STATE OF NEW JERSEY VS. TERRELL E. CURRY, JR. (16-08-1275, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1134-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TERRELL E. CURRY, JR.,
Defendant-Appellant.
__________________________
Submitted September 30, 2020 – Decided November 13, 2020
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 16-08-
1275.
Joseph E. Krakora, Public Defender, attorney for
appellant (Scott M. Welfel, Assistant Deputy Public
Defender, of counsel and on the briefs).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Patrick F. Galdieri, II,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Terrell Curry, Jr. was arrested on suspicion of driving while
intoxicated. In a search of his person incident to his arrest, he was found to be
in possession of two handguns. His motion to suppress the seizure of the guns
was denied and he pled guilty to two counts of second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b). Defendant also pled guilty to
two other crimes arising out of separate incidents: second-degree unlawful
possession of an assault firearm, N.J.S.A. 2C:39-5(f); and third-degree theft by
unlawful taking, N.J.S.A. 2C:20-3(a).
On the convictions for unlawful possession of the handguns, defendant
was sentenced to concurrent prison terms of six years with forty-two months of
parole ineligibility as prescribed by the Graves Act, N.J.S.A. 2C:43-6(c). On
the conviction for possession of an assault firearm, defendant was sentenced to
a consecutive prison term of five years with forty-two months of parole
ineligibility as prescribed by the Graves Act. On the conviction for theft,
defendant was sentenced to three years in prison. That sentence was run
concurrent to his sentence for the convictions of the unlawful possession of the
handguns.
Defendant argues that there was no probable cause for his arrest and his
motion to suppress the seizure of the handguns should have been granted. We
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disagree and affirm his convictions. Defendant also contends that his sentence
was excessive because the court failed to find a mitigating factor, erred in
finding an aggravating factor, and failed to properly analyze the consecutive
sentences. We also disagree with those arguments and affirm his sentence.
I.
In this appeal, defendant challenges his convictions for unlawful
possession of two handguns. Those charges arose out of defendant's arrest in
March 2015 for driving while intoxicated. On the morning of March 5, 2015,
the car defendant was driving struck a guardrail on Interstate Highway 287.
An evidentiary hearing was conducted on defendant's motion to suppress
on September 21, 2017. One witness testified at that hearing: New Jersey State
Police Trooper Hector Rodriguez. The State also submitted into evidence a
DVD with video footage copied from the mobile video recorder (MVR) on the
trooper's vehicle.
Rodriguez testified that on March 5, 2015, just after 8 a.m., he received a
report of a motor vehicle accident near exit 10 on the northbound side of
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Interstate 287.1 He responded and when he arrived two Piscataway police
officers and EMTs with an ambulance were already at the scene.
Rodriguez spoke to the police officers and surveyed the scene. He saw a
Mercury Mountaineer, which had struck a guardrail and sustained front-end
damage. He noted that no other vehicle was involved in the accident.
Rodriguez learned that there had been a driver and six passengers in the
Mountaineer. The six passengers were already in the ambulance and Rodriguez
was informed that some of them were complaining of injuries. Rodriguez
observed that the driver was outside the vehicle walking around. He later
learned that the driver was defendant. Rodriguez approached and spoke with
defendant. He testified he detected an odor of alcohol coming from defendant's
mouth and observed that defendant had "bloodshot watery eyes with droopy
lids." He also thought defendant's speech was slow and slurred.
Rodriguez asked defendant what happened and defendant responded that
he had been driving in the center lane, tried to take exit 10, which was to the
right, he lost control of the vehicle, and it hit the guardrail. Defendant also told
Rodriguez that he had been drinking at a party the night before.
1
During questioning, the date of the incident was occasionally erroneously
referred to as March 3, 2015. In his testimony, Rodriguez stated that the incident
occurred on March 5, 2015. The MVR bears a date-stamp of March 5, 2015.
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Rodriguez then directed defendant to perform two field sobriety tests: the
walk and turn test and the one-leg-stand test. During Rodriguez's testimony, the
State introduced the MVR video into evidence and played it.
Rodriguez testified that defendant did not pass or fail either test but
displayed certain clues that caused him to suspect that defendant had been
driving while intoxicated. Rodriguez went on to explain that based on the
totality of the circumstances he observed at the scene of the accident, he believed
he had probable cause to arrest defendant for driving while intoxicated.
Accordingly, defendant was placed under arrest. Rodriguez advised
defendant of his Miranda2 rights. He then asked defendant if he had anything
on him that could harm Rodriguez. Defendant responded that he had two guns,
one in his right pants' pocket and another in his left front pants' pocket.
Defendant was searched and found to possess two loaded handguns, a revolver
and a semi-automatic pistol.
Thereafter, defendant was taken to "headquarters" where he was strip-
searched. During that search, defendant was found to be in possession of
twenty-three pills that were later confirmed to be Oxycodone. Sometime
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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between 10 a.m. and 11 a.m. that same day, defendant was given a breathalyzer
test and his results revealed that he had a blood alcohol concentration of 0.07%.
Following the testimony by Rodriguez, counsel presented oral arguments
on the motion to suppress. The motion court then reserved decision. On October
20, 2017, the court issued a written opinion and order denying the motion to
suppress the seizure of the two handguns.
The court found that there was probable cause to arrest defendant on
suspicion of driving while intoxicated and the search incident to his arrest was
lawful. Analyzing the arrest, the court found that defendant had admitted to
consuming alcohol before the accident, his breath smelled of alcohol after the
accident, and there was no evidence that the accident was caused by anything
other than defendant losing control of the vehicle. The court found that those
facts, when considered in the totality of the circumstances, gave rise to probable
cause to believe that defendant had been driving while intoxicated.
In making its findings, the court did not credit Rodriguez's testimony that
defendant had slow or slurred speech. Instead, the court reviewed the MVR
video and found that defendant's speech was not slow or slurred.
The court also found that defendant had not failed the field sobriety tests.
Instead, the court found that there was conflicting evidence as to whether the
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tests were properly administered and, accordingly, the court did not rely on
them.
Finally, the court found that the search of defendant's person was lawful
because it was conducted incident to his arrest. The court also found that the
Oxycodone pills were lawfully seized because those pills would have inevitably
been found during an inventory search of defendant's property following his
arrest.
In connection with his arrest in March 2015 and the seizure of the
handguns, defendant was charged with nine crimes: two counts of second-degree
unlawful possession of a weapon; three counts of fourth-degree assault by auto,
N.J.S.A. 2C:12-1(c)(2); three counts of fourth-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(3); and third-degree possession of Oxycodone without a
prescription, N.J.S.A. 2C:35-10(a)(1).
Defendant was also charged with multiple other crimes under two
indictments arising out of separate incidents. Under one of those separate
indictments, defendant was charged with three third-degree theft-related
offenses. Under the other indictment, defendant and eight other co-defendants
were charged with numerous drug and weapons-related offenses.
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Following the denial of his motion to suppress the seizure of the handguns,
defendant entered into a plea agreement to resolve the charges in all three
indictments. He pled guilty to two counts of unlawful possession of a handgun,
one count of theft, and one count of unlawful possession of an assault firearm.
As part of the plea agreement, the State agreed to dismiss all the other charges
and to recommend that he be sentenced to three years in prison for the theft
conviction, six years in prison for the unlawful possession of the handguns, and
six years in prison for the unlawful possession of the assault firearm. Defendant
was sentenced consistent with the recommendation made in the plea agreement.
II.
On appeal, defendant challenges his convictions for the possession of the
handguns and his sentence. He articulates his arguments as follows:
POINT I – BECAUSE THE STATE FAILED TO
ESTABLISH PROBABLE CAUSE TO ARREST
CURRY FOR DRIVING WHILE INTOXICATED,
THE FRUITS OF THE SUBSEQUENT
WARRANTLESS SEARCH SHOULD HAVE BEEN
SUPPRESSED.
A. The Accident, Admission to Having a Drink At
Least Eight Hours Earlier, and Slight Smell of
Alcohol on the Breath Did Not Add Up to a "Well
Grounded Suspicion" that Curry Was "So
Affected In Judgment Or Control As To Make It
Improper For Him To Drive."
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B. The Judge Erred in Finding that the Accident
"Occurred For No Explainable Reason Other
Than Defendant's Mishandling Of His Vehicle"
and in Finding that Curry's Breath Smelled of
Alcohol.
i. The Judge's Finding that the Accident
"Occurred For No Explainable Reason
Other Than Defendant's Mishandling Of
His Vehicle" Was Clearly Mistaken and
Not Supported by Sufficient Credible
Evidence.
ii. The Judge's Finding that Rodriguez
Smelled Alcohol on Curry's Breath Was
Not Supported by Sufficient Credible
Evidence.
POINT II – THE TRIAL COURT ERRED IN FAILING
TO FIND MITIGATING FACTOR 11, FINDING
AGGRAVATING FACTOR 9, AND IN FAILING TO
CONDUCT A FULL YARBOUGH ANALYSIS.
A. Because there was Ample Evidence in the Record
that Curry's Incarceration Would Be an
Excessive Hardship to Curry's Five Children, the
Court Erred in Failing to Find Mitigating Factor
11.
B. Because the Court Found that Having Children
Had Already Deterred Curry from Committing
New Criminal Acts, the Court Erred in Finding
Aggravating Factor 9.
C. In Failing to Consider the Overall Length of the
Aggregate Sentence Before Deciding Whether to
Impose a Consecutive Sentence, the Court Failed
to Conduct a Full Yarbough Analysis.
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We are not persuaded by any of these arguments.
A. The Seizure of the Handguns
Defendant argues that Rodriguez did not have probable cause to arrest him
and, therefore, the guns seized incident to his unlawful arrest should have been
suppressed. We disagree.
Appellate review of a denial of a motion to suppress physical evidence
following an evidentiary hearing is limited. Factual findings made by the trial
court will be disturbed only when they are not supported by sufficient credible
evidence in the record. State v. Hagans, 233 N.J. 30, 37 (2018) (quoting State
v. Gamble, 218 N.J. 412, 424 (2014)). This deference is required "because those
findings 'are substantially influenced by [an] opportunity to hear and see the
witnesses and to have the "feel" of the case, which a reviewing court cannot
enjoy.'" Gamble, 218 N.J. at 424-25 (alteration in original) (quoting State v.
Johnson, 42 N.J. 146, 161 (1964)). Accordingly, we reverse "only when the trial
court's determination is 'so clearly mistaken that the interests of justice demand
intervention and correction.'" Hagans, 233 N.J. at 37-38 (quoting Gamble, 218
N.J. at 425). The same deferential standard applies to appellate review of
findings based on video-recorded evidence. Id. at 38. We review the trial court's
legal determinations de novo. Ibid. (citing Gamble, 218 N.J. at 425).
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The United States Constitution and the New Jersey Constitution protect
individuals from "'unreasonable searches and seizures' by government officials."
Ibid. (quoting State v. Watts, 223 N.J. 503, 513 (2015)). A warrantless search
is presumptively unreasonable. Ibid. To overcome this presumption, the State
must prove by a preponderance of the evidence that the search fell "within one
of the few well-delineated exceptions to the warrant requirement." Id. at 38-39
(quoting State v. Bryant, 227 N.J. 60, 69-70 (2016)). One such exception is a
search incident to a lawful arrest. State v. Minitee, 210 N.J. 307, 318 (2012).
The validity of a search incident to an arrest depends on whether there was
probable cause to arrest defendant. See State v. Dangerfield, 171 N.J. 446, 456
(2002). Probable cause exists where there is "'well grounded' suspicion that a
crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211
(2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). It "must be something
more than a raw, unsupported suspicion, [but] it may be something less than the
proof needed to convict." State in the Interest of A.D., 212 N.J. 200, 220 (2012)
(alteration in original) (quoting State in the Interest of B.G., 247 N.J. Super.
403, 409 (App. Div. 1991)). Accordingly, "[a] showing of probable cause 'is
not a high bar.'" State v. Hemenway, 239 N.J. 111, 136-37 (2019) (quoting State
v. Pinkston, 233 N.J. 495, 509 (2018)).
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"In determining whether there was probable cause to make an arrest, a
court must look to the totality of the circumstances and view those circumstances
'from the standpoint of an objectively reasonable police officer.'" State v. Basil,
202 N.J. 570, 585 (2010) (citations omitted). "Thus, although several factors
considered in isolation may not be enough, cumulatively those pieces of
information may 'become sufficient to demonstrate probable cause.'" State v.
Daniels, 393 N.J. Super. 476, 486 (App. Div. 2007) (quoting State v. Zutic, 155
N.J. 103, 113 (1998)).
Probable cause to make an arrest for driving while intoxicated exists when
an arresting officer has reasonable grounds to believe that a driver is in a
condition that "so affects the judgment or control of a motor vehicle operator as
to make it improper for him to drive on the highway." State v. Bealor, 187 N.J.
574, 589 (2006) (quoting State v. Tamburro, 68 N.J. 414, 421 (1975)). As with
any arrest, whether probable cause exists to arrest an individual for driving while
intoxicated "is a fact-sensitive inquiry." State in the Interest of A.D., 212 N.J.
at 217; see also State v. Jones, 437 N.J. Super. 68, 75 (App. Div. 2014) (noting
smell of alcohol emanating from driver's breath and bloodshot eyes post -
accident established probable cause).
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The motion court here found that Rodriguez had probable cause to arrest
defendant on suspicion of driving while intoxicated. As already noted, the court
based that finding on the totality of the circumstances, which included that a
single-car accident had taken place, defendant's breath smelled of alcohol, and
defendant admitted that he had been drinking alcohol at a party the night before.
Those findings are all supported by substantial credible evidence in the record
and we discern no error in the court's conclusion that those facts constituted
probable cause.
Defendant takes issue with each of the components of the motion court's
finding of probable cause. In that regard, defendant argues that the court's
reliance on the one-car accident was a mistake, which was not supported by
sufficient credible evidence. Defendant also challenges the sufficiency of the
finding that defendant's breath smelled of alcohol.
The only witness who testified at the suppression hearing was Trooper
Rodriguez. He clearly did not credit defendant's explanation of how the accident
occurred. Accordingly, the trial court was not required to accept the explanation
provided by defendant to Rodriguez. Without that explanation there was no
explanation for how the accident occurred.
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Rodriguez testified that defendant's breath smelled of alcohol. While the
court never made an express credibility finding, the court clearly relied on
Rodriguez's testimony concerning the smell. Furthermore, defendant's
admission that he had been drinking at a party is another fact supporting a
finding of probable cause.
The court correctly ruled that because the arrest of defendant was lawful,
the search incident to his arrest was also lawful. Indeed, defendant does not
challenge the validity of the actual search. Accordingly, we discern no basis to
reverse the denial of the motion to suppress.
B. The Sentence
Defendant challenges his sentence, contending that the sentencing court
erred in (1) failing to find mitigating factor eleven - - imprisonment would entail
excessive hardship to defendant's dependents; (2) finding aggravating factor
nine - - the need to deter defendant and others from engaging in criminal activity;
and (3) failing to conduct a full analysis before imposing consecutive sentences.
We reject these arguments and affirm the sentence.
We review sentencing determinations under a deferential standard. State
v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606
(2013)). We do not "substitute [our] judgment for the judgment of the
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sentencing court." Lawless, 214 N.J. at 606 (first citing State v. Cassady, 198
N.J. 165, 180 (2009); and then citing State v. O'Donnell, 117 N.J. 210, 215
(1989)). Instead, we will affirm a sentence unless
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[State v. Miller, 237 N.J. 15, 28 (2019) (alteration in
original) (quoting State v. Fuentes, 217 N.J. 57, 70
(2014)).]
When sentencing a defendant for multiple offenses, "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). In State v. Yarbough, 100 N.J. 627,
643-44 (1985), our Supreme Court established criteria that a sentencing court
must consider when deciding whether to impose consecutive sentences.
Namely, the court must evaluate whether
(a) the crimes and their objectives were predominantly
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
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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
....
[Id. at 644.]
"The Yarbough factors are qualitative, not quantitative; applying them involves
more than merely counting the factors favoring each alternative outcome." State
v. Cuff, 239 N.J. 321, 348 (2019) (first citing State v. Molina, 168 N.J. 436, 442-
43 (2001); and then citing State v. Carey, 168 N.J. 413, 427-28 (2001)).
"When a sentencing court properly evaluates the Yarbough factors in light
of the record, the court's decision will not normally be disturbed on appeal."
State v. Miller, 205 N.J. 109, 129 (2011) (citing Cassady, 198 N.J. at 182).
Nevertheless, when a sentencing court fails to explain its decision to impose
consecutive sentences a remand is generally required for the judge to provide an
explanation on the record. Ibid. (citations omitted).
In sentencing defendant, the court considered the various aggravating and
mitigating factors and then found applicable aggravating factors three and nine
and mitigating factor ten on all counts. N.J.S.A. 2C:44-1(a)(3), (a)(9), (b)(10).
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On the conviction for theft, the court also applied mitigating factor six because
defendant was ordered to pay restitution. N.J.S.A 2C:44-1(b)(6). The court
considered defendant's arguments for mitigating factors seven, eleven , and
thirteen, but declined to apply them.
In evaluating mitigating factor eleven, the court acknowledged that
defendant had several children who he claimed were dependent. Nevertheless,
the court found that there was no extraordinary hardship because there was no
evidence that defendant was the sole caretaker for any of the children or that the
children had special needs.
The court also laid out its reasons for finding aggravating factor nine,
explaining that defendant's multiple crimes showed a clear need to deter
defendant and others from violating the law. Our review of the record satisfies
us that the court's determinations concerning the aggravating and mitigating
factors are supported by evidence in the record.
After sentencing defendant to concurrent terms of six years in prison with
three and a half years of parole ineligibility on the convictions for unlawful
possession of the handguns, the court imposed a consecutive sentence of five
years in prison with three and a half years of parole ineligibility on the
conviction for unlawful possession of the assault firearm. Both sentences were
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consistent with the sentencing guidelines. Moreover, the court had clearly
explained why a consecutive sentence was warranted. In that regard, the court
found that there were two "completely different incidents . . . happening on
completely different dates with actually different guns and different
circumstances." The court also reasoned that it "would not be appropriate to
have them run concurrent[ly]" because "there's nothing similar about the[m]."
Those findings are also supported by the record and are consistent with the
analysis required for imposing consecutive sentences.
We further note that defendant was sentenced to an aggregate of eleven
years in prison with seven years of parole ineligibility. In the plea agreement,
the State had agreed to recommend an aggregate sentence of twelve years in
prison with seven years of parole ineligibility. Accordingly, defendant was
sentenced to less time than he agreed to serve in his plea agreement. In short,
we discern no abuse of discretion or error concerning the sentence.
Affirmed.
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