okay." The court's response was properly measured to ameliorate the objectionable comments, which were found innocuous and fleeting. Individually or collectively, the remarks in no way conveyed an impression to the jury that defendant was a "local menace" as he suggests.
Moreover, following a sidebar, it was agreed that Detective Pitts would state he "had prior good contact with defendant." The trial judge, without objection by the State, offered to issue a curative instruction, but defendant declined. We conclude the court's response and alternative suggestions fairly addressed the possible prejudicial effect of the fleeting comments. "[W]e trust juries to follow instructions." State v. Short, 131 N.J. 47, 65 (1993).
The third comment regarding the racial slur was prejudicial, as is all evidence submitted by the State; however, it was relevant because it reflected defendant's state of mind when spitting at Detective Pitts. We agree the inclusion of the unprovoked spontaneous utterance by defendant was not a necessary part of the State's proofs, but conclude its inclusion did not unduly influence the jury's finding of guilt or cause a manifest injustice. Accordingly, the trial judge properly exercised her reasoned discretion in denying the motion for a mistrial.
Defendant's final point challenges the sentence imposed as excessive. He maintains the trial judge inappropriately balanced the aggravating and mitigating factors when fixing the term and, given the range of sentence for a third-degree offense, she abused her discretion by imposing a term greater than the minimum of three years. Defendant also argues the judge incorrectly double counted by including aggravating factor eight in the sentence on count three.
We reject the suggestion that the sentences imposed for burglary and theft were excessive. We do agree the trial judge incorrectly included aggravating factor eight when imposing the concurrent sentence for the fourth-degree offense in count three, and we remand to correct the judgment of conviction. Nevertheless, the imposition of a minimum term obviates any need for resentencing.
An appellate court's role in reviewing a sentence on appeal is limited. We reinforced the standards governing our review in State v. Lawless, 423 N.J. Super. 293, 299 (App. Div. 2011), leave to appeal granted, 209 N.J. 230 (2012):
So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, the reviewing court must affirm the defendant's sentence. [State v. Jabbour, 118 N.J. 1, 6 (1990); State v. O'Donnell, 117 N.J. 210, 215 (1989)]. In other words, unless the sentencing court was "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shocks the judicial conscience," [State v. Roth, 95 N.J. 334, 365 (1984)], an appellate court is bound to affirm. See O'Donnell, supra, 117 N.J. 215; cf. State v. Dunbar, 108 N.J. 80, 83 (1987) (sentence within statutory guidelines may strike reviewing court as harsh, but that is a consequence of the legislative scheme and not error by trial court).
Trial judges who follow this procedure, "need fear no second-guessing." State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotation marks omitted).
Prior to imposing the sentence, the trial judge found four aggravating factors: the risk defendant will commit another offense, N.J.S.A. 2C:44-1a(3), given his thirty-year criminal history; the extent and seriousness of the defendant's prior criminal record N.J.S.A. 2C:44-1a(6), which included six prior indictable offenses and twenty-nine disorderly persons offenses; and the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). As to count three the court also found aggravating factor eight applicable, N.J.S.A. 2C:44-1a(8), that the offense was against a police officer, as defendant spit at Detective Pitts. The trial judge found two applicable mitigating factors, concluding defendant's conduct did not cause serious harm, N.J.S.A. 2C:44-1b(1), noting the offenses were "not among the more serious [offenses] in the criminal justice system" and that he did not contemplate serious harm N.J.S.A. 2C:44-1b(2), stating "perhaps you did think that nobody really was using this [power washer]."
Defendant argues the aggravating and mitigating factors are in equipoise warranting a three-year term. We disagree, as the court's sentencing opinion reflects the gravity afforded defendant's extended criminal conduct over three decades, stating "[y]ou started becoming a general public nuisance [in 1980] and you never stopped[,]" and noting he was "a menace." Further, defendant's propensity for recidivism was clear and the trial judge noted "I'm sure as soon as you get out you're just going to do something again." These factors were weighed more heavily than the applicable mitigating factors even though the offense "was stupid" and no one got hurt. The trial judge's conclusions resulting in the sentence for counts one and two will not be disturbed. Bieniek, supra, 200 N.J. at 607-08.
Regarding the sentence for count three, the trial judge incorrectly imposed aggravating factor eight, that the offense was committed against a police officer. That specific factor is an element of the offense raising it from a disorderly persons offense to a crime of the fourth degree. N.J.S.A. 20:12-13. The inclusion of aggravating factor eight was error as it double counted this fact. We do not need to vacate the sentence as it was the minimum for the offense and its imposition is supported by the remaining aggravating and mitigating factors.
Defendant's convictions are affirmed. We remand for the sole purpose of correcting the judgment of conviction to eliminate aggravating factor eight, N.J.S.A. 20:44-1a(8), otherwise the sentences imposed are affirmed.