Opinion
DOCKET NO. A-1695-13T4 DOCKET NO. A-0805-14T4
06-07-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEROY T. MOORE, a/k/a TASHON MOORE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret R. McLane, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 12-08-1199 and 13-04-0448. Joseph E. Krakora, Public Defender, attorney for appellant (Margaret R. McLane, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from an order denying his motion to suppress seized evidence and a judgment of conviction imposing an extended prison term of eight years with four years of parole ineligibility. We consolidated the two appeals by our February 10, 2015 order, and now affirm.
This case arises out of defendant's drug-related activities at two locations: 100 Roosevelt Avenue and 651 Roosevelt Avenue (100 Roosevelt and 651 Roosevelt, respectively). We derive the following facts from the search warrant affidavit.
In June 2009, a reliable confidential informant (CI) told police that, based on personal observations and conversations with defendant, defendant was distributing controlled dangerous substances (CDS) from a specific apartment at 100 Roosevelt, where he resided with two other individuals. The CI also indicated defendant kept CDS in his vehicle, a 2007 GMC Envoy (the GMC). That month, the CI completed a controlled drug transaction with defendant at 100 Roosevelt.
On August 2, 2009, the CI participated in a controlled drug transaction with one of the residents of 100 Roosevelt while defendant was sleeping in the apartment. On August 7, 2009, an undercover police officer completed a controlled drug transaction with defendant at 100 Roosevelt. On August 18, 2009, an undercover police officer completed another controlled drug transaction with defendant from the GMC.
On August 23, 2009, the CI advised police defendant now resided at 651 Roosevelt, but still distributed CDS at 100 Roosevelt. That week, police observed defendant exit 651 Roosevelt through the right front door, retrieve an object from under the building's staircase, drive the GMC to 100 Roosevelt, and then walk to the apartment where the CI completed another controlled drug transaction with defendant. Defendant later drove the GMC back to 651 Roosevelt, placed an object underneath the staircase, and entered the building through the right front door, where he earlier exited.
Police applied for and were issued a search warrant for 100 Roosevelt, 651 Roosevelt, the GMC, and defendant's person. Police executed the warrant on August 28, 2009, seized items, and arrested defendant.
A grand jury indicted and charged defendant with drug-related offenses under indictments 12-12-1823 and 12-08-1199. When defendant failed to appear in September 2012, a separate grand jury issued indictment 13-04-0448, charging, among other things, third-degree bail jumping, N.J.S.A. 2C:29-7.
Defendant does not raise any challenges related to indictment 12-12-1823, which charged one drug-related offense defendant committed in May 2009. --------
Defendant moved to suppress the evidence seized when executing the search warrant relating to indictment 12-08-1199. In October 2012, the judge denied defendant's request without a hearing.
In May 2013, defendant entered a negotiated plea agreement, pleading guilty to charges in all three indictments. Under indictment 12-12-1823, defendant pled guilty to one count of third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1). Under indictment 12-08-1199, defendant pled guilty to two counts of third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); two counts of second-degree possession of a CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1; and one count of third-degree possession of a CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. As to indictment 13-04-0448, defendant pled guilty to one count of third-degree bail jumping, N.J.S.A. 2C:29-7.
In October 2013, defendant appeared for sentencing. The sentence imposed for the conviction under indictment 12-08-1199, specifically, nine years in prison with a four-year period of parole ineligibility, was ordered to run concurrent to the three-year term imposed under indictment 12-12-1823, and to run consecutive to the eight year prison term, subject to a four-year period of parole ineligibility, imposed under indictment 13-04-0448. The judge dismissed all remaining charges. Pursuant to an agreement, in November 2013, the judge modified defendant's sentence to a five-year probationary period to permit defendant to seek inpatient substance abuse treatment.
In June 2014, defendant pled guilty to violating probation. The judge imposed the original sentence of nine years in prison with a four-year period of parole ineligibility under indictment 12-08-1199, concurrent to the three-year prison term on indictment 12-12-1823, but consecutive to the eight-year prison term with a four-year parole-ineligibility period under indictment 13-04-0448.
Defendant filed separate notices of appeal, challenging both his sentence and the denial of his motion to suppress. We transferred defendant's sentencing appeal from our excessive sentencing oral argument calendar, R. 2:9-11, and consolidated the two appeals.
On appeal, defendant raises the following arguments:
POINT I
THE SEARCH WARRANT AFFIDAVIT DID NOT PROVIDE PROBABLE CAUSE TO BELIEVE CONTRABAND WOULD BE DISCOVERED IN APARTMENT J-10, IN DEFENDANT'S CAR, OR ON DEFENDANT'S PERSON.
POINT II
BECAUSE THE SEARCH WARRANT DID NOT INCLUDE THE APARTMENT NUMBER IN A MULTI-UNIT DWELLING, THE WARRANT FAILED THE PARTICULARITY REQUIREMENT AND THE EVIDENCE DISCOVERED MUST BE SUPPRESSED.
POINT III
THE DEFENDANT'S BAIL JUMPING SENTENCE OF EIGHT YEAR[S] WITH A FOUR YEAR PAROLE DISQUALIFIER IS EXCESSIVE.
Defendant raises three additional arguments in his pro se supplemental brief, which we have renumbered to run consecutively:
POINT IV
TRIAL COURT ERRED DENYING [DEFENDANT'S] JAIL CREDITS AND GAP TIME CREDITS.
POINT V
TRIAL COURT ERRED WHEN DEN[YING] DEFENDANT[']S MOTION TO SUPPRESS THE SEARCH WARRANT WHICH FAILED TO DESCRIBE THE PLACE TO BE SEARCHED AND FOR THOSE REASONS THE CONVICTIONS MUST BE VACATED AND SEARCH WARRANT QUASHED.
POINT VI
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We first address defendant's challenges to the search warrant. Specifically, defendant contends the warrant was not supported by probable cause and lacked sufficient particularity. We disagree.
When reviewing a decision on a suppression motion, we defer to a judge's factual findings when they are supported by sufficient credible evidence. State v. Lamb, 218 N.J. 300, 313 (2014). We accord no deference to the judge's legal conclusions. State v. Coles, 218 N.J. 322, 342 (2014).
A search executed pursuant to a warrant is presumed valid; a defendant challenging its validity must prove the absence of probable cause supporting the warrant or that the search was unreasonable. State v. Jones, 179 N.J. 377, 388 (2004). Our role is to determine whether the warrant application presented sufficient evidence for a finding of probable cause to search the locations for the items sought. State v. Chippero, 201 N.J. 14, 32 (2009) (citation omitted). In making this determination, we afford "substantial deference" to the magistrate's finding of probable cause. Id. at 33 (quoting State v. Perry, 59 N.J. 383, 393 (1971)). This probable cause inquiry requires courts "to make a practical, common sense determination whether, given all of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Marshall, 199 N.J. 602, 610 (2009) (quoting State v. O'Neal, 190 N.J. 601, 612 (2007)).
Independently corroborated information from a confidential informant may provide probable cause. Jones, supra, 179 N.J. at 389 (citation omitted). Police may corroborate an informant's information through "controlled drug purchases performed on the basis of the informant's tip, [and] positive test results of narcotics obtained during a controlled purchase." Id. at 390 (citation omitted).
As to the particularity requirement, a warrant must describe the place to be searched such that an officer could identify the intended location with reasonable effort. Marshall, supra, 199 N.J. at 611 (quoting Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757, 760 (1925)); see also State v. Wright, 61 N.J. 146, 149 (1972) (explaining "pin-point precision is not demanded" (citations omitted)). "[W]hen a multi-unit building is involved, the affidavit in support of the search warrant must exclude those units for which police do not have probable cause." Ibid. (citing Maryland v. Garrison, 480 U.S. 79, 85, 107 S. Ct. 1013, 1017, 94 L. Ed. 2d 72, 81 (1987)).
We reject defendant's contention the police lacked probable cause to suspect contraband would be found at 100 Roosevelt, in his vehicle, or on his person. The search warrant affidavit related numerous controlled drug transactions between police and defendant, corroborating the CI's information that although defendant no longer resided in 100 Roosevelt, he still distributed drugs from the location. The police also corroborated the CI's tip that defendant sold drugs from his vehicle by performing a controlled drug transaction with defendant from the GMC and by observing him driving the GMC several times, including transporting items defendant maintained under the staircase at 651 Roosevelt.
We also reject defendant's argument that the warrant affidavit did not describe the place to be searched in 651 Roosevelt with sufficient particularity because it did not identify an apartment number.
The affiant supported the warrant request with photographs of the building and described the premises in detail:
651 Roosevelt Ave[.] (front right door from Roosevelt [A]ve[.]) . . . is described as a multi-family residence. 651 Roosevelt i[s] located on the corner of Leick Ave. and Roosevelt Ave. The exterior of the building on the Leick Ave[.] side and the Roosevelt Ave[.] side consists of tan colored brick. The front right door is brown in color with a white colored door frame. The brown colored door has brass colored hardware on the middle and top part of [the] door. The brown colored front right door has a black colored mail[box] on the left side. There are also two white trimmed windows to the left side of the mailbox. 651 Roosevelt Ave[.] (front right door from Roosevelt [A]ve[.]) . . . and all common areas related to 651 Roosevelt Ave[.] . . . which [defendant] has access to and is able to store CDS in.The affiant was not unsure which apartment defendant occupied, Marshall, supra, 199 N.J. at 613; there were no inaccuracies in the description, State v. Wright, 61 N.J. 146, 149 (1972); and the warrant did not authorize a search of the entire building, State v. Ratushny, 82 N.J. Super. 499, 504-05 (App. Div. 1964). The description of the area to be searched was detailed; an officer using reasonable effort would be able to determine the intended premises.
Finally, despite the plea agreement, defendant maintains his sentence under indictment 13-04-0448, which included the State's recommended extended eight-year prison term with a four-year period of parole ineligibility, is excessive. Defendant argues the judge should have found mitigating factors one, "defendant's conduct neither caused nor threatened serious harm," N.J.S.A. 2C:44-1(b)(1); and two, "defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1(b)(2).
We review a trial judge's decision to impose an extended-term sentence for abuse of discretion. State v. Pierce, 188 N.J. 155, 166 n.4 (2006) (citation omitted). Specifically, we will affirm a sentence unless: (1) the judge violated the sentencing guidelines; (2) competent, credible evidence in the record did not support the findings of aggravating and mitigating factors; or (3) the application of the law to the facts shocks the judicial conscience. State v. Bolvito, 217 N.J. 221, 228 (2014) (citation omitted).
When imposing an extended-term sentence on a qualifying defendant, N.J.S.A. 2C:44-3, a judge must determine the base term of the sentence by balancing any aggravating and mitigating circumstances and then must decide whether to impose a parole-ineligibility period. Id. at 164 (citation omitted). That is, the judge exercises discretion to impose a sentence within the minimum of the ordinary-term range and the maximum of the extended-term range. Id. at 169.
Here, the judge found aggravating factors three, "[t]he risk that . . . defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3); six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1(a)(6); and nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors.
Although defendant may not have contemplated, threatened, or caused serious harm when he failed to appear in court, any possible mitigating factors were indubitably outweighed by the well-supported aggravating factors. Defendant has an extensive criminal history spanning decades, including a history of drug-related offenses which threaten and cause serious harm. See State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994) ("Distribution of cocaine can be readily perceived to constitute conduct which causes and threatens serious harm. There was also reason to believe, in view of [the] defendant's history of drug involvement, that his violations of the law would continue."). Defendant was fully aware of his potential exposure; he entered a negotiated plea agreement providing for this extended term, and he confirmed during the plea hearing that he understood the sentence. The sentence is within the permissible range, and it is supported by credible evidence in the record. The judge's findings are well supported and the sentence does not shock the judicial conscience; we discern no abuse of discretion.
Defendant's argument that he is entitled to additional jail and gap time credits is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION