Opinion
DOCKET NO. A-5794-08T2
01-26-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RANDY CLAY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Waugh.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County,
Indictment No. 07-08-1104.
Joseph E. Krakora, Public Defender, attorney
for appellant (Diane Toscano, Assistant
Deputy Public Defender, of counsel and on
the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh,
Senior Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Randy Clay appeals from the denial of two motions preceding his conviction based upon entry of a guilty plea. He first sought to suppress evidence obtained in the execution of a search warrant without the benefit of an evidentiary hearing. His second motion sought discovery of the surveillance location used by police affiants, whose observations were the basis of the search warrant requests. In support of his request to reverse his conviction for various drug offenses, defendant combines these arguments in a single point, arguing:
THE DEFENDANT WAS DEPRIVED OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO CONFRONTATION AND DUE PROCESS WHEN THE COURT RULED THAT THE STATE DID NOT HAVE TO ADEQUATELY DISCLOSE THE SURVEILLANCE LOCATION FROM WHICH THE POLICE VIEWED THE ACTIVITIES THAT LED TO THE ISSUANCE OF SEARCH WARRANTS AND TO HIS ARREST, OR TO REVEAL ANY DOCUMENTATION SUPPORTING THE USE OF A NARCOTICS BUY FUND. U.S. CONST. AMENDS[.] VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 AND 10.We are not persuaded and affirm.
On June 11, 2007 two no-knock warrants were executed for the search of two identified locations: a first-floor apartment on Bergen Street and a first-floor apartment on North 8th Street, both in Paterson. Two additional warrants provided for the search of a 2000 red Chrysler 300, identified by its license plate and vehicle identification number, and for defendant's person. Accompanying the warrant application were the sworn statements of Paterson Police Detectives Edgar Taylor and Ronald Altmann.
These facts were attested to in support of the search warrant requests. Detectives Taylor and Altmann received information related by Detective Lieutenant Humphrey, who had conferred with a previously reliable confidential informant (CI). The CI provided a physical description of a man whom he called "Complete," who he asserted was selling cocaine at a described Bergen Street address.
Detectives Taylor and Altmann set up a surveillance location with an unobstructed view, approximately 175-200 feet from the Bergen Street residence. They saw a man sitting on the front steps matching the physical description of Complete given by the CI. The man was later identified as defendant. The detectives observed an unidentified African-American male approach defendant, briefly speak to him, and hand him what appeared to be paper currency. Defendant entered the Bergen Street residence and returned to the steps after about one minute. The detectives saw defendant drop "unknown items" into the male's hand, at which time the unidentified African American man left the area. The officers believed they had witnessed a hand-to-hand drug transaction. They watched several similar transactions until defendant left the steps, walked twenty feet, entered a red 2000 Chrysler 300, and drove to the North 8th Street address and parked.
Detective Altmann engaged a second CI to make a "controlled drug buy" from defendant. The second CI was searched, found to be free of money or contraband, and given money for the narcotics purchase. Detective Taylor located defendant at the North 8th Street address and followed him until he entered the Bergen Street address.
Detective Altmann observed the second CI approach the Bergen Street residence and speak to defendant, who was then sitting on the front steps. After the brief interaction, defendant walked into the residence, returned approximately thirty seconds later, and handed the CI a small object in exchange for money. Immediately thereafter, this CI met Detective Altmann at a prearranged location. Detective Altmann continuously observed the CI until they met. The CI handed Detective Altmann the item purchased from defendant, which a field test confirmed was crack cocaine. The detectives scheduled a second controlled buy with another CI, repeating the process followed in the prior controlled buy. Again, a field test of the substance purchased from defendant by the CI revealed it contained cocaine.
Using motor vehicle records, the detectives confirmed defendant had received a ticket while driving the red 2000 Chrysler 300. They also checked police records and located a photograph and verified defendant's identity.
On June 11, 2002, a Paterson municipal court judge issued the described no-knock warrants and police executed them the same day. The search recovered 77 grams of loose cocaine, 423 plastic baggies containing crack cocaine, material and equipment consistent with the packaging of controlled dangerous substances (CDS), a high-powered air gun, and a bow and arrows.
Defendant was charged in a thirteen count indictment with numerous CDS and weapons offenses. Challenging the veracity of the information contained in the warrants' supporting affidavits, defendant filed motions to suppress the evidence seized pursuant to the search warrants because of the State's failure to disclose the surveillance location and the details regarding the officer's request for drug buy funds used by the CIs to purchase narcotics. The State opposed the motions.
During oral argument, the prosecutor asserted the State's interest in maintaining the surveillance location. However, he voluntarily disclosed certain details to aid defendant's challenge to the officers' asserted observations. The prosecutor noted the location was mobile, as the police utilized a vehicle, and located on
a dead end street, 175 to 200 feet away from [the] Bergen [Street address.] It is closer to the river on the dead end street . . . . The location . . . was diagonal, it was across the street. They used a vehicle and were able to maintain surveillance with
their naked [eyes] and use of binoculars from time to time.
As to the drug buy fund log, the State disclosed the week and month of the transaction, but declined to release copies of the log entries as they included the CIs' numbers along with the exact date, time, and amount of the purchases. The State argued revelation of these facts would jeopardize the safety of the CI who continued to work with the police in making drug purchases.
The court permitted defendant the opportunity to review the information in light of defendant's Bergen Street residence and the motions were continued. When oral argument recommenced, defendant insisted the information provided was too general and insufficient to determine whether the detectives' view was unobstructed, precluding an effective challenge to the search warrants. After considering the arguments presented, the motion judge denied defendant's application to reveal additional information regarding the surveillance location or the drug buy fund. The court also denied the motion to suppress.
Defendant plead guilty to two counts in the indictment, specifically, second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), b(2) (count two), and possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 and 2C:35-5a (count three). A different Criminal Part judge merged count three into count two and sentenced defendant to a custodial sentence of nine years with a four and one-half year period of parole ineligibility. This appeal ensued.
Defendant challenges the denial of his suppression motion. See R. 3:5-7(d) (permitting appeal from denial of motion to suppress evidence, despite subsequent conviction following guilty plea); see also State v. Greeley, 178 N.J. 38, 50-51 (2003) (holding "motions for suppression on the grounds of unlawful search and seizure automatically survive the entry of a guilty plea"). In the same application, defendant also challenges the denial of his motions for disclosure of the surveillance location and drug buy fund log.
When reviewing a challenge to the validity of a search warrant, we note "[t]here is . . . a presumption of validity with respect to the affidavit supporting the search warrant." Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667, 682 (1978). Defendant has presented nothing other than sheer conjecture to support allegations of deliberate fabrication or reckless disregard for the truth contained in the detectives' affidavits submitted to the municipal court judge who issued the warrant. Far more is required before a court will entertain a claim challenging the validity of a warrant based on sworn affidavits submitted to an impartial judge, that establish on its face legally sufficient probable cause. See State v. Howery, 80 N.J. 563, 567-68 (holding that a defendant challenging the validity of affidavits supporting a warrant must show "a deliberate falsehood or reckless disregard for the truth," of material facts defeating the establishment of probable cause, including "pointing out with specificity the portions of the warrant . . . claimed to be untrue" and support the claim with "an offer of proof including reliable statements by witnesses"), cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).
We conclude the warrant was properly based upon the officers' affidavits, which provided sufficient probable cause that a crime had been committed and supported the issuance of the search warrants. See State v. Keyes, 184 N.J. 541, 553 (2005) (holding search warrants must be based on information "to enable a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe a search would yield evidence of past or present criminal activity"). Further, the search was properly conducted pursuant to the terms of the warrant. Accordingly, we reject defendant's claims seeking to suppress the results of the search.
Turning to the added argument on appeal, defendant asserts the denial of his motions resulted in the deprivation of his constitutional right to confront witnesses. This argument also provides no basis for relief.
"'Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.'" State v. Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149 N.J. 310, 316 (1997)). In Knight, supra, the Supreme Court reiterated:
"When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." [Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)]. Included within those constitutional rights that are deemed waived after entering an unconditional guilty plea are "the privilege against compulsory self-incrimination, the right to trial by jury, the right to confront one's accusers, and the right to a speedy trial." Crawley, supra, 149 N.J. at 316[.]
[183 N.J. at 470.]
Because defendant's guilty plea was not conditional, the challenge presented on appeal has been waived. R. 3:9-3(f) (allowing the use of conditional pleas); see also Knight, supra, 183 N.J. at 470 (holding "that by entering an unconditional guilty plea, a defendant waived his right to challenge the admissibility of his . . . confession").
For completeness, we will address the arguments of asserted error in the denial of the motions for disclosure of the surveillance location and drug buy fund log entries. Defendant's arguments are premised on the guarantee found in both the federal and New Jersey constitutions affording criminal defendants the right to "be confronted with the witnesses against them." U.S. Const. amend VI; N.J. Const. art. 1, para. 10. The confrontation principle assures a defendant the opportunity to seek "favorable testimony on cross-examination of the [S]tate's witnesses." State v. Budis, 125 N.J. 519, 531 (1991). "[T]he scope of cross-examination is a matter for the control of the trial court[,]" State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334 (1990), which has the authority to exclude testimony where fairness and reliability are in question. See Budis, supra, 125 N.J. at 531-32 (stating courts may exclude "evidence helpful to the defense . . . [in] interests of fairness and reliability"). We will not interfere with a trial court's reasonable exercise of control "unless clear error and prejudice are shown." Murray, supra, 240 N.J. Super. at 394. Review of a defendant's request for disclosure of a surveillance location is guided by N.J.S.A. 2A:84A-27 and N.J.R.E. 515, adopted following the Supreme Court's decision in State v. Garcia, 131 N.J. 67 (1993). In Garcia, the Supreme Court held "a surveillance location falls within the type of information that a court may conceal in the public interest." Id. at 73. Both N.J.R.E. 515 and N.J.S.A. 2A:84A-27 state:
No person shall disclose official information of this State or of the United States (a) if disclosure is forbidden by or pursuant to any Act of Congress or of this State, or (b) if the judge finds that disclosure of the information in the action will be harmful to the interests of the public.
When confronted with a defendant's request for disclosure, the Supreme Court has instructed that "the State must make a preliminary showing that disclosure of the surveillance location would harm the public interests and should therefore remain privileged." State v. Zenquis, 131 N.J. 84, 88 (1993). The State's demonstration must include "a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property." Garcia, supra, 131 N.J. at 78. Thereafter, the defendant overcomes the privilege by making "a substantial showing of need." Id . at 81. This court performs a balancing of "defendant's need for that information with the public's interest in nondisclosure." Zenquis, supra, 131 N.J. at 88. In its review, the trial court "must consider the crime charged, the possible defenses, the potential significance of the privileged information, and other relevant factors." Ibid.
Our consideration of this issue on appeal is limited. Ibid. "The trial court's determination should be overturned only if the record discloses a mistaken exercise of discretion in the application of the relevant factors." Ibid.
Even when the State is afforded the benefit of the official information privilege, a defendant is entitled "to inquire about certain important facts" regarding the surveillance to help the jury "critically examine testimony, while also serving the State's need for confidentiality." Garcia, supra, 131 N.J. at 81. These facts would include "the distance from which the observation was made," whether the witness used any vision-enhancing articles, whether the observations were made from an elevated position, and information about the witness's line and angle of sight. Id . at 81-82.
According to the State, the site area near the Bergen Street address was known for narcotics activity, the officers' conducted their surveillance in broad daylight, from a vehicle allowing an unobstructed view, and with only an occasional need for binoculars. The police had used the location for surveillance prior to this matter, continued to do so, and did not want to compromise ongoing or future operations.
Defendant failed to articulate any substantial need for the disclosure of the surveillance location, other than a generalized assertion that it was critical to obtain corroborating evidence to challenge the veracity of the officers' observations. We discern no aid to his defense by revealing the exact make and model of vehicle used or its location. We conclude the trial judge did not abuse his discretion by excluding the precise surveillance location.
As to the drug fund buy log, we reject defendant's claims of error as lacking merit. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by the motion judge, who properly balanced the competing State interest against defendant's asserted need for disclosure, in denying the motion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION