STATE OF NEW JERSEY VS. JOSEPH WATSONÂ (5048, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5606-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KABAKA ATIBA, a/k/a CLARENCE BROWN,
KABAKA ATITA and KABAKA ATIDA,
Defendant-Appellant.
———————————————————————————
Submitted January 31, 2017 – Decided March 7, 2017
Before Judges Yannotti and Gilson.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Indictment No. 14-06-2075.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alicia Hubbard, Assistant
Deputy Public Defender, of counsel and on the
brief).
James P. McClain, Atlantic County Prosecutor,
attorney for respondent (Melinda A. Harrigan,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Following the denial of his motion to suppress cocaine seized
pursuant to a warrant, defendant Kabaka Atiba pled guilty to first-
degree possession of more than five ounces of cocaine with the
intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(1). In
accordance with the plea agreement, defendant was sentenced to ten
years in prison with fifty-four months of parole ineligibility.
Defendant appeals the denial of his motion to suppress and his
sentence. We affirm.
I.
Defendant's conviction arose out of a separate investigation
of the murder of a teenager. In the afternoon of January 8, 2014,
two individuals were shot. One of the victims was a teenager who
died as a result of his wounds. The police located three
witnesses. One of the witnesses reported that he had gotten into
a fight with a juvenile identified as J.F. After the fight, J.F.
threatened the witness by telling him, "you're lucky I didn't
shoot you." After J.F. walked away, the witness heard gunshots
and turned to see J.F. shoot the victims. J.F. then rode away on
a green bicycle.
As part of their investigation, police obtained an address
for J.F. While the police were applying for a warrant to search
the residence, they established a surveillance at the residence.
During the surveillance, a woman came out of the residence and
informed the police that J.F. was not there. Shortly thereafter,
the police observed a man leave the home in a GMC Yukon. Suspecting
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that the driver might be removing evidence relating to the
shootings and homicide, the police stopped the vehicle. The police
then impounded the vehicle and, while taking the vehicle to a
forensic unit, they noticed a plastic bag under the front seat.
Based on this information, the police applied for and obtained a
warrant to search the Yukon. That search revealed no evidence of
the shootings or homicide, but the police did locate over 190
grams of cocaine and two cellular phones.
A grand jury indicted defendant on six counts for (1) first-
degree possession of more than five ounces of cocaine with the
intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(1); (2)
second-degree possession of cocaine with the intent to distribute
it within 500 feet of a public housing facility, N.J.S.A. 2C:35-
7.1; (3) third-degree possession of cocaine with the intent to
distribute it within 1000 feet of a school, N.J.S.A. 2C:35-7; (4)
third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a); (5)
third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); and
(6) fourth-degree obstruction of the administration of law,
N.J.S.A. 2C:29-1.
Thereafter, defendant moved to suppress the physical evidence
found during the search of his vehicle. Neither the State nor
defendant called any witnesses. Instead, they submitted briefs,
supporting papers, and presented oral arguments. After hearing
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arguments, the trial court denied the motion finding that the
warrant authorizing the search of the vehicle was based on
sufficient probable cause. On December 17, 2014, the court issued
an order memorializing the denial of the motion.
Thereafter, on February 3, 2015, defendant entered a plea of
guilty to first-degree possession of cocaine with the intent to
distribute. In the plea agreement, the State agreed to recommend
a sentence of ten years of imprisonment with fifty-four months of
parole ineligibility. The plea also recommended that the sentence
be served concurrent to any sentence that might be imposed in a
criminal matter pending against defendant in federal court. In
that regard, the plea agreement provided that defendant's
sentencing would be postponed for a reasonable period of time to
allow defendant to address the federal charges. The plea agreement
also called for the dismissal of all remaining State charges
against defendant.
Defendant's sentencing was originally scheduled for May 2015,
but was adjourned to June 12, 2015. Defendant made a motion to
adjourn the sentencing again because the federal matter had not
yet been resolved. The sentencing judge denied that motion
reasoning that there was no indication of when the federal matter
might be resolved and the State matter had been pending sentencing
since February 2015. In making his ruling, the sentencing judge
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noted that the date for defendant's sentencing had twice been
adjourned.
Defendant was then sentenced in accordance with the plea
agreement. Specifically, as noted earlier, he was sentenced to
ten years in prison with fifty-four months of parole ineligibility.
Defendant now appeals.
II.
On appeal, defendant presents three arguments for our
consideration.
POINT I – BECAUSE THERE WAS NO PROBABLE CAUSE
TO BELIEVE THAT MR. ATIBA WAS DISPOSING OF
EVIDENCE OR THAT EVIDENCE OF THE SHOOTING
WOULD BE FOUND IN HIS VEHICLE, THE SEARCH OF
HIS AUTOMOBILE WAS UNCONSTITUTIONAL. (U.S.
CONST., AMENDS. IV AND XIV; N.J. CONST.[],
[ART.] I, [¶] 7)
POINT II – THE TRIAL COURT IMPROPERLY DENIED
THE MOTION FOR AN ADJOURNMENT OF SENTENCE
(U.S. CONST., AMENDS. IV AND XIV; N.J.
CONST.[], [ART.] I, [¶] 7)
POINT III – THE COURT FAILED TO PROPERLY
CONSIDER THE AGGRAVATING AND MITIGATING
FACTORS AND IMPOSED AN[] EXCESSIVE PERIOD OF
PAROLE INELIGIBILITY
A. The Probable Cause for the Warrant
"[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 the search was otherwise unreasonable.'"
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State v. Jones, 179 N.J. 377, 388 (2004) (quoting State v.
Valencia, 93 N.J. 126, 133 (1983)). "Accordingly, courts 'accord
substantial deference to the discretionary determination resulting
in the issuance of the [search] warrant.'" State v. Keyes, 184
N.J. 541, 554 (2005) (alteration in original) (quoting Jones,
supra, 179 N.J. at 388).
Deference to a judge's issuance of a search warrant, however,
is "not boundless." United States v. Leon, 468 U.S. 897, 914, 104
S. Ct. 3405, 3416, 82 L. Ed. 2d 677, 693 (1984). The warrant
cannot be based on an affidavit that does not "provide the
magistrate with a substantial basis for determining the existence
of probable cause." Illinois v. Gates, 462 U.S. 213, 239, 103 S.
Ct. 2317, 2332, 76 L. Ed. 2d 527, 549 (1983). Further, "probable
cause is not established by a conclusory affidavit that does not
provide a magistrate with sufficient facts to make an independent
determination as to whether the warrant should issue." State v.
Novembrino, 105 N.J. 95, 109 (1987).
In determining whether an affidavit is sufficient to support
the issuance of a warrant, our Supreme Court has explained that
usually the affidavits are prepared in the
midst and haste of criminal investigation, and
by police officers and detectives who are
lay[persons] not possessed of the expertise
in draftsmanship to be expected of a member
of the bar or bench. Consequently a common
sense approach must be taken in appraising the
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sufficiency of the factual allegations of the
affidavit on which the request for the warrant
is based. If the recitals would provide
reasonable support for the belief of a prudent
[person] that the law is being violated at a
place reasonably identified, they will be
deemed sufficient. Rigid and technical demands
for elaborate specificity and precision are
neither serviceable nor required in this area
of criminal law.
[State v. Boyd, 44 N.J. 390, 392-93 (1965)
(citations omitted).]
Defendant argues that the police did not have probable cause
to believe that his vehicle contained evidence relevant to the
shooting and murder investigation. Thus, he contends that the
officers lacked sufficient facts to support the assertion that
there was a "high probability" such evidence would be found in the
vehicle. We disagree.
The police were investigating a shooting and murder, which
had just occurred. As part of that investigation, the police
learned that the juvenile suspect was believed to be a resident
at a particular location. While surveilling that location, a
woman came out and informed them that the juvenile was not present.
It was reasonable under those circumstances for the police to
believe that they had been observed and that there was an effort
to get them to look elsewhere. Coupled with that suspicion, they
then observed defendant leave the residence. Based on the
officers' training and experience, the officers completed a search
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warrant application stating that it was likely that defendant was
leaving the residence with evidence relevant to the investigation.
The record adequately supports the determination that there was
probable cause to issue the warrant to search the vehicle.
B. The Request to Adjourn the Sentencing
"The trial court's decision to grant or deny an adjournment
is reviewed under an abuse of discretion standard." State ex rel.
Com'r of Transp. v. Shalom Money St., LLC, 432 N.J. Super. 1, 7
(App. Div. 2013) (citing State v. D'Orsi, 113 N.J. Super. 527, 532
(App. Div.), certif. denied, 58 N.J. 335 (1971)).
On February 3, 2015, defendant pled guilty to first-degree
possession of cocaine with the intent to distribute. The plea
agreement called for "reasonable sentence postponement[s]" to
allow for the disposition of defendant's pending federal charges.
Accordingly, when the plea was taken, the court initially scheduled
the sentencing for May 2015.
The sentencing was thereafter adjourned and rescheduled for
June 12, 2015. Defendant moved for a further postponement arguing
that his federal charges were still pending. The sentencing court
considered, but rejected defendant's request. In doing so, the
court noted that the sentencing had been adjourned at least twice.
The court also observed that defendant had not entered a plea in
the federal case and there was no indication whether and when he
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might do so or when the federal matter would be resolved. The
sentencing court, therefore, determined that a further adjournment
was not justified.
Defendant argues that the denial of the further adjournment
was contrary to the terms of the plea agreement. Defendant also
argues that the imposition of a state sentence before the federal
sentence may result in sentences that are not concurrent.
There is nothing in the plea agreement that guaranteed
defendant ongoing adjournments. Instead, the plea agreement
references "reasonable sentence postponements[.]" We discern no
abuse of discretion in the sentencing court's decision not to
postpone the sentence beyond June 2015, when defendant had pled
guilty four months before the sentencing took place.
There is also nothing in the plea agreement that guaranteed
defendant that his state sentence would not be imposed before the
federal sentence. While defendant now argues that it may be more
difficult for him to have his federal sentence run concurrent to
his state sentence, there is nothing that prevents the federal
court from imposing a concurrent sentence.
C. The Sentence
Finally, defendant argues that the period of parole
ineligibility imposed was excessive. He contends that the court
placed too much weight on aggravating factor nine (the need to
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deter defendant and others from violating the law), and ignored
mitigating factor eleven (incarceration will cause defendant or
his dependents excessive hardship).
Appellate review of sentencing decisions is deferential and
governed by an abuse of discretion standard. State v. Blackmon,
202 N.J. 283, 297 (2010). "At the time of sentencing, the court
must 'state reasons for imposing such a sentence including . . .
the factual basis supporting a finding of particular aggravating
or mitigating factors effecting sentence.'" State v. Fuentes, 217
N.J. 57, 73 (2014) (quoting R. 3:21-4(g)). If the sentencing
court has not demonstrated "a clear error of judgment" or the
sentence does not "shock the judicial conscience," an appellate
court should not substitute its judgment for that of the sentencing
judge. State v. Roth, 95 N.J. 334, 364-65 (1984).
Here, the sentencing court found aggravating factors three,
N.J.S.A. 2C:44-1(a)(3) (the risk defendant will commit another
offense); six, N.J.S.A. 2C:44-1(a)(6) (the extent of his prior
criminal record); and nine, N.J.S.A. 2C:44-1(a)(9) (the need for
deterrence). The court noted that defendant had two prior
indictable convictions and an extensive juvenile record. Those
facts supported both aggravating factors three and six. The court
also explained the need for deterrence, particularly when
deterring drug offenses involving the intent to distribute.
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The court also determined that there were no mitigating
factors. In that regard, the record reflects that defense counsel
did not argue for any mitigating factors. Defendant, however, now
argues that the court should have found mitigating factor eleven,
which considers whether incarceration will cause defendant or his
dependents excessive hardship. N.J.S.A. 2C:44-1(b)(11). In
support of that argument, defendant contends that he has been
diagnosed with diabetes and that he was supporting two children
at the time he was sentenced. Those facts, when balanced against
the aggravating factors, do not establish an abuse of discretion
by the trial court.
There was also no abuse of discretion in the imposition of
fifty-four months of parole ineligibility. Defendant pled guilty
to N.J.S.A. 2C:35-5(b)(1) and that statute mandates that "[t]he
term of imprisonment shall include the imposition of a minimum
term which shall be fixed at, or between, one-third and one-half
of the sentence imposed, during which the defendant shall be
ineligible for parole." Defendant was sentenced to a ten-year
term of imprisonment and, thus, he was subject to a mandatory
period of parole ineligibility anywhere from forty months to sixty
months. In accordance with the plea agreement, defendant was
sentenced to fifty-four months of parole ineligibility.
Affirmed.
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