STATE OF NEW JERSEY VS. ANGELO CUCULINO (15-01-0028, CAPE MAY COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0516-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANGELO CUCULINO a/k/a
ANGELO CUCLINO,
Defendant-Appellant.
___________________________
Argued September 16, 2019 – Decided November 22, 2019
Before Judges Sabatino, Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Indictment No. 15-01-
0028.
Jennifer L. Gottschalk argued the cause for appellant.
Gretchen Anderson Pickering, Assistant Prosecutor,
argued the cause for respondent (Jeffrey H. Sutherland,
Cape May County Prosecutor, attorney; Gretchen
Anderson Pickering, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Angelo Cuculino entered an open unconditional guilty plea to
all five counts of an indictment on the eighth day of a jury trial after the State
had rested. Among the charges defendant pleaded guilty to were two counts of
third-degree distribution of a controlled dangerous substance (CDS) called
alpha-pyrrolidinopentiophenone (alpha-PVP),1 in violation of N.J.S.A. 2C:35-
5(a)(1) and N.J.S.A. 2C:35-5(b)(13). He appeals from his conviction and
sentence, contending the trial court erred by: (1) denying his motion to dismiss
counts one and two of the indictment because alpha-PVP was not a controlled
dangerous substance (CDS) under New Jersey law on the dates he distributed it
to an undercover detective; (2) denying his motion to dismiss counts one through
four of the indictment because the grand jury presentation was irrevocably
flawed; (3) denying his motion to suppress physical evidence; (4) denying trial
counsel of his choice; (5) denying his motion to withdraw his guilty plea; and
(6) imposing an excessive sentence that included three non-mandatory
1
"Alpha–PVP is a designer drug that produces a powerful stimulant effect in
its users." United States v. Moreno, 870 F.3d 643, 644 (7th Cir. 2017). Alpha-
PVP is commonly known as "flakka" or "flocka." Cannel, N.J. Criminal Code
Annotated, cmts. on N.J.S.A. 2C:35-5.3a & N.J.S.A. 2C:35-10.3a.
A-0516-16T4
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consecutive prison terms. We affirm the convictions and remand for
resentencing.
I.
We discern the following facts from the record. A narcotics investigation
was initiated by a Cape May County Prosecutor's Office's Task Force based on
information it received about defendant from a confidential informant (CI). The
investigation led to two undercover buys from defendant and the seizure of other
contraband.
More specifically, on September 26, 2014, Detective Ashlee Lucariello,
acting as an undercover officer, traveled to Upper Township to meet with
defendant for the purpose of purchasing a CDS known as "Mollie." 2 Lucariello
arrived at a location on South Shore Road in Marmora, 3 entered defendant's
Jeep,4 and tendered $80 in prerecorded currency in exchange for a clear Ziploc
bag of an off-white, rock-like substance that later tested positive for alpha-PVP,
2
Also known as MDMA, "mollie" is the street name for
methylenedioxymethamphetamine. It is the primary component of the CDS
commonly known as Ecstasy.
3
Marmora is part of Upper Township.
4
Motor vehicle records identified defendant as the owner of the Jeep.
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3
a bath salt. After completing the sale, defendant was observed as he traveled
directly to and entered his residence in Marmora.5 On September 30, 2014,
Lucariello identified defendant as the individual who sold her the drugs from a
double-blind photo array.
On October 9, 2014, Lucariello performed another undercover buy from
defendant. Once again, Lucariello traveled to a location on South Shore Road
in Marmora, entered defendant's Jeep, and exchanged $80 for one clear Ziploc
bag of an off-white, rock-like substance that later tested positive for alpha-PVP.
Based on these events, the Prosecutor's Office applied for a search warrant
for defendant's person, vehicle, and residence based on the fourteen-page
affidavit of Task Force Officer Christopher Vivarelli. The affidavit set forth
Vivarelli's law enforcement experience and specialized training. The search
warrant was sought based on evidence defendant engaged in the distribution,
possession, and use of CDS, including alpha-PVP, and possession of
paraphernalia. The affidavit detailed information learned from the CI during the
month of September 2014 regarding a CDS distribution scheme in Cape May
County. The affidavit also set forth the previous reliability of the CI.
5
The location of the residence matched defendant's motor vehicle records.
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The CI provided information that defendant was actively distributing
"Mollie" and marijuana in Cape May County, including Ocean City and Upper
Township. The CI identified defendant from a photograph. The CI also
provided defendant's cellular telephone number.
The affidavit further related Lucariello's two undercover buys of CDS
from defendant in considerable detail. It also set forth defendant's criminal
history, which included a prior CDS conviction.
The search warrant was granted by a Superior Court judge and executed
on October 16, 2014. Defendant was stopped while driving and arrested. A
search incident to arrest revealed $2,896 in his pant's pockets. The search
warrant was then executed on defendant's residence. A search of the northeast
bedroom revealed: a 1000-gram digital scale; a clear Ziploc bag containing an
off-white, rock-like substance that tested positive for Methylone, a bath-salt-
type Schedule I CDS; a .22 caliber handgun with one empty magazine; 100
rounds of .22 caliber bullets; and $16,073. The search also revealed: a clear
plastic bag containing brownish-green vegetation in the second floor hallway
closet; numerous Ziploc baggies with "Heavy D" girl stamps in the first floor
living room; and a 12-gauge shotgun and a rifle behind the first-floor furnace.
A search of defendant's Jeep revealed five cell phones and $256.
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A Cape May County Grand Jury returned a five-count indictment against
defendant, charging him with: two counts of third-degree distribution of CDS or
its analogue (alpha-PVP), N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(13) (counts
one and two); third-degree possession with intent to distribute CDS
(Methylone), N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(13) (count three); second-
degree unlawful possession of firearms while committing a CDS crime, N.J.S.A.
2C:39-4.1 (count four); and second-degree certain persons not to possess
firearms, N.J.S.A. 2C:39-7 (count five). Counts one and two were based on
sales of alpha-PVP to an undercover officer on September 26 and October 9,
2014, respectively. Counts three, four, and five were based on evidence seized
during the search of defendant's residence. The indictment was based on the
testimony of Detective Sergeant Daniel Holt of the Cape May County
Prosecutor's Office. The grand jury presentation included testimony that the
bath salts could not be used for bathing, and none of the seized firearms were
registered.
In early 2015, defendant retained private counsel. Defendant moved to
suppress the evidence seized during the execution of the search warrant and to
dismiss the indictment. Defendant argued the search warrant was not based on
sufficient probable cause. He also argued the indictment should be dismissed
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because alpha-PVP was not illegal in New Jersey during the time period in
question. The trial court denied both motions.
By mid-August 2015, defendant retained new private counsel. Defendant
moved for reconsideration of the denial of his motions to dismiss the indictment
and to suppress the physical evidence seized during the search of his car and
house. He also moved: (1) for change of venue; (2) to reveal the identity of a
confidential informant and/or in camera review of confidential information; and
(3) to suppress the chain of custody. The trial court denied the motions.
Trial was scheduled for mid-May 2016. The State moved in limine to
declare that alpha-PVP was a scheduled CDS in New Jersey at the time of the
two undercover buys. The trial court conducted a N.J.R.E. 104 hearing during
which Matthew Wetzel, the Assistant Deputy Director of the Division of
Consumer Affairs of the Department of Law and Public Safety (the Division),
was the sole witness.
Wetzel testified regarding the process by which alpha-PVP became a CDS
in New Jersey. He explained that on January 28, 2014, the Federal Drug
Enforcement Agency (DEA) published a notice of intent in the Federal Register
to place alpha-PVP on a CDS schedule. On March 7, 2014, the DEA issued and
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published an order in the Federal Register placing alpha-PVP as a Schedule I
CDS. The order became effective as of the date it was published.
Wetzel testified that pursuant to N.J.A.C. 13:45H1,7 and -8.2, alpha-PVP
became a Schedule I CDS in New Jersey thirty days later on April 6, 2014,
because the Director of the Division did not object to it being scheduled as a
CDS. Wetzel confirmed that alpha-PVP was a Schedule I CDS in September
and October 2014 and remained so.
While the Division maintains a CDS master list that is updated over time
after the administrative procedure is finalized, it refers inquiring parties to the
DEA's "website which clearly lists all Schedule I through Schedule V controlled
substances." Wetzel noted that a substance becomes scheduled in New Jersey –
even if not identified on the master list – when identified as CDS on a federal
CDS schedule.
The trial court found Wetzel was "familiar with the legislative process,
the administrative process, as well as scheduling of items pursuant to the
Administrative Code and [N.J.S.A.] 24:21-3." It deemed Wetzel's testimony to
be candid, credible, and internally consistent. The court noted alpha-PVP was
still listed as a scheduled CDS on the federal website. It found that any
individual who wanted to check if a substance was a CDS could do so without
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difficulty. The court determined alpha-PVP became a CDS in New Jersey as of
April 6, 2014, and "barr[ed] any reference by either side raising the issue that
alpha-PVP is not a Schedule I controlled dangerous substance." The trial court
denied defendant's request for a stay pending appeal.
Defendant then sought emergent review, leave to appeal, and a stay of the
trial court's rulings from this court in applications prepared by trial counsel and
appellate counsel. We denied the applications.
The jury trial was delayed because defendant was admitted to the hospital
on May 19, 2016. The trial began four days later. Defendant sought to further
adjourn the trial due to alleged medical issues. He presented a note dated May
19, 2016, and letter dated May 24, 2016, from Wayne R. Schneider, M.D. The
letter stated that on May 19, 2016, defendant was placed on medical leave for
one month following his hospital admission and that he "requires absolute non-
stressful situations and activity i.e. home rest due to the possible complications
of not having timely and necessary cardiac testing. Stress of any kind could
induce an acute coronary syndrome. At this point he is unable to focus due to
his condition." Defendant claimed he was not physically or mentally competent
to stand trial based on his medical condition. The trial court refused to delay
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the trial unless Dr. Schneider testified in court that a further adjournment of the
trial was medically necessary. That did not occur.
Defendant also sought to adjourn the trial to retain new trial counsel. He
claimed trial counsel informed him that he had not properly prepared a defense,
had not hired any experts, had not subpoenaed any witnesses, and had not
examined the evidence until two days before trial. The trial court declined
adjourning the trial.
The trial commenced on May 23, 2016. After the State rested, defendant
moved for a judgment of acquittal on counts three and four pursuant to State v.
Reyes, 50 N.J. 454 (1967). Before the court rendered a decision, defendant
indicated his intent to enter an unconditional open guilty plea to all five counts
after the State secured permission to plead the case off the trial list. Because it
was an open plea, there was no recommended sentence.
The trial court conducted a thorough plea hearing. The court noted it had
"given no indication as to what the maximum sentence would be." Counsel
confirmed it was an open unconditional plea to all five counts. The court and
the prosecutor stated they had made no sentencing promises. The prosecutor
confirmed that the State was not making any sentencing recommendations.
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During his sworn testimony, defendant confirmed he was fifty years old
and had completed high school. He stated he had taken aspirin and a
nitroglycerin pill that day. He did not think the medication affected his ability
to think clearly. He stated he was under medical treatment but it did not impair
his judgment. He confirmed that he understood what he was doing by pleading
guilty.
Defendant confirmed he reviewed each question on the plea forms with
his attorney, understood the questions, and answered each question truthfully.
He stated he was entering an open plea "settling this matter now," after the State
had rested.
Defendant confirmed that he was satisfied with his attorney and the advice
he received. He acknowledged reviewing all of the discovery and each of the
counts of the indictment. When asked if he had any defense to the charges he
was pleading to he answered in the negative. He confirmed that he was pleading
guilty because he was guilty of the offenses.
Defendant also confirmed he was pleading guilty voluntarily and that no
one forced, threatened, pressured, or coerced him to enter the open plea. He
further confirmed that no promises had been made to him by the State or the
court. Defendant acknowledged the rights he was giving up by pleading guilty
A-0516-16T4
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and still wished to do so. He acknowledged this was not the first time he had
pleaded guilty to a crime.
Defendant provided a detailed factual basis for his plea to each count. He
admitted to unlawfully selling alpha-PVP to an undercover officer on two dates
and possessing Methylone, which the police found in his bedroom, with intent
to distribute it. He also admitted knowing that alpha-PVP and Methylone were
CDSs at the time the respective offenses were committed and that it was
unlawful to distribute or possess those substances.
As to the weapons offenses, defendant admitted that a pistol, 12-gauge
shotgun, and bolt action rifle were seized from his residence. He admitted
unlawfully possessing the three firearms while committing the crime of
possession of CDS with intent to distribute it. When asked if the firearms were
his, defendant twice answered, "Yes." When asked if he knew the firearms were
in his home, defendant twice answered, "Yes." Defendant specifically admitted
to being in possession of the three firearms. He further admitted being
designated a person not to possess firearms due to his 1995 conviction for
endangering the welfare of a child.
Defendant confirmed he had no questions about the statutory maximum
sentence for each count. He acknowledged that each third-degree offense
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carried a maximum sentence of five years and the second-degree offenses
carried a ten-year maximum term, yielding an aggregate thirty-five-year term if
the terms ran consecutively.
The court made the following findings:
I find you've had the advice of competent counsel with
whom you are satisfied. You've entered this plea to
these charges freely and voluntarily. You knowingly,
intelligently, and freely waived your rights to a trial of
the evidence, the continuation of the trial of the
evidence, to confront any further witnesses or call your
witnesses and to remain silent or testify as you so
choose with your attorney's advice. I find that you are
neither intoxicated, nor infirmed, and I make that based
on your testimony that you've given me, as well as my
observations. . . . I find you have not been threatened
or coerced to enter into the open plea unconditionally.
No promise has been made to you outside the record. I
find that you understand the range of the sentence that
may [be] imposed and that's been displayed on the – the
top of the plea forms.
The court also found defendant provided an adequate factual basis for the pleas.
The court accepted the open plea and scheduled sentencing for August 19, 2016.
Defendant then withdrew his pending Reyes motion.
On July 22, 2016, defendant's fourth counsel replaced trial counsel and
moved to amend the electronic monitoring pending sentencing. The trial court
denied the motion.
A-0516-16T4
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Prior to sentencing, defendant moved to withdraw his guilty plea, arguing
he always maintained his innocence, his trial attorney was unprepared, and he
did not plead voluntarily. Defendant claimed two other men were responsible
for the first CDS sale and the second CDS sale did not occur as the State alleged.
Counsel noted there was no independent objective evidence of either sale, such
as videotapes, audio recordings, or photographs.
As to the weapons charges, defendant claimed he was unaware that the
firearms were in his house. Defendant asserted he was prepared to have
witnesses testify that the firearms were brought to his house by somebody else.
He maintained that he provided the names, addresses, and phone numbers of
those witnesses to trial counsel.
Defendant contended his trial counsel was completely unprepared, had not
reviewed all of the discovery, did not understand the chemistry of the lab tests,
had not subpoenaed any witnesses, and had not complied with Rule 3:13-3 by
providing a summary of each witnesses expected testimony. Defendant further
contended trial counsel told him he had no choice but to plead guilty because he
has no witnesses, and if he did have witnesses, they would not be believable ,
and he could not testify because nobody is going to believe him. Defendant
claimed he wanted to testify. Defendant also pointed out that his attempt to
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obtain a new attorney was denied by the court because it was too late to do so.
Finally, defendant contended withdrawal of the pleas would not be unfair to the
State or give defendant an unfair advantage.
Conversely, the State argued that trial counsel was prepared and had met
with prosecutors on numerous occasions. The prosecutor noted this was not a
post-conviction relief hearing. The prosecutor pointed to defendant's pretrial
motion practice and interlocutory appeals. Trial counsel cross-examined all of
the State's witnesses. Moreover, the issue of whether alpha-PVP was a
scheduled CDS was determined pretrial. The prosecutor also informed the court
that defendant consulted with both trial counsel and another criminal defense
attorney who had not yet entered an appearance, before entering the open plea.
The State contended defendant entered his open plea voluntarily and
knowingly. It argued it would be prejudiced if defendant were permitted to
withdraw his plea after it had rested. Finally, it asserted defendant did not
express a colorable claim of innocence.
The trial court issued an oral decision denying the motion. It analyzed the
four factors adopted by the Court in State v. Slater, 198 N.J. 145, 157-58 (2009).
The court recounted defendant's unequivocal testimony during the
"painstakingly detailed" plea hearing, including being satisfied with his attorney
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and the advice he had received. Based on defendant's testimony during the plea
hearing, the court rendered its decision without hearing additional testimony,
finding it unnecessary.
The court deemed defendant "very much in control of his defense." The
court concluded "certain things happened at trial and that [the] plea would not
have happened unless [defendant] wanted it to happen." It noted there were two
sales to undercover officers, a valid search warrant, and trial counsel had
submitted a proposed witness list.
The court stated the maximum aggregate sentencing exposure if the terms
ran consecutively was addressed during the plea hearing and understood by
defendant. The court further noted that mandatory consecutive sentence
requirement for unlawful possession of a firearm while committing a CDS crime
was addressed in the pretrial memorandum that was completed with the
assistance of counsel.
The court noted the determination that alpha-PVP was a CDS was made
after conducting a hearing before the trial commenced. The court rejected
defendant's claim that a hearsay document from the Governor's Office presented
a colorable claim of innocence. The court discussed the strength of the State's
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case as to the distribution of alpha-PVP to undercover Detective Lucariello,
whose "unequivocal" testimony was "clear, concise, [and] direct."
The court noted defendant clearly indicated he was satisfied with trial
counsel during the plea colloquy. The court concluded that an open plea should
be given even more weight than a negotiated plea.
As to prejudice to the State, the court noted defendant had the opportunity
to listen to all of the State's witnesses, which allowed him to assess the strength
of the State's case. The court concluded withdrawal of the guilty plea would
prejudice the State, in part due to the additional passage of time that would result
in further fading of memories.
The court then proceeded to sentencing. During his allocution, defendant
again argued to withdraw his guilty plea. The trial court found aggravating
factors three, six, and nine and no mitigating factors. 6 The court sentenced
defendant to four-year terms on counts one, two, and three; a six-year term on
count four, and a six-year term with a mandatory five-year period of parole
ineligibility on count five. When considering whether the terms should run
concurrently or consecutively, the court stated:
Based on the facts and consideration of State v.
Yarbough, 100 N.J. 627 (1985), the [c]ourt finds . . .
6
N.J.S.A. 2C:44-1(a)(3), (6), (9).
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there can be no free crimes in the system for which the
punishment shall fit the crime. The five crimes are
separate and distinct. The crimes and objectives were
predominantly independent of each other, committed
on . . . separate occasions, and were not indicative of a
single period of aberrant behavior. The [c]ourt does not
factor and/or double count aggravating factors. The
[c]ourt finds it is indisputable that the crimes were
independent of each other, committed on different days,
different times. The [c]ourt does find that a consecutive
sentence is appropriate for this defendant.
The court ordered each term to run consecutively, yielding an aggregate
twenty-four-year prison term subject to a five-year period of parole ineligibility.
Defendant acknowledges that the sentence on count four is mandatorily
consecutive pursuant to N.J.S.A. 2C:39-4.1(d), and the five-year period of
parole ineligibility on count five is mandatory pursuant to N.J.S.A. 2C:39-
7(b)(1). This appeal followed.
The Legislature subsequently amended N.J.S.A. 2C:35-5.3a(a) and
N.J.S.A. 2C:35-10.3a(a), effective August 7, 2017, more than two years after
the undercover buys that lead to defendant's conviction on counts one and two.7
The amendments expressly criminalize distribution, possession with intent to
distribute, and possession of substances containing alpha-PVP. N.J.S.A. 2C:35-
5.3a(a); N.J.S.A. 2C:35-10.3a(a).
7
Lans. Ch. 2017, c. 209. §§ 1-2.
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Under the amended version of the statutes, distribution or possession with
intent to distribute one ounce or more of alpha-PVP is a second-degree crime,
N.J.S.A. 2C:35-5.3a(b), while distribution or possession with intent to distribute
less than one ounce of alpha-PVP is a third-degree crime, N.J.S.A. 2C:35-
5.3a(c). Possession of one ounce or more of such substances is a third-degree
crime. N.J.S.A. 2C:35-10.3a(b). Possession of less than one ounce is a fourth-
degree crime. N.J.S.A. 2C:35-10.3a(c). Notably, counts one and two charged
defendant with third-degree distribution of alpha-PVP, N.J.S.A. 2C:35-5(a)(1)
and 2C:35-5(b)(13).
Defendant raises the following points on appeal:
POINT ONE
DEFENDANT WAS WRONGFULLY CONVICTED
OF UNLAWFUL DISTRIBUTION OF A
CONTROLLED DANGEROUS SUBSTANCE,
ALPHA-PVP.
A. The Trial Court Erroneously Ruled That
Alpha-PVP Was A Controlled Dangerous
Substance Whose Possession Was Prohibited By
The New Jersey Criminal Code.
B. Conviction Of Unlawful Distribution Of
Alpha-PVP Was Improper As The Substance's
Criminalization Post-Dated Defendant's Plea
And Sentencing.
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POINT TWO
THE TRIAL COURT SHOULD HAVE DISMISSED
COUNTS ONE THROUGH FOUR OF THE
INDICTMENT, AS THE GRAND JURY
PRESENTATION WAS IRREVOCABLY FLAWED.
A. The Grand Jury Prosecutor Did Not Properly
Charge The Grand Jury. (Not Raised Below).
B. The Indictment Was Defective Because It Did
Not Adequately Advise Defendant Of The
Charges Against Him.
C. The Improper Use Of "And/Or" In Count Four
Of The Indictment Also Renders Defendant's
Conviction For That Charge Improper. (Not
Raised Below).
POINT THREE
THE WARRANT JUDGE IMPROPERLY
AUTHORIZED POLICE TO SEARCH
DEFENDANT'S HOUSE WHEN IT FAILED TO
ESTABLISH PROBABLE CAUSE THAT
DEFENDANT HAD CONTROLLED DANGEROUS
SUBSTANCES OR PROCEEDS FROM SALES OF
THEM THERE.
POINT FOUR
DEFENDANT WAS DENIED TRIAL COUNSEL OF
HIS CHOICE IN VIOLATION OF THE SIXTH
AMENDMENT OF THE FEDERAL
CONSTITUTION.
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POINT FIVE
DEFENDANT SHOULD HAVE BEEN PERMITTED
TO WITHDRAW[] HIS GUILTY PLEA UNDER
RULE 3:9-3(e).
POINT SIX
THE TRIAL COURT IMPROPERLY SENTENCED
DEFENDANT TO AN EXCESSIVE TERM BASED
UPON CONSECUTIVE TERMS ON COUNTS ONE,
TWO AND THREE.
Defendant raised the following points in a pro se supplemental brief:
POINT ONE
THE TRIAL COURT ERRED IN CONVICTING
APPELLANT, WHEN LEGISLATURE STATE'S
ALPHA-PVP WAS NOT ILLEGAL, NOT
CRIMINALIZED, AND NOT A SCHEDULE[]-1
SUBSTANCE IN [NEW JERSEY] WARRANTING
DISMISSAL OF THE INDICTMENT.
POINT TWO
THE TRIAL COURT ERRED IN FAILING TO
SUPPRESS EVIDENCE OBTAINED AS A RESULT
OF A COURT ORDERED SEARCH AND SEIZURE
OF DEFENDANT'S HOME WHEN NO PROBABLE
CAUSE EXISTED.
POINT THREE
THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT'S MOTION FOR A CONTINUANCE,
AND PREVENTED HIM FROM DISCHARGING HIS
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PAID TRIAL COUNSEL AND SUBSTITUTING
WITH PAID COUNSEL OF CHOICE.
POINT FOUR
THE TRIAL COURT CONSTITUTIONALLY ERRED
IN REFUSING TO ALLOW DEFENDANT TO
WITHDRAW HIS OPEN PLEA AND TO TESTIFY
AT THAT MOTION.
POINT FIVE
1) THE TRIAL COURT CONSTITUTIONALLY
ERRED WHEN ACCEPTING DEFENDANT'S PLEA
WHEN NO FACTUAL BASIS HAD BEEN MADE
FROM THE LIPS OF DEFENDANT AND 2) THE
INDICTMENTS ARE FATALLY DEFECTIVE FOR
LACK OF IDENTIFIED SUBSTANCE.
POINT SIX
DEFENDANT IS NOT BARRED FROM RAISING
ANY PRE-TRIAL OR CONSTITUTIONAL ISSUES,
SINCE DEFENDANT DID NOT WAIVE THOSE
RIGHTS. SEE PLEA FORM QUESTION "E."
II.
A.
Defendant mainly argues the Legislature did not criminalize alpha-PVP
until it amended N.J.S.A. 2C:35-5.3a(a) and N.J.S.A. 2C:35-10.3a(a), effective
August 7, 2017, and thus his conviction for distributing and possessing alpha-
PVP with intent to distribute it in 2014 is unconstitutional under ex post facto
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principles. The trial court rejected this argument. We review the trial court's
legal conclusions de novo. State v. Nash, 212 N.J. 518, 540-41 (2013) (citing
State v. Harris, 181 N.J. 391, 415-16 (2004)).
"Both the State and Federal constitutions forbid the legislative branch
from passing 'ex post facto' laws." State v. Natale, 184 N.J. 458, 490 (2005)
(citing U.S. Const. art. I, § 9, cl. 3; U.S. Const. art. I, § 10, cl. 1; N.J. Const. art.
IV, § 7, ¶ 3). "The prohibition against ex post facto laws was intended 'to assure
that legislative Acts give fair warning of their effect and permit individuals to
rely on their meaning until explicitly changed.'" Ibid. (quoting Weaver v.
Graham, 450 U.S. 24, 28-29 (1981)). Consequently, "unforeseeable judicial
enlargement of a criminal statute, applied retroactively, operates precisely like
an ex post facto law." Ibid. (quoting State v. Young, 77 N.J. 245, 253 (1978)
(per curiam)). "Nevertheless, the Ex Post Facto Clause bars retroactive judicial
enlargement of a criminal statute only where it is 'unexpected and indefensible
by reference to the law which had been expressed prior to the conduct in issue.'"
Id. at 490-91 (quoting Rogers v. Tennessee, 532 U.S. 451, 457 (2001)).
We reject defendant's argument that alpha-PVP was not a Schedule I CDS
at the time of the undercover buys. In reaching that conclusion, we adopt the
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reasoning of our recent decision in State v. Nicolas, ___ N.J. Super. ___ (App.
Div. 2019). As we explained in Nicolas:
The New Jersey Controlled Dangerous Substances Act
(CDSA) both affords and restricts the authority of the
Director of Consumer Affairs in the Department of Law
and Public Safety (Director) to schedule and control
certain hazardous substances. On one hand, N.J.S.A.
24:21-3(a) permits the Director to control a substance
after considering eight factors concerning the
substance's potential for abuse, the scientific evidence
and knowledge of the substance's effects, and the risk
to public health. However, "[i]f any substance is
designated, rescheduled or deleted as a controlled
dangerous substance under federal law and notice
thereof is given to the [D]irector, the [D]irector shall
similarly control the substance . . . after the expiration
of [thirty] days from the publication in the Federal
Register[.]" N.J.S.A. 24:21-3(c). Should the Director
"object" to the federal government's "inclusion,
rescheduling, or deletion[,] . . . the director shall cause
to be published in the New Jersey Register and made
public the reasons for his objection and shall afford all
interested parties an opportunity to be heard." Ibid.
In 2014, the Deputy Administrator of the Drug
Enforcement Agency (DEA) temporarily placed alpha-
PVP in Schedule I. Schedules of Controlled
Substances: Temporary Placement of 10 Synthetic
Cathinones into Schedule I, 79 Fed. Reg. 12, 938 (Mar.
7, 2014) (to be codified at 21 C.F.R. pt. 1308). A
substance's temporary designation lasts two years, and
the DEA may, as it did in alpha-PVP's case, extend the
temporary scheduling for up to one more year. 21
U.S.C. § 811(h)(2); Schedules of Controlled
Substances: Extension of Temporary Placement of 10
Synthetic Cathinones in Schedule I of the Controlled
A-0516-16T4
24
Substances Act, 81 Fed. Reg. 11, 429 (Mar. 4, 2016) (to
be codified at 21 C.F.R. pt. 1308). The Director
declined to object to the DEA's designation of alpha-
PVP in Schedule I. Thus, at the time of defendant's
2015 arrest, alpha-PVP was a Schedule I drug under
both federal and New Jersey law.
Defendant argues alpha-PVP's designation as
such by the federal government does not necessarily
mean the substance was in Schedule I under the CDSA.
Rather, defendant contends that once the federal
government schedules a substance, N.J.S.A. 24:21-3(c)
requires the Director to either update the list of
controlled substances through publication in the New
Jersey Register or file an objection to the federal
government's scheduling of the substance. Because the
Director never formally recognized alpha-PVP as a
controlled substance after the federal government did
so, defendant argues his possession of alpha-PVP was
not contrary to New Jersey law at the time of his arrest.
We disagree. When the federal government
schedules a substance, N.J.S.A. 24:21-3(c) gives the
Director thirty days to do one of two things: (1) control
the substance consistent with the federal government's
scheduling, or (2) file an objection in the New Jersey
Register. Absent is a requirement that the Director give
notice when he or she intends to control the substance
as directed by federal law. Thus, if the Director fails to
file an objection to the federal government's scheduling
within thirty days, as was the case with alpha-PVP, the
Director must control the substance consonant with
federal law.
The regulations promulgated by the Director
confirm that substances scheduled by the federal
government automatically receive the same designation
A-0516-16T4
25
under the CDSA, unless the Director objects. N.J.A.C.
13:45H-1.7 provides:
regulations promulgated pursuant to the
United States Comprehensive Drug Abuse
Prevention and Control Act of 1970, which
designate, reschedule or delete a substance
as a controlled substance under Federal
Law, shall be deemed to be effective under
[the CDSA] [thirty] days after their
effective date of the Federal regulation,
unless the Director, within that [thirty] day
period, shall object to inclusion,
rescheduling or deletion, which objection
shall thereafter be published in the New
Jersey Register.
And N.J.A.C. 13:45H-10.1(b) notes that "[a]ny
reference in this chapter to controlled dangerous
substance Schedules I, II, III, IV and V shall mean the
Federal schedules promulgated at 21 C[.]F[.]R[.] [§§]
1308.11 through 1308.15 . . . unless the Director objects
. . . in accordance with . . . N.J.S.A. 24:21-3 and
N.J.A.C. 13:45H-1.7." Therefore, alpha-PVP was
automatically included in Schedule I because the
Director did not object to the federal government's
designation.
[Id. at ___ (slip op. at 4-7) (alterations in original).]
That analysis applies with equal force to the facts in this case. Thus, alpha-PVP
was a Schedule I CDS under both federal and New Jersey law at the time
defendant distributed it to an undercover officer on September 26 and October
9, 2014.
A-0516-16T4
26
The holding in Nicolas is not a departure from prior precedent. In State
v. Metcalf, 168 N.J. Super. 375 (App. Div. 1979), we held constructive
publication in the New Jersey Register is sufficient to alert the public that a
substance listed by the DEA as a Schedule III CDS became a controlled
dangerous substance in New Jersey. Id. at 379-80. In reaching that conclusion,
we addressed whether the regulatory process provided adequate notice to the
public that the substance was illegal:
Anyone interested in ascertaining whether [a
substance] was classified as a controlled dangerous
substance would have been alerted by the notice so as
to learn that it was. Defendant freely admits through
his counsel that he did not rely on any publication to
determine if the drug was classified as a controlled
dangerous substance.
[Id. at 380.]
Here, defendant testified during the plea hearing that he knew at the time
he distributed alpha-PVP to an undercover officer on September 26 and October
9, 2014, it was unlawful to do so because it was a Schedule I CDS. He does not
claim that he relied on any publication or the absence of such publication to
determine if alpha-PVP was classified as a CDS. Indeed, the clandestine nature
of the sales to the undercover officer bespeaks knowing it was unlawful to
possess or distribute alpha-PVP.
A-0516-16T4
27
Our decision in Kadonsky v. Lee, 452 N.J. Super. 198 (App. Div. 2017)
does not compel a different conclusion. As we explained in Nicolas:
the Kadonsky court did not suggest the Director must
republish updated CDS schedules each and every time
the federal government revises its own schedules.
Rather, the Director need only provide notice when he
or she "objects to [the federal government's] inclusion,
rescheduling, or deletion" of a CDS and to
"periodically" "update and republish the schedules" in
N.J.S.A. 24:21-5 to -8.1. N.J.S.A. 24:21-3(c) & (d). In
this case, the Director was not obligated to provide
notice that alpha-PVP was added to Schedule I the
moment it became a CDS.
[Nicolas, ___ N.J. Super. at ___ (slip op. at 8)
(alteration in original).]
Defendant raises an additional argument not raised in Nicolas. He
contends that the subsequent adoption of amendments to N.J.S.A. 2C:35-5.3a(a)
and N.J.S.A. 2C:35-10.3a(a), effective August 7, 2017, demonstrate that alpha-
PVP was not a CDS in New Jersey when the undercover buys occurred. We
disagree for two reasons.
First, the amendments to N.J.S.A. 2C:35-5.3a(a) and N.J.S.A. 2C:35-
10.3a(a) were not retrospective and did not need to be for defendant to be
convicted of distribution of alpha-PVP on September 26 and October 9, 2014.
As we have already discussed, alpha-PVP was a Schedule I CDS under both
federal and New Jersey law as of April 6, 2014, and remained so thereafter.
A-0516-16T4
28
Nicolas, ___ N.J. Super. at ___ (slip op. at 5). The regulatory scheme afforded
defendant adequate notice that alpha-PVP was a CDS when he distributed it to
Detective Lucariello. In fact, defendant admitted he knew it was illegal to do
so at the time the crime was committed. Even if he did not know alpha-PVP
was a CDS, "ignorance of the law is no defense." State v. Lisa, 391 N.J. Super.
556, 579 (App. Div. 2007) (citing State v. W. Union Tel. Co., 12 N.J. 468, 493-
94 (1953)).
Second, defendant was not charged with or convicted for violating
N.J.S.A. 2C:35-5.3a(a) or N.J.S.A. 2C:35-10.3a(a). He was charged with and
convicted for violating N.J.S.A. 2C:35-5a(1) and 2C:35-5b(13). Distribution of
the quantity of alpha-PVP sold to the undercover detective was already a third-
degree crime on the dates of the two sales. Accordingly, defendant was not
subjected to a greater penalty as a result of the subsequent amendments to
N.J.S.A. 2C:35-5.3a(a) or N.J.S.A. 2C:35-10.3a(a).
The possibility that the Legislature may have mistakenly assumed alpha-
PVP was not already a CDS when it amended N.J.S.A. 2C:35-5.3a(a) and
N.J.S.A. 2C:35-10.3a(a) does not change the outcome. Such a mistaken premise
may have flowed from the fact that alpha-PVP was not an expressly listed
substance in the pre-amendment version of those statutes, without considering
A-0516-16T4
29
the long-standing procedure for how DEA-scheduled substances become CDS
in New Jersey. Indeed, the Statement accompanying the amendments to those
statutes acknowledges: "The U.S. Drug Enforcement Administration
temporarily scheduled alpha-pyrrolidinopentiophenone (alpha-PVP) into
Schedule I of the Controlled Substances Act on March 7, 2014." Sponsor's
Statement to A. 2176 (L. 2017, c. 209). The adoption of the amendments only
reinforced what was already prohibited in this State under the law.
B.
Defendant also argues the trial court erred by not dismissing counts one
through four of the indictment because: (1) the prosecutor did not properly
charge the grand jury; (2) the indictment did not adequately advise defendant of
the charges against him; and (3) the use of the term "and/or" in count four
renders his conviction for that charge improper (not raised below).
"Once the grand jury has acted, an 'indictment should be disturbed only
on the clearest and plainest ground,' and only when the indictment is manifestly
deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996)
(citation omitted) (quoting State v. Perry, 124 N.J. 128, 168 (1991)). "[T]he
decision whether to dismiss an indictment lies within the discretion of the trial
court, State v. McCrary, 97 N.J. 132, 144 (1984), and that exercise of
A-0516-16T4
30
discretionary authority ordinarily will not be disturbed on appeal unless it has
been clearly abused." Hogan, 144 N.J. at 229. However, we review the trial
court's legal conclusions de novo. Nash, 212 N.J. at 540-41 (citing Harris, 181
N.J. at 415-16).
Although "[a] prosecutor is obligated to charge the grand jury as to the
elements of specific offenses," State v. Triestman, 416 N.J. Super. 195, 205
(App. Div. 2010), "a prosecutor's decision on how to instruct a grand jury will
constitute grounds for challenging an indictment only in exceptional cases," Id.
at 202 (citing State v. Hogan, 336 N.J. Super. 319, 344 (App. Div. 2001)).
"Incomplete or imprecise grand-jury instructions do not necessarily warrant
dismissal of an indictment; rather, the instructions must be 'blatantly wrong.'"
Id. at 205 (quoting Hogan, 336 N.J. Super. at 344).
The State argues defendant waived any objection to the indictment
because he entered an open and unconditional guilty plea to all the charges. We
agree.
"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)). "A plea of guilty amounts to a waiver of all issues,
A-0516-16T4
31
including constitutional claims, that were or could have been raised in prior
proceedings." State v. Marolda, 394 N.J. Super. 430, 435 (App. Div. 2007)
(citing Tollett v. Henderson, 411 U.S. 258, 267 (1973) (finding "a guilty plea
represents a break in the chain of events which has preceded" it and concluding
a defendant who "has solemnly admitted in open court that he is in fact guilty
of the offense . . . may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred" prior to plea entry)).
Our rules provide three exceptions to the general rule of waiver.
Notwithstanding entry of a guilty plea, a defendant may appeal: (1) from the
denial of a motion to suppress evidence obtained as the result of an allegedly
unlawful search and seizure, Rule 3:5-7(d); (2) from the denial of an application
for admission into a pretrial intervention program, Rule 3:28-6(d); and (3) with
consent of the court and approval of the prosecutor, from any other pretrial order
when the issue is preserved by entry of a conditional plea, Rule 3:9-3(f). State
v. Smith, 307 N.J. Super. 1, 8 (App. Div. 1997). Those exceptions do not permit
a challenge to non-jurisdictional defects in grand jury proceedings. Marolda,
394 N.J. Super. at 435 (citations omitted).
Defendant's plea was unconditional, and the issue concerning the denial
of his motion to dismiss the indictment was not preserved under Rule 3:9-3(f).
A-0516-16T4
32
Accordingly, those issues are waived. In any event, the indictment is not
"manifestly deficient or palpably defective." Hogan, 144 N.J. at 229. We
discern no clear abuse of discretion, much less plain error.
C.
1.
Defendant contends he was medically unfit to stand trial due to a "chronic
heart ailment" that resulted in hospitalization and treatment prior to jury
selection. Defendant initially claimed he had suffered a heart attack. His
medical records confirmed, however, that he did not suffer a heart attack. The
trial court concluded it "was an effort to delay the proceedings."
Whether to grant an adjournment of trial due to a defendant's health
difficulties is a matter within the discretion of the trial court. State v.
McLaughlin, 310 N.J. Super. 242, 259 (App. Div. 1998); State v. Kaiser, 74 N.J.
Super. 257, 271 (App. Div. 1962). The trial court's decision "will not be deemed
reversible error absent a showing of an abuse of discretion which caused
defendant a 'manifest wrong or injury.'" McLaughlin, 310 N.J. Super. at 259
(quoting State v. Furguson, 198 N.J. Super. 395, 402 (App. Div. 1985)).
According to the Kaiser court:
Among those factors deserving consideration by the
court in the exercise of its discretion are medical
A-0516-16T4
33
reports, personal observation of the accused, the effect
of a continuance upon the State's ability to produce
evidence at a subsequent date, and whether or not the
accused will be better able to stand trial at a later time.
[74 N.J. Super. at 271.]
We also consider "the clarity of the accused's testimony at trial and the
conduct of the trial court in granting defendant periods of rest whenever . . .
requested." Ibid. (citing State v. Pierce, 27 P.2d 1087, 1088 (Wash. 1933)).
Defendant had been discharged from the hospital prior to the start of trial.
He relied on an unsworn note and letter from his treating physician. The trial
court indicated it would require live testimony from defendant's physician to
further postpone the trial. Defendant did not offer such testimony or indicate he
was unable to do so.
Defendant's claim he was medically unfit to stand trial is refuted by the
trial record and the transcript of the plea hearing. After being sworn, defendant
testified during the plea hearing that he was taking aspirin and nitroglycerin.
When asked if the medications affected his ability to think clearly, defendant
answered, "I don't think so." When asked if he was thinking clearly that day,
defendant answered, "I believe so." When asked if he had any disability or
condition which impaired his judgment, defendant stated: "I'm under medical
treatment right now, Your Honor, but it's not to impair my judgment." When
A-0516-16T4
34
asked whether he understood what he was doing today, defendant replied, "Yes,
sir."
We discern no abuse of discretion by the trial court in denying defendant's
request to further adjourn the trial. Defendant has not demonstrated that he
suffered a manifest wrong or injury.
2.
Defendant argues the trial court violated his Sixth Amendment right to
counsel of his choice by insisting the trial proceed without further delay. We
are unpersuaded by this argument.
The Sixth Amendment "entitles 'a defendant who does not require
appointed counsel to choose who will represent him.'" State v. Kates, 426 N.J.
Super. 32, 43 (App. Div. 2012), aff'd, Kates, 216 N.J. 393 (2014) (quoting
United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006)). However, a
defendant's right to counsel of choice "is not absolute" and may be balanced
against other issues, including the demands of the court's calendar. Id. at 45. A
deprivation of the right to counsel of choice "occurs only when the court
mistakenly exercises its discretion and erroneously or arbitrarily denies a
continuance to retain chosen counsel." Id. at 47.
A-0516-16T4
35
In exercising its discretion, a trial court should consider the following
factors outlined in Furguson:
[T]he length of the requested delay; whether other
continuances have been requested and granted; the
balanced convenience or inconvenience to the litigants,
witnesses, counsel, and the court; whether the requested
delay is for legitimate reasons, or whether it is dilatory,
purposeful, or contrived; whether the defendant
contributed to the circumstance which gives rise to the
request for a continuance; whether the defendant has
other competent counsel prepared to try the case,
including the consideration of whether the other
counsel was retained as lead or associate counsel;
whether denying the continuance will result in
identifiable prejudice to defendant's case, and if so,
whether this prejudice is of a material or substantial
nature; the complexity of the case; and other relevant
factors which may appear in the context of any
particular case.
[198 N.J. Super. at 402 (quoting and adopting analysis
of United States v. Burton, 584 F.2d 485, 490-91 (D.C.
Cir. 1978)).]
"Trial judges retain considerable latitude in balancing the appropriate
factors." Kates, 216 N.J. at 397 (citing State v. Hayes, 205 N.J. 522, 537-39
(2011)). "They can weigh a defendant's request against the need 'to control [the
court's] calendar and the public's interest in the orderly administration of
justice.'" Ibid. (alteration in original) (quoting Furguson, 198 N.J. Super. at
402). The Court underscored "that only if a trial court summarily denies an
A-0516-16T4
36
adjournment to retain private counsel without considering the relevant factors,
or abuses its discretion in the way it analyzes those factors, can a deprivation of
the right to choice of counsel be found." Ibid. The Court "[did] not suggest that
a lengthy factual inquiry is required." Ibid. (citing Kates, 426 N.J. Super. at 53).
Applying those factors, we are satisfied that the trial court did not
mistakenly exercise its discretion by denying defendant's request for a trial
adjournment and did not violate his Sixth Amendment rights. The record shows
that on the day of jury selection, defendant sought to postpone the trial to retain
a certified criminal trial attorney. This request came after defendant
unsuccessfully sought a postponement based on his medical condition. It also
came after the court had already heard and decided the State's in limine motion.
The trial court concluded defendant's intent was to delay. Trial counsel is
an experienced attorney. He was defendant's third attorney. Another attorney
assisted in the appellate filings and was present during the hearing on the State 's
in limine motion. Defendant consulted with an additional attorney, John Morris,
during the discussion of pleading open. The court also identified another
member of the defense team. The assembled defense team apparently consulted
with defendant during the State's case-in-chief, the open plea discussions, and
A-0516-16T4
37
the plea hearing. He then obtained new counsel for the motion to withdraw the
guilty plea and sentencing.
Here, unlike in Kates, defendant did not learn on the first day of jury
selection that his lead trial counsel expected to be deployed on active duty in the
military. 216 N.J. at 394-95. Trial counsel was not new to the case despite the
multitude of counsel. Accordingly, defendant has not demonstrated prejudice.
We discern no error or abuse of discretion by the trial court in denying
defendant's request to adjourn the trial to retain new trial counsel.
D.
Defendant contends the evidence seized from his residence should be
suppressed because the search warrant affidavit did not establish probable cause
to search his residence. He argues no sales occurred at his house and no
surveillance connected his residence to the undercover buys.
Defendant acknowledges the search warrant affidavit stated that defendant
was observed arriving in his Jeep at a location on Shore Road for the first
undercover buy, and was then seen returning to his residence. Defendant
counters that no one saw him leave his residence on his way to either controlled
buy.
A-0516-16T4
38
"[A]n appellate court reviewing a motion to suppress 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) (citations omitted). The "findings of the trial judge
. . . are substantially influenced by his [or her] opportunity to hear and see the
witnesses and to have the 'feel' of the case, which a reviewing court cannot
enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson,
42 N.J. 146, 161 (1964)). We should disturb the trial court's findings "only if
they are so clearly mistaken 'that the interests of justice demand intervention
and correction.'" Elders, 192 N.J. at 244 (quoting Johnson, 42 N.J. at 162).
However, we do not defer to the trial court's legal interpretations. State v.
Gamble, 218 N.J. 412, 425 (2014).
The Warrant Clause of the Fourth Amendment "provides that 'no Warrants
shall issue except upon probable cause, supported by Oath or affirmation .'"
State v. Gathers, 234 N.J. 208, 220 (2018) (quoting U.S. Const. amend. IV;
accord N.J. Const. art. I, ¶ 7).
"It is well settled that a search executed pursuant to a warrant is presumed
to be valid and . . . a defendant challenging its validity has the burden to prove
'that there was no probable cause supporting the issuance of the warrant or that
A-0516-16T4
39
the search was otherwise unreasonable.'" State v. Jones, 179 N.J. 377, 388
(2004) (citation omitted). "[S]ubstantial deference must be paid by a reviewing
court to the determination of the judge who has made a finding of probable cause
to issue a search warrant." State v. Evers, 175 N.J. 355, 381 (2003). Any
"[d]oubt as to the validity of the warrant 'should ordinarily be resolved by
sustaining the search.'" State v. Keyes, 184 N.J. 541, 554 (2005) (quoting Jones,
179 N.J. at 389).
We "accord substantial deference to the discretionary determination
resulting in the issuance of the [search] warrant." State v. Boone, 232 N.J. 417,
427 (2017) (alteration in original) (quoting Jones, 179 N.J. at 388). Our role is
to determine whether the warrant application presented sufficient evidence for
a finding of probable cause to search the location for the items sought. State v.
Chippero, 201 N.J. 14, 32 (2009).
"The application for a warrant must satisfy the issuing authority 'that there
is probable cause to believe that a crime has been committed, or is being
committed, at a specific location or that evidence of a crime is at the place sought
to be searched.'" Boone, 232 N.J. at 426 (quoting Jones, 179 N.J. at 388). The
probable cause inquiry requires courts to "make a practical, common sense
determination whether, given all of the circumstances, there is a fair probability
A-0516-16T4
40
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)).
Defendant ignores the totality of the circumstances, which is the
appropriate measuring stick for whether a warrant was based on probable cause.
Gathers, 234 N.J. at 221; see also Jones, 179 N.J. at 389 (noting that a court
"must consider the totality of the circumstances" in determining if there is
probable cause for a search). While the investigating officers did not observe
defendant leave his house before embarking to either of the undercover buys,
based on the totality of the other circumstances presented in the supporting
affidavit, there are facts supporting "a practical, common sense determination"
that "there [was] a fair probability that contraband or evidence of a crime" would
be found in defendant's vehicle and residence located just down the road from
the location of the controlled buys. Marshall, 199 N.J. at 610 (quoting O'Neal,
190 N.J. at 612). The affidavit explained the undercover operation involving
surveillance and undercover buys from defendant. Defendant was observed
traveling to and from the undercover buys in his Jeep, registered in his name at
his residence. He was observed leaving the scene and returning to his residence
A-0516-16T4
41
after the September 2014 undercover buy. Investigators were able to verify
defendant's address through both motor vehicle and parole records.
The search warrant affiant explained, based upon his knowledge, training,
and experience, it was common for drug dealers to conduct transactions at a pre-
arranged location and store their drugs and cash at home or in their vehicle. The
affiant officer then confirmed his statement during his testimony at the
suppression hearing. The trial court noted the testifying affiant was under oath
and found him credible. The court also found, "it's not an unreasonable leap –
Indeed, not a leap at all – to suggest that the residence [on] South Shore Road,
held other indicia of illegal activity."
The circumstances detailed in the affidavit support the search warrant
court's determination there was a fair probability evidence of a crime would be
found in defendant's vehicle and at his residence on South Shore Road. We
affirm the trial court's denial of defendant's motion to suppress.
E.
Last, we address defendant's contention that the trial court improperly
sentenced him to an excessive term by imposing three consecutive terms on the
A-0516-16T4
42
convictions for distribution and possession with intent to distribute CDS. 8
Defendant does not argue that the length of any of the individual terms imposed
is excessive.
Defendant argues the trial court misapplied the Yarbough9 factors when it
found it was "'undisputable' that the crimes were independent of each other,
committed on different days, different times." He contends the CDS offenses
were similar in nature and close in time. The two distribution offenses involved
the same undercover officer and occurred thirteen days apart at the same meeting
place. The possession offense involved similar CDS inside defendant 's house
one week later.
"[Our] review of sentencing decisions is relatively narrow and is governed
by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297
(2010). We consider whether the trial court has made findings of fact grounded
in "reasonably credible evidence," whether the factfinder applied" correct legal
8
Defendant acknowledges that N.J.S.A. 2C:39-4.1(d) mandates that the
sentence imposed on his conviction for possession of a firearm while committing
certain CDS offenses "shall be ordered to be served consecutively to that
imposed for any conviction for a violation of any of the sections of chapter 3 5"
enumerated in N.J.S.A. 2C:39-4.1(a). N.J.S.A. 2C:35-5 is one of the chapter 35
offenses enumerated in N.J.S.A. 2C:39-4.1(a).
9
State v. Yarbough, 100 N.J. 627 (1985).
A-0516-16T4
43
principles in exercising . . . discretion," and whether "application of the facts to
the law [has resulted in] a clear error of judgment" and to sentences that "shock
the judicial conscience." State v. Roth, 95 N.J. 334, 363-65 (1984) (citations
omitted). We review a trial judge's findings as to aggravating and mitigating
factors to determine whether the factors are based on competent, credible
evidence in the record. Id. at 364. "To facilitate meaningful appellate review,
trial judges must explain how they arrived at a particular sentence." State v.
Case, 220 N.J. 49, 65 (2014); see R. 3:21-4(g).
Pursuant to N.J.S.A. 2C:44-5(a), when a defendant receives multiple
sentences of imprisonment "for more than one offense, . . . such multiple
sentences shall run concurrently or consecutively as the court determines at the
time of sentence." N.J.S.A. 2C:44-5(a) does not state when consecutive or
concurrent sentences are appropriate. In Yarbough, the Court set forth the
following guidelines:
(1) there can be no free crimes in a system for which
the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or
concurrent sentence should be separately stated in the
sentencing decision;
(3) some reasons to be considered by the sentencing
court should include facts relating to the crimes,
including whether or not:
A-0516-16T4
44
(a) the crimes and their objectives were
predominately independent of each other;
(b) the crimes involved separate acts of violence
or threats of violence;
(c) the crimes were committed at different times
or separate places, rather than being committed
so closely in time and place as to indicate a single
period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to
be imposed are numerous;
(4) there should be no double counting of aggravating
factors;
(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense[.]
[100 N.J. at 643-44 (footnote omitted).]
What had been guideline six was superseded by a 1993 amendment to
N.J.S.A. 2C:44-5(a), which provides "[t]here shall be no overall outer limit on
the cumulation of consecutive sentences for multiple offenses." 10
The Yarbough guidelines leave a "fair degree of discretion in the
sentencing courts." State v. Carey, 168 N.J. 413, 427 (2001). "[A] sentencing
10
Lans. Ch. 1993, c. 223, § 1.
A-0516-16T4
45
court may impose consecutive sentences even though a majority of the Yarbough
factors support concurrent sentences," id. at 427-28, but the court must state its
reasons for imposing consecutive sentences, and when a court fails to do so,
remand is needed in order for the court to place its reasoning on the record, State
v. Miller, 205 N.J. 109, 129 (2011). When a trial court imposes a consecutive
sentence, "[t]he focus should be on the fairness of the overall sentence." State
v. Abdullah, 184 N.J. 497, 515 (2005).
Here, the crimes did not involve acts of violence or multiple victims. The
crimes were committed within about three weeks. Defendant was being
sentenced on five counts. The court imposed the same four-year term on counts
one and two. The trial court did not discuss or weigh Yarbough factors 3(b),
3(c), 3(d), 3(e), and 5 to the facts of this case. We conclude that a remand for
resentencing is compelled. On remand, the trial court shall consider those
factors and provide reasons for the imposition of five consecutive sentences and
the same sentence on counts one and two. The court's "focus should be con the
fairness of the overall sentence." Abdullah, 184 N.J. at 515 (quoting State v.
Miller, 108 N.J. 112, 122 (1987)).
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F.
Defendant's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part and remanded in part for further proceedings consistent
with this opinion. We do not retain jurisdiction.
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