STATE OF NEW JERSEY v. VERNON A. BLACKWELL (19-06-0577, CUMBERLAND COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4458-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VERNON A. BLACKWELL, a/k/a
VERNON A. BLACKWELL, JR.,
Defendant-Appellant.
______________________________
Argued February 10, 2022 – Decided February 23, 2022
Before Judges Mawla and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 19-06-
0577.
Morgan A. Birck, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Morgan A. Birck, of counsel
and on the brief).
Andre R. Araujo, Assistant Prosecutor, argued the
cause for respondent (Jennifer Webb-McRae,
Cumberland County Prosecutor, attorney; Andre R.
Araujo, of counsel and on the brief).
PER CURIAM
Defendant Vernon Blackwell appeals from an April 21, 2020 judgment of
conviction sentencing him to eight years of incarceration with a four-year parole
disqualifier for possession of a controlled dangerous substance (CDS) with
intent to distribute and unlawful possession of a handgun. He argues that the
trial judge improperly denied his motion to suppress because the police lacked
probable cause when they arrested him and searched his person. He also argues
that the trial judge did not conduct the necessary qualitative analysis of the
aggravating factors during sentencing, requiring reversal. We affirm.
On the night of January 3, 2019, New Jersey State Police Officers of the
Metro South unit were working as a "proactive unit . . . look[ing] to suppress
violent crime[]" and conducting surveillance in the area of North High Street
and Mulberry Street in Millville. The area was known to police officers as a
high crime area. About a month prior, Officer Tyler Norton received
information from two confidential informants (CIs) that a man named Carlton
Goldsboro, whose street name was "Loyal," was selling large quantities of drugs
from his apartment located above High Street and Mulberry Street. Officer
Norton relied on these CIs in the past, and they had proven to be credible. The
CIs explained that other drug dealers in the area would replenish, or "re-up,"
A-4458-19
2
their supply from Goldsboro. The officers were familiar with Goldsboro's
history of dealing narcotics.
Two surveillance teams consisting of four officers each set up in the area.
The officers drove by the area to verify that Goldsboro was outside and then
assumed their surveillance positions approximately 100 yards away . Using
binoculars, they observed him leaning against a building and smoking a cigarette
at the intersection of North High and East Mulberry Streets. They next observed
a white 2012 Chevy Malibu with tinted windows pull up and park in the area
where Goldsboro was standing. Goldsboro threw his cigarette down and
approached the vehicle while the passenger, subsequently identified as
defendant, exited the vehicle and met with Goldsboro. The officers observed
Goldsboro remove a black bag from the front pocket of his sweatshirt and hand
it to defendant. Defendant then gave Goldsboro money. The officers believed
that they had just observed a hand-to-hand drug transaction and followed
defendant once he got back in his car and drove away.
The officers followed defendant back to an apartment complex and parked
directly behind him. When defendant exited his vehicle, they immediately
exited their cars, approached him, announced "State Police, you're under
arrest[,]" and tackled him. One officer alerted the others to the presence of a
A-4458-19
3
handgun in defendant's waistband. They subdued defendant and removed the
gun from his waistband. Defendant was handcuffed and searched. A search of
defendant's person found cocaine and heroin in a black bag in defendant's left
pocket, as well as a small amount of marijuana, a digital scale, $2,500 in cash,
and pills.
Defendant was charged with committing two counts of second-degree
possession with intent to distribute a CDS, N.J.S.A. 2C:35-5(a)(1) and (b)(2)
(counts two and four); two counts of third-degree possession of CDS, N.J.S.A.
2C:35-10(a)(1) (counts five and six); second-degree possession of a firearm
while committing a CDS offense, N.J.S.A. 2C:39-4.1(a) (count nine); third-
degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count ten); third-degree
resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count eleven); and second-degree
certain persons not to have a weapon. N.J.S.A. 2C:39-7(b)(1) (count twelve).
After a three-day hearing, a judge denied defendant's motion to suppress
by order dated November 22, 2019. On February 3, 2020, defendant pleaded
guilty to one count of second-degree possession with intent to distribute CDS
(count two) and one count of second-degree unlawful possession of a weapon
(count seven). On April 21, 2020, the judge sentenced defendant to two
concurrent terms of eight years' incarceration with four-year parole bars.
A-4458-19
4
On appeal, defendant presents the following arguments for our
consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS
EVIDENCE FOUND DURING THE
WARRANTLESS SEARCH OF DEFENDANT'S
PERSON.
POINT II
DEFENDANT'S SENTENCE IS EXCESSIVE AND
THE COURT FAILED TO EXPLAIN THE REASONS
FOR ITS IMPOSITION. THEREFORE, THE
SENTENCE MUST BE VACATED AND THE
MATTER REMANDED FOR RESENTENCING.
Our review of the judge's denial of a suppression motion is limited. State
v. Handy, 206 N.J. 39, 44-45 (2011). We "must uphold the factual findings
underlying the trial court's decision so long as those findings are 'supported by
sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243
(2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). We
"should not disturb the trial court's findings merely because 'it might have
reached a different conclusion were it the trial tribunal' or because 'the trial court
decided all evidence or inference conflicts in favor of one side' in a close case."
A-4458-19
5
Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Issues of law,
however, are reviewed de novo. State v. Gandhi, 201 N.J. 161, 176 (2010).
Both the United States and New Jersey Constitutions protect against
unreasonable searches and seizures. State v. Baum, 199 N.J. 407, 421 (2009).
"A warrantless search is presumed invalid [unless] it falls within a judicially
cognizable exception to the warrant requirement." State v. Valencia, 93 N.J.
126, 133 (1983). The State must demonstrate by a preponderance of the
evidence that an exception to the warrant requirement applies and that the
challenged search and seizure was legal. Ibid This case involves the search
incident to arrest exception identified by the U.S. Supreme Court in Chimel v.
California, 395 U.S. 752, 763 (1969). A valid search incident to arrest requires
police officers to have had probable cause to make the arrest.
"The standards for determining probable cause to arrest and probable
cause to search are identical." State v. Moore, 181 N.J. 40, 45 (2004). "Probable
cause exists where the facts and circumstances within . . . [the officers']
knowledge and of which they had reasonably trustworthy information [are]
sufficient in themselves to warrant a [person] of reasonable caution in the belief
that an offense has been or is being committed." Schneider v. Simonini, 163
N.J. 336, 361 (2000) (first and second alterations in original) (internal quotation
A-4458-19
6
marks omitted). In determining whether probable cause exists, this court must
view the totality of the circumstances from the standpoint of an objectively
reasonable officer. State v. Gibson, 218 N.J. 277, 293 (2014). The personal
observations of law enforcement officers are generally regarded as highly
reliable and sufficient to establish probable cause. See State v. O'Neal, 190 N.J.
601, 613-14 (2007); Moore, 181 N.J. at 46-47.
Probable cause arising from a CI's tip is evaluated under the totality of the
circumstances test. State v. Keyes, 184 N.J. 541, 555-56 (2005). An informant's
veracity and basis of knowledge are two highly relevant factors when
considering the totality of the circumstances, and a "deficiency in one of those
factors may be compensated for, . . . by a strong showing as to, or by some other,
or some other indicia of reliability." Ibid. (quoting State v. Zutic, 155 N.J. 103,
110-11 (1998)).
With these guiding principles in mind, we reject defendant's argument that
the officers lacked probable cause. The State police were conducting an
operation to combat violent crime in the high-crime area where Goldsboro's
home was located. 1 Two reliable CIs had informed police that Goldsboro was
1
The mere fact that the venue of a citizen's stop by police is known to be a high
crime area does not mean that citizens have lesser constitutional protection to
A-4458-19
7
selling drugs to dealers out of his apartment. The police knew of Goldsboro's
drug-dealing activities. Acting on the tips, they set up surveillance outside
Goldsboro's apartment. Goldsboro was outside smoking a cigarette when police
observed defendant pull up, get out of his car, and approach Goldsboro.
Goldsboro handed defendant a black bag and in exchange defendant handed him
money. Based on their experience, the officers believed they had witnessed a
hand-to-hand drug transaction. The totality of the circumstances more than
sufficiently established probable cause to believe defendant had purchased and
remained in possession of narcotics. See Moore, 181 N.J. at 46-47 (noting
probable cause to arrest existed where: 1) the officer conducting surveillance
"was an experienced narcotics officer[;]" 2) he had previously made arrests in
the neighborhood which was known for heavy drug trafficking; and 3) "[u]sing
binoculars, [the officer] observed three men move away from the group to the
back of a vacant lot, and he saw defendant and his companion give money to the
third person in exchange for small unknown objects"); Cf. State v. Pineiro, 181
N.J. 13, 28 (2004) (finding no probable cause because unlike in Moore, there
was "no observation of currency or anything else exchanged, rather, there was
be free of unreasonable searches and seizures. See State v. Shaw, 213 N.J. 398,
420 (2012).
A-4458-19
8
merely a transfer of a cigarette pack" and there was "no proof of 'regularized
police experience that objects such as [hard cigarette packs] are the probable
containers of drugs.'") (alternation in original) (quoting State v. Demeter, 124
N.J. 374, 385-86 (1991)).
We review a sentencing decision for an abuse of discretion. State v.
Miller, 237 N.J. 15, 28 (2019). We must "consider whether the trial court has
made findings of fact that are grounded in competent, reasonably credible
evidence and whether 'the factfinder [has] appl[ied] correct legal principles in
exercising its discretion.'" State v. Blackmon, 202 N.J. 283, 297 (2010)
(alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). We
may not substitute our judgment for that of the sentencing court. State v.
Fuentes, 217 N.J. 57, 70 (2014). Rather, we must affirm a sentence unless a trial
court violated the sentencing guidelines, found aggravating or mitigating factors
not based on competent and credible evidence in the record, or applied the
guidelines in such a manner as to "make[] the sentence clearly unreasonable so
as to shock the judicial conscience." Miller, 237 N.J. at 28 (quoting Fuentes,
217 N.J. at 70).
When sentencing a defendant, a court must identify and balance the
aggravating and mitigating factors pursuant to N.J.S.A. 2C:44-1(a) and (b), and
A-4458-19
9
explain the factual basis supporting its findings. Fuentes, 217 N.J. at 73, 81. "It
is sufficient that the trial court provides reasons for imposing its s entence that
reveal the court's consideration of all applicable mitigating factors in reaching
its sentencing decision." State v. Bieniek, 200 N.J. at 609 (2010). "After
balancing the factors, the trial court may impose a term within the permissible
range for the offense." Id. at 608.
We also reject defendant's argument his sentence was excessive.
Defendant argues that the judge failed to "engage in a qualitative analysis of
[aggravating factors three, six, and nine] and to explain the reasons behind
[defendant's] sentence." Each of the two counts to which defendant pled guilty
were second-degree offenses subject to a presumption of incarceration between
five and ten years pursuant to N.J.S.A. 2C:43-6(a). Here, the judge found that
aggravating factors outweighed the mitigating factors and sentenced defendant
to eight years on each count to run concurrently. The parole bar was statutorily
mandated. See N.J.S.A. 2C:43-6(b).
Contrary to defendant's argument, the judge sufficiently explained his
reasons for finding the three aggravating factors:
I have reviewed the Presentence Report that's
contained within the eCourts case jacket. I will make
the following findings with regard to both the
aggravating and mitigating factors.
A-4458-19
10
I . . . will find aggravating factor three. That's
risk that he's going to re-offend. He's [thirty-six] years
of age. He does have a juvenile record consisting of
[fifteen] arrests, three ordinance violations, six
adjudications, two violations of probation. As an adult,
there are [twenty] arrests, one local ordinance
[violation], three disorderly convictions, nine
indictable convictions, which would include the instant
offenses, three parole violations, and he did have an
arrest in Philadelphia. I give that substantial weight.
Moderate weight to aggravating factor six, the
extent of his prior record. It's as set forth.
Aggravating factor nine, the need to deter the
defendant and others from violating the law, I'm going
to give that moderate weight.
The sentence imposed was within the permissible sentencing range, was
supported by the credible evidence in the record, and does not offend the judicial
conscience. See Miller, 237 N.J. at 28. We discern no abuse of discretion
requiring resentencing.
Affirmed.
A-4458-19
11