NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2562-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
COREY M. TAYLOR a/k/a COREY SIMPKINS,
Defendant-Appellant.
_______________________________
Submitted September 5, 2018 – Decided September 10, 2018
Before Judges Alvarez and Gooden Brown.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 14-11-2771 and 15-12-2989.
Joseph E. Krakora, Public Defender, attorney for appellant (Cody T. Mason, Assistant Deputy Public Defender, of counsel and on the brief).
Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
On January 20, 2017, defendant Corey Taylor was sentenced in accord
with his plea agreement with the State on the following offenses: third-degree
possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a); third-
degree unlawful possession of a weapon (a rifle), N.J.S.A. 2C:39-5(c)(1); and
second-degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-
5(b). On the second-degree offense, the judge sentenced defendant to seven
years subject to forty-two months of parole ineligibility, in accord with the
Graves Act, N.J.S.A. 2C:43-6(c), on the rifle possession, defendant received five
years subject to three years of parole ineligibility, again, pursuant to the Graves
Act. A concurrent five year term was imposed on the third-degree drug
possession offense. The remaining numerous counts of the two separate
indictments were dismissed pursuant to the plea agreement. Defendant appeals
the denial of his pretrial motions to suppress. For the reasons that follow, we
affirm.
I.
With regard to the third-degree unlawful drug possession, Newark police
officer Christopher Segarra testified that on the morning of June 4, 2014, he was
dispatched with two other officers to an area he patrolled on a daily basis. All
A-2562-16T1 2 the officers were in civilian clothing, but wearing police badges around their
necks. Over the time he was assigned there, Segarra had made several arrests
for weapons and narcotics. Prior to going to the location, he was informed of
an anonymous call to the station stating that a heavy-set male wearing a white
shirt and yellow shorts had been seen brandishing a gun. When the officers
arrived, they saw two men engaging in a conversation "pretty much in the middle
of the street." As they approached, the men were observed exchanging items in
a "possible hand-to-hand transaction." The officers announced themselves after
stepping out of the vehicle; the two men looked towards them and fled. The
officers chased after the man wearing the white shirt and yellow shorts, later
identified as defendant. While running, defendant "was pretty much grabbing
his left side." After defendant and Segarra vaulted a fence, defendant tossed a
Ziploc bag, which Segarra grabbed as he continued to give chase. Defendant
ran down a driveway, where he was stopped by the other officers. The Ziploc
bag was later found to have numerous bags of heroin and cocaine. When
defendant was searched incident to his arrest, the officers found eight bags of
marijuana and sixty-two dollars in cash.
The judge relied on several factors in denying the motion to suppress.
Segarra, whom he found credible, had ten years of experience with narcotics
A-2562-16T1 3 investigations. The area was known to be an open air drug market, and had been
the subject of many calls by citizens. Segarra immediately noticed defendant
because he matched the anonymous caller's description of a man brandishing a
handgun, and appeared to be engaging in a drug transaction. Furthermore, the
men fled when the officers showed their badges and directed defendant to stop.
During the ensuing chase, Segarra saw defendant toss a bag onto the ground.
Hence, the judge held the officer had a reasonable and articulable suspicion to
detain defendant initially, and to pursue defendant and seize the bag he tossed.
The judge also found the arrest and search incident to arrest lawful.
II.
The weapons convictions stemmed from seizures made under the authority
of a search warrant. East Orange Police Department Sergeant Anthony Ricks
applied for the warrant. In the supporting affidavit, he said he and an undercover
officer had previously made a buy from a codefendant who was standing in front
of a particular address listed in the warrant and affidavit. During the purchase,
the undercover officer was instructed by the codefendant to go next door . A
codefendant entered the address for about two minutes before returning to hand
the undercover officer two small bags of marijuana in exchange for twenty
dollars. During surveillance, Ricks observed several individuals——including
A-2562-16T1 4 defendant——going in and out of the house and seemingly engaging in narcotics
activities.
In Ricks's search warrant affidavit, he stated that the undercover officer
"was equipped with an audio/video recording device which would be used to
record any conversations and/or transactions which may take place." No
recordings were produced by the return date of the motion to suppress. In the
affidavit, Ricks said that "[i]ntelligence gathered as well as prior undercover
narcotics purchases led [him] to believe that narcotics (namely marijuana), was
being distributed at the said location from [the codefendant] and a Mr. Cory
Taylor."
In his written motion decision, the judge opined that the details of the
controlled buy sufficed to establish probable cause for the search warrant. The
description of the interaction established the necessary nexus between the
contraband and the relevant address. Therefore, he concluded, defendant fell
short of meeting his burden to demonstrate no probable cause existed.
The judge also addressed defendant's objection that the information was
stale, stating that in addition to the details of the July 1 buy, which took place
nine days prior to the application for a search warrant, Ricks mentioned prior
undercover narcotics purchases connecting defendant to the relevant address.
A-2562-16T1 5 The judge therefore concluded that the nature of the alleged activity was
ongoing, making the issue of staleness irrelevant. Additionally, nine days was
not so extended a delay as to warrant suppression based on staleness.
Accordingly, he denied this motion as well.
III.
Defendant raises the following points for our consideration:
POINT I THE FIRST MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE OFFICERS LACKED REASONABLE SUSPICION TO BELIEVE DEFENDANT WAS ENGAGED IN CRIMINAL ACTIVITY PRIOR TO SEIZING HIM.
POINT II THE SECOND MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE SEARCH WARRANT WAS NOT SUPPORTED BY PROBABLE CAUSE SPECIFIC TO THE HOME THAT WAS SEARCHED.
POINT III A REMAND FOR RESENTENCING IS REQUIRED BECAUSE THE COURT DID NOT ADEQUATELY EXPLAIN THE
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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-2562-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
COREY M. TAYLOR a/k/a COREY SIMPKINS,
Defendant-Appellant.
_______________________________
Submitted September 5, 2018 – Decided September 10, 2018
Before Judges Alvarez and Gooden Brown.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 14-11-2771 and 15-12-2989.
Joseph E. Krakora, Public Defender, attorney for appellant (Cody T. Mason, Assistant Deputy Public Defender, of counsel and on the brief).
Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
On January 20, 2017, defendant Corey Taylor was sentenced in accord
with his plea agreement with the State on the following offenses: third-degree
possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a); third-
degree unlawful possession of a weapon (a rifle), N.J.S.A. 2C:39-5(c)(1); and
second-degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-
5(b). On the second-degree offense, the judge sentenced defendant to seven
years subject to forty-two months of parole ineligibility, in accord with the
Graves Act, N.J.S.A. 2C:43-6(c), on the rifle possession, defendant received five
years subject to three years of parole ineligibility, again, pursuant to the Graves
Act. A concurrent five year term was imposed on the third-degree drug
possession offense. The remaining numerous counts of the two separate
indictments were dismissed pursuant to the plea agreement. Defendant appeals
the denial of his pretrial motions to suppress. For the reasons that follow, we
affirm.
I.
With regard to the third-degree unlawful drug possession, Newark police
officer Christopher Segarra testified that on the morning of June 4, 2014, he was
dispatched with two other officers to an area he patrolled on a daily basis. All
A-2562-16T1 2 the officers were in civilian clothing, but wearing police badges around their
necks. Over the time he was assigned there, Segarra had made several arrests
for weapons and narcotics. Prior to going to the location, he was informed of
an anonymous call to the station stating that a heavy-set male wearing a white
shirt and yellow shorts had been seen brandishing a gun. When the officers
arrived, they saw two men engaging in a conversation "pretty much in the middle
of the street." As they approached, the men were observed exchanging items in
a "possible hand-to-hand transaction." The officers announced themselves after
stepping out of the vehicle; the two men looked towards them and fled. The
officers chased after the man wearing the white shirt and yellow shorts, later
identified as defendant. While running, defendant "was pretty much grabbing
his left side." After defendant and Segarra vaulted a fence, defendant tossed a
Ziploc bag, which Segarra grabbed as he continued to give chase. Defendant
ran down a driveway, where he was stopped by the other officers. The Ziploc
bag was later found to have numerous bags of heroin and cocaine. When
defendant was searched incident to his arrest, the officers found eight bags of
marijuana and sixty-two dollars in cash.
The judge relied on several factors in denying the motion to suppress.
Segarra, whom he found credible, had ten years of experience with narcotics
A-2562-16T1 3 investigations. The area was known to be an open air drug market, and had been
the subject of many calls by citizens. Segarra immediately noticed defendant
because he matched the anonymous caller's description of a man brandishing a
handgun, and appeared to be engaging in a drug transaction. Furthermore, the
men fled when the officers showed their badges and directed defendant to stop.
During the ensuing chase, Segarra saw defendant toss a bag onto the ground.
Hence, the judge held the officer had a reasonable and articulable suspicion to
detain defendant initially, and to pursue defendant and seize the bag he tossed.
The judge also found the arrest and search incident to arrest lawful.
II.
The weapons convictions stemmed from seizures made under the authority
of a search warrant. East Orange Police Department Sergeant Anthony Ricks
applied for the warrant. In the supporting affidavit, he said he and an undercover
officer had previously made a buy from a codefendant who was standing in front
of a particular address listed in the warrant and affidavit. During the purchase,
the undercover officer was instructed by the codefendant to go next door . A
codefendant entered the address for about two minutes before returning to hand
the undercover officer two small bags of marijuana in exchange for twenty
dollars. During surveillance, Ricks observed several individuals——including
A-2562-16T1 4 defendant——going in and out of the house and seemingly engaging in narcotics
activities.
In Ricks's search warrant affidavit, he stated that the undercover officer
"was equipped with an audio/video recording device which would be used to
record any conversations and/or transactions which may take place." No
recordings were produced by the return date of the motion to suppress. In the
affidavit, Ricks said that "[i]ntelligence gathered as well as prior undercover
narcotics purchases led [him] to believe that narcotics (namely marijuana), was
being distributed at the said location from [the codefendant] and a Mr. Cory
Taylor."
In his written motion decision, the judge opined that the details of the
controlled buy sufficed to establish probable cause for the search warrant. The
description of the interaction established the necessary nexus between the
contraband and the relevant address. Therefore, he concluded, defendant fell
short of meeting his burden to demonstrate no probable cause existed.
The judge also addressed defendant's objection that the information was
stale, stating that in addition to the details of the July 1 buy, which took place
nine days prior to the application for a search warrant, Ricks mentioned prior
undercover narcotics purchases connecting defendant to the relevant address.
A-2562-16T1 5 The judge therefore concluded that the nature of the alleged activity was
ongoing, making the issue of staleness irrelevant. Additionally, nine days was
not so extended a delay as to warrant suppression based on staleness.
Accordingly, he denied this motion as well.
III.
Defendant raises the following points for our consideration:
POINT I THE FIRST MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE OFFICERS LACKED REASONABLE SUSPICION TO BELIEVE DEFENDANT WAS ENGAGED IN CRIMINAL ACTIVITY PRIOR TO SEIZING HIM.
POINT II THE SECOND MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE SEARCH WARRANT WAS NOT SUPPORTED BY PROBABLE CAUSE SPECIFIC TO THE HOME THAT WAS SEARCHED.
POINT III A REMAND FOR RESENTENCING IS REQUIRED BECAUSE THE COURT DID NOT ADEQUATELY EXPLAIN THE
A-2562-16T1 6 SENTENCE AND IMPROPERLY WITHHELD TWO DAYS OF JAIL CREDIT.
A. A Remand Is Required Because the Court Did Not Adequately Explain the Sentence Imposed.
B. A Remand Is Required Because Defendant is Entitled to Two Additional Days of Jail Credit.
C. A Remand Is Required to Vacate the Parole Bar Imposed on the Rifle Conviction.
The State concedes that no parole bar should have been imposed on the
third-degree possession of a rifle, as it did not fall under the purview of the
Graves Act. Accordingly, the matter must be remanded for correction of the
judgment. On remand, the court should also consider whether defendant is
entitled to additional days of credit. The police report referenced by defendant
in support of his argument does appear to indicate that defendant was taken into
custody on July 10, 2015, as opposed to July 12, 2015——the date listed on the
pre-sentence report. It is also true that defendant was actually taken into custody
on an unrelated arrest warrant for other narcotic offenses. The credits cannot be
resolved on this record, and require additional information to be presented to the
sentencing judge before the matter can be resolved.
A-2562-16T1 7 IV.
Defendant contends that his motion to suppress the drugs should have
been granted because the officers lacked a reasonable suspicion for the stop.
This argument lacks merit.
The determination as to whether the State has met its preponderance of
the evidence burden to show officers had adequate reasonable suspicion is
highly fact-sensitive and requires careful consideration of the totality of the
circumstances. State v. Coles, 218 N.J. 322, 343 (2014); State v. Mann, 203
N.J. 328, 338 (2010). The decision calls for an objective evaluation of the
circumstances and the facts available at the time of the encounter. State v.
Pineiro, 183 N.J. 13, 21-27 (2004); State v. Stovall, 170 N.J. 346, 361 (2002).
In this case, as the judge observed, multiple factors established reasonable
suspicion. A credible police officer testified that the area was an open air
narcotics market about which numerous civilian complaints had been received.
Although that factor alone would not be dispositive, it may be considered in
conjunction with others. State v. Bard, 445 N.J. Super. 145, 158-59 (App. Div.
2016). Additionally, defendant was dressed precisely as an anonymous caller
reporting a man with a gun described and had the same physical build. That
would have warranted at least a field inquiry, but when the officers arrived, they
A-2562-16T1 8 also observed defendant engaged in a drug transaction. That the officer did not
fully detail his observations is not sufficient to discount his interpretation of
events. The officer had ten years of experience witnessing drug trafficking. The
judge properly credited Segarra's belief that he saw a drug transaction.
Defendant also contends that the motion to suppress the evidence seized
on the warranted search should have been granted because Ricks's affidavit did
not establish probable cause. This claim also lacks merit.
Defendant argues that Ricks's statement about prior intelligence and the
controlled buy was insufficient to demonstrate probable cause. But an
undercover agent conducted the drug buy from the premises. The personal
observations of law enforcement officers are generally regarded as highly
reliable and sufficient to establish probable cause. See State v. O'Neal, 190 N.J.
601, 613-14 (2007); State v. Moore, 181 N.J. 40, 46-47 (2004); State v. Myers,
357 N.J. Super. 32, 39-40 (App. Div. 2003). Thus, the information in the
affidavit sufficed.
That nine days elapsed before the search warrant application is entirely
insignificant. Accordingly, the court also did not err in denying the motion to
suppress evidence seized during the execution of the search warrant.
A-2562-16T1 9 VI.
Finally, defendant argues that the matter should be remanded for
resentencing. He characterizes the judge's discussion of the aggravating and
mitigating factors as too superficial. However, it is black letter law that we will
affirm a sentence——after deferential review——so long as the sentencing
guidelines were not violated, the aggravating and mitigating factors found by
the trial judge were based upon competent and credible evidence, and the
sentence does not shock the judicial conscious. State v. Fuentes, 217 N.J. 57,
70 (2014) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). When sentencing
defendant in accord with the terms of the plea bargain in this case, the judge
noted defendant's personal circumstances and extensive prior contacts with the
system. At thirty-six, defendant had nine prior juvenile adjudications, seven
indictable convictions, two disorderly persons offenses, and had been
unsuccessfully placed on probation and parole. Against this backdrop, the judge
found aggravating factors three, six, and nine. N.J.S.A. 2C:44(a)(3), (6), and
(9). Clearly, the aggravating factors preponderated, but he nonetheless
sentenced defendant to the agreed upon term. We are satisfied that the
sentencing calculus was supported by the record and did not violate sentencing
guidelines. It does not shock our conscience.
A-2562-16T1 10 Affirmed, except that the matter is remanded to modify the parole
ineligibility term on the possession of a rifle count and for consideration of
defendant's claim that he is entitled to two additional days of jail credits.
A-2562-16T1 11