Opinion
DOCKET NO. A-6014-12T3
07-20-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALEX S. GANTT, a/k/a MARTIN FRASER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Ashrafi. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-06-1015. Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Alex Gantt appeals from his conviction by guilty plea following the denial of his motion to suppress evidence, see R. 3:5-7(d), and also from his fifteen-year sentence of imprisonment. We affirm, except that we remand for correction of jail time credit on one of the two judgments of conviction.
Defendant was arrested twice in the same week and charged each time with major drug dealing offenses. The charges were the product of a court-authorized wiretap investigation of defendant and others.
Based on information gathered through the wiretap, county narcotics investigators executed a search warrant for defendant's home in Howell on May 2, 2008. They recovered almost an ounce of cocaine inside the home and about $47,000 in cash from defendant's car. Defendant was arrested and charged. He was released on bail the same night.
Three days later, on May 5, 2008, the investigators intercepted further communications from defendant's cell phone that revealed his intent to travel to New York City to obtain a supply of cocaine. The investigators determined that defendant would be returning to his home driving a white Mercedes and another person named Hiram Cotto would be driving to defendant's home with illegal drugs in a red Land Rover. It also appeared from the intercepted conversations that the drugs would be distributed immediately to other persons.
Defendant was waiting in his driveway as Cotto arrived at the home shortly before 11:00 a.m. on May 5, 2008. A uniformed detective in a marked police car pulled into the driveway and identified himself as the police. Cotto got out of the Land Rover holding a plastic bag and ran into the garage. The detective followed him, ducking under the closing garage door to get inside. Cotto then ran up steps and into the house, closing the house door behind him. The detective and other police officers broke open the door and entered the home. They found Cotto hiding in the house and arrested him. They also detained defendant and others who were in the house.
The investigators then made a telephone application for a search warrant for the house and cars. They executed the warrant later that afternoon. They recovered a total of more than 900 grams of cocaine from three locations in and near the house and garage. They also recovered a scale and drug packaging items, and some cash from defendant. Defendant was charged, this time remaining in custody on higher bail until September 21, 2009, at which time he apparently posted bail and was released from custody.
Several months after his second arrest, while defendant remained incarcerated on the May 5 charges, a judge issued an arrest warrant for defendant based on his violation of the terms of his release on his earlier May 2 charge. Pertinent to the jail time credit issue, that arrest warrant was officially executed on April 28, 2009.
On May 27, 2009, an Ocean County grand jury returned indictment number 09-05-0948 charging defendant and several others with second-degree conspiracy, N.J.S.A. 2C:5-2, to distribute and to possess with intent to distribute more than five ounces of cocaine, N.J.S.A. 2C:35-5(a), (b)(1). That indictment was based on the wiretap evidence gathered from March 26 through April 17, 2008, and arose from the May 2 arrest.
On June 3, 2009, the same grand jury returned a seven-count indictment, number 09-06-1015, charging defendant in six of the counts with first and second-degree narcotics offenses committed from April 18 through May 5, 2008.
Defendant and his co-defendants moved to suppress the 900 grams of cocaine and other evidence seized on May 5, 2008. They alleged that the initial warrantless police entry into defendant's garage and home violated their federal and State constitutional rights. After considering the parties' briefs and oral arguments, the trial court denied the motion without holding an evidentiary hearing. The court issued a written decision in which it found that the police had probable cause to believe evidence of narcotics offenses was located in defendant's home, and that exigent circumstances justified their initial warrantless entry to secure the evidence and persons inside the home until the police could obtain a search warrant.
On November 29, 2012, defendant entered pleas of guilty to the second-degree conspiracy charge of indictment 09-05-0948, N.J.S.A. 2C:5-2, and to first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(2), as charged in count four of indictment 09-06-1015. In the plea agreement, the State agreed to dismiss all other charges and to recommend a sentence of fifteen years imprisonment with seven years to be served without parole eligibility on the first-degree charge, and a concurrent sentence of seven years imprisonment on the second-degree charge. In addition, the State would recommend imposition of a $200,000 monetary penalty in accordance with the applicable sentencing statute. Defendant was sentenced in conformity with the State's recommendations on May 1, 2013.
On appeal, defendant argues:
POINT I
MR. GANTT IS ENTITLED TO A TESTIMONIAL HEARING ON THE SUPPRESSION ISSUE AS MATERIAL FACTS ARE IN DISPUTE AND THE DENIAL OF SUCH A HEARING DENIED HIM HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
POINT II
A REMAND IS NECESSARY TO DETERMINE IF MR. GANTT SHOULD RECEIVE ADDITIONAL JAIL CREDITS UNDER THE NEWLY DECIDED COMPANION CASES OF STATE V. HERNANDEZ AND STATE V. ROSE.
POINT III
MR. GANTT'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
We reject defendant's argument on the suppression issue essentially for the reasons stated in the October 23, 2011 written opinion of Judge Wendel Daniels. We add just a few comments about the warrantless police entry and resulting seizure of evidence pursuant to a warrant.
Defendant does not argue that the State lacked probable cause to obtain a search warrant for his home. Nor does he claim that the suppression motion had any effect on the separate second-degree charge contained in indictment number 09-05-0948 and the seven-year sentence imposed on that indictment. His only argument is that he was entitled to an evidentiary hearing because there was a disputed issue of fact as to how the police gained entry into the home. While the State simply stated that the investigators followed Cotto as he ran from the garage into the home, defendant urges that Cotto locked the door behind him as he entered the home and the police broke down the door. He claims the breaking down of the door was unreasonable police conduct that violated his Fourth Amendment and State constitutional rights.
As Judge Daniels concluded, however, exigent circumstances justified the immediate police entry into the home without a warrant and with the use of force. Because there was ample evidence through the wiretap and through the police observation of Cotto's conduct that supported an objective belief that Cotto was carrying a large quantity of drugs and would have the opportunity to destroy the evidence unless it was immediately seized, the police could enter the home without a warrant to secure Cotto and the cocaine evidence. See Kentucky v. King, ___ U.S. ___, ___, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865, 875 (2011); United States v. Santana, 427 U.S. 38, 40-43, 96 S. Ct. 2406, 2408-10, 49 L. Ed. 2d 300, 304-06 (1976); State v. Walker, 213 N.J. 281, 292 (2013); State v. Hutchins, 116 N.J. 457, 464 (1989). Furthermore, when armed with probable cause the police may secure a home while a warrant is sought. Segura v. United States, 468 U.S. 796, 810, 104 S. Ct. 3380, 3388, 82 L. Ed. 2d 599, 612 (1984).
We also reject defendant's contention that the police created the exigency. See King, supra, ___ U.S. at ___, ___, 131 S. Ct. at 1854, 1858-62, 179 L. Ed. 2d at 872, 876-81. "[P]olice-created exigent circumstances, particularly where the officers' conduct was unreasonable or unnecessary, would not justify a warrantless entry." Hutchins, supra, 116 N.J. at 468- 69. Here, the exigency arose "naturally . . . in the course of an appropriate police investigation." Id. at 470. In addition to the justification provided by Cotto's flight into the house carrying the drugs, the police were aware that defendant maintained video surveillance cameras outside his house, thus making it unlikely that the police could covertly stake out the house while applying for a search warrant.
The breaking down of the door from the garage into the house was also not unreasonable police conduct under the circumstances. In State v. Josey, 290 N.J. Super. 17, 22-23 (App. Div.), certif. denied, 146 N.J. 497 (1996), officers observed the defendant selling drugs on the street outside his house. An officer called for backup to arrest the defendant and a co-defendant. Id. at 23. The defendant then retreated into his home, and the officer followed, breaking the door down and entering. Ibid. The officer struggled with the defendant, who tried to "dump a plastic bag with white powder . . . [into] a sink." Ibid. (alteration in original). Other drugs were seen in plain view. Ibid. The defendant was arrested, and police obtained a search warrant for the house. Ibid.
We held the officers acted properly and under exigent circumstances. Id. at 30. Upon observing the drug transaction, officers had probable cause to arrest the defendant. Ibid. "Pursuing him into his apartment was plainly justified in order to . . . prevent the likely destruction of evidence." Ibid. Similarly in this case, the police could force their way into defendant's home because of the urgency of the circumstances when Cotto fled there with a bag believed to contain a large quantity of cocaine.
Finally, an evidentiary hearing was not necessary because there were no material facts in dispute that could affect the outcome of the suppression hearing. See State v. Kadonsky, 288 N.J. Super. 41, 46 (App. Div.), certif. denied, 144 N.J. 589 (1996). Assuming that Cotto locked the door and the detectives broke it down to gain entry, the police conduct was still reasonable under the circumstances and hence not a violation of defendant's constitutional rights.
As to the length of the fifteen-year sentence with seven years of parole ineligibility, defendant pleaded guilty to a first-degree charge that required a sentence within the range of ten to twenty years imprisonment. N.J.S.A. 2C:43-6(a)(1). Because of a prior conviction on a similar drug dealing offense, he was subject to mandatory extended term sentence, N.J.S.A. 2C:43-6(f), but, in keeping with its plea agreement, the State did not move for imposition of an extended term. The court acted within its discretionary authority when it imposed the fifteen-year sentence as provided in the plea agreement.
Furthermore, based on defendant's record of five prior indictable convictions, the court found that aggravating factors three, six, and nine applied, N.J.S.A. 2C:44-1(a)(3), (6), (9), and that the court was clearly convinced those aggravating factors substantially outweighed the non-existent mitigating factors, thus justifying a period of parole ineligibility. N.J.S.A. 2C:43-6(b). We find insufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), in defendant's argument that he was entitled to a finding of mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), excessive hardship to him and his family.
Finally, although it is unlikely to make any difference in the amount of time that defendant will be required to serve in prison, it does appear that he was entitled to more jail time credit on his conviction for the second-degree charge arising from the May 2, 2008 arrest than he received. Under State v. Hernandez, 208 N.J. 24, 47-50 (2011), defendant was entitled to jail time credit on indictment 09-05-0948 from the time of his arrest on May 5, 2008, until his release from custody on September 21, 2009.
We affirm defendant's conviction and sentence but remand for correction of the amount of jail time credit awarded on indictment number 09-05-0948. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION