STATE OF NEW JERSEY VS. DEE THOMAS (13-10-1272, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 10, 2017
• Docket: A-5187-14T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5187-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEE THOMAS,

Defendant-Appellant. _____________________________

Submitted March 9, 2017 – Decided May 10, 2017

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 13-10-1272.

Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, on the brief).

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Alycia I. Pollice- Beyrouty, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dee Thomas appeals from a May 27, 2015 judgment of

conviction after the entry of a guilty plea. We affirm defendant's conviction but remand for a statement of reasons as to why the

court imposed a four-year period of parole ineligibility.

Mercer County Prosecutor's Office (MCPO), Special

Investigations Unit, conducted a six-month narcotics investigation

surrounding cocaine distribution by defendant from two separate

addresses in Trenton. In April 2013, Detective Kevin Searing

received information from a confidential informant (CI) who had

personal knowledge an individual by the name of "Cork" was selling

large quantities of cocaine throughout Trenton. Because of

previous investigations, Searing knew "Cork" was defendant.

The CI had purchased cocaine from defendant on prior

occasions, and routinely called defendant each time requesting a

specific amount. Defendant would pick a time and location to meet

and complete the transaction. The CI provided defendant's

residential address and stated defendant drove a gray GMC Yukon

(Yukon) and a black BMW (BMW).1 The CI reported defendant

possessed a firearm at another address in Trenton (second address).

The CI described defendant as a black male, between thirty to

thirty-five years old, approximately 6'5" and 220 pounds. Searing

obtained a photograph of defendant from the New Jersey Department

1 Hereinafter, we refer to defendant's residential address as "residential address." We note this is defendant's girlfriend's residence where defendant spends his time.

2 A-5187-14T2 of Motor Vehicle Services (Motor Vehicle), and the CI identified

the person in the photo as "Cork."

A controlled buy was arranged between the CI and defendant.

Searing met with the CI, searched the CI and his vehicle for drugs

and money, and provided the CI with the funds necessary to complete

the transaction. The CI then called defendant and held the phone

so Searing could hear the conversation. The CI asked to purchase

cocaine and defendant said to meet him at the second address in

twenty minutes. Searing's colleague, Detective Jesus Perea, was

surveilling the residential address and reported defendant's Yukon

was in front of the home.

The CI drove to the second address. Searing followed, while

surveillance units followed defendant as he left the residential

address in the Yukon. Searing observed defendant arrive and enter

the second address. The CI walked to the front door, knocked, and

entered. A few minutes later, the CI exited the residence and

left the area in his vehicle.

Several members of the surveillance unit followed defendant

back to the residential address while Searing met with the CI at

another location. The CI informed Searing that once he was inside

the residence, defendant gave him cocaine in exchange for money.

The CI gave Searing the cocaine, which tested positive. Two more

3 A-5187-14T2 controlled buys were arranged between defendant and the CI. All

buys produced positive results for cocaine.

After the third controlled buy, on May 23, 2013, Searing

obtained five search warrants: one for defendant, one for the

residential address, one for the second address, one for

defendant's Yukon, and one for defendant's BMW.

On May 29, 2013, at approximately 5:14 p.m., police executed

the search warrant at the second address. As officers approached

the residence, defendant was walking from his BMW parked across

the street. Officers approached and secured defendant, as other

officers entered the residence and observed two boxes of baking

soda, one box of plastic bags, one plastic zip lock bag containing

numerous smaller zip lock bags, and two fully operable digital

scales. After a search of defendant's person, officers found

$1,853 in cash and a set of car keys for the BMW. The search of

the BMW uncovered two plastic bags with what appeared to be crack

cocaine, a credit transfer paperwork in defendant's name, and a

New Jersey vehicle registration and insurance card for the BMW,

both in defendant's name.

Around the same time, officers executed a search of the

residential address. Police found plastic bags with what appeared

to be crack cocaine, $620 in cash, a box of .44 caliber ammunition,

a bill of sale for the BMW, pieces of mail in defendant's name,

4 A-5187-14T2 baking soda, plastic bags, an operable digital scale, as well as

some loose rocks, suspected to be crack cocaine.

Defendant was arrested and advised of his constitutional

rights; he agreed to speak with the police. Defendant admitted

the drugs recovered by the officers were his and that he had the

intent to distribute.

On October 4, 2013, a Mercer County grand jury indicted

defendant on two counts of third-degree possession of a controlled

dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10(a)(1)

(counts one and two); first-degree possession of CDS with the

intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and

N.J.S.A. 2C:35-5(b)(1) (count three); second-degree possession

with intent to distribute CDS, contrary to N.J.S.A. 2C:35-5(a)(1)

and N.J.S.A. 2C:35-5(b)(2) (count four); two counts of third-

degree possession of CDS with the intent to distribute on or near

school property, contrary to N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-

5(a)(1), and N.J.S.A. 2C:35-5(b)(1) (counts five and six); and

second-degree possession of CDS with intent to distribute near a

public facility, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.

2C:35-5(b)(1) (count seven).

On August 14, 2014, defendant moved to suppress evidence

seized pursuant to the search warrants. The judge denied the

motion.

5 A-5187-14T2 On April 27, 2015, defendant pled guilty to first-degree

possession of CDS with intent to distribute. On May 22, 2015,

defendant was sentenced to a ten-year prison term with four years

of parole ineligibility, in accordance with the recommended

sentence in the plea agreement. In imposing the sentence, the

court found aggravating factors three, risk defendant will commit

another offense, and nine, the need for deterrence. The court

found no mitigating factors.

Defendant filed a notice of appeal on July 21, 2015.

Defendant raises the following points on appeal:

POINT I

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S REQUEST FOR A HEARING ON THE VERACITY OF THE ALLEGATIONS IN THE SEARCH WARRANT AFFIDAVIT. IN ANY EVENT, THE AFFIDAVIT FAILED TO PROVIDE PROBABLE CAUSE TO SEARCH DEFENDANT'S HOME, AUTOMOBILE, AND PERSON. (U.S. CONST., ART. I, PAR. 4; N.J. CONST. ART. I, PAR. 7.).

POINT II

A REMAND FOR RESENTENCING IS REQUIRED BECAUSE THE SENTENCING JUDGE IMPOSED A LONGER PERIOD OF PAROLE INELIGIBILITY THAN REQUIRED UNDER N.J.S.A. 2C:35-5 WITHOUT ARTICULATING THE REASONS FOR THE ADDITIONAL PERIOD OF PAROLE INELIGIBILITY.

I.

Defendant argues the trial court erred by denying his request

for an evidentiary hearing on his suppression motion, arguing the

6 A-5187-14T2 warrant's supporting affidavit contained material falsehoods and

demonstrated a reckless disregard for the truth. Additionally,

defendant argues the search warrant did not establish probable

cause. We disagree.

When reviewing a trial court's denial of a motion to suppress,

we will "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) (citation omitted). We will only disturb the trial

court's decision "if [it is] so clearly mistaken 'that the

interests of justice demand intervention and correction.'" Ibid.

(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We must

focus on "whether the motion to suppress was properly decided

based on the evidence presented at that time." State v. Gibson,

318 N.J. Super. 1, 9 (App. Div. 1999).

A defendant challenging the validity of a search warrant must

"make[] a substantial preliminary showing of material

misstatements in a search warrant affidavit, made knowingly or

with [a] reckless disregard for the truth." State v. Howery, 80

N.J. 563, 566 (citing Franks v. Delaware, 438 U.S. 154, 98 S. Ct.

2674, 57 L. Ed. 2d 667 (1978)), cert. denied, 444 U.S. 994, 100

S. Ct. 527, 62 L. Ed. 2d 424 (1979). If defendant can prove, by

a preponderance of the evidence, such a falsity exists, the warrant

7 A-5187-14T2 is deemed invalid and all evidence seized pursuant to the search

warrant must be suppressed. Ibid. (citing Franks, supra, 438 U.S.

at 155, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672). The defendant

must support his or her allegations

by an offer of proof including reliable statements by witnesses, . . . and they must be provided by a preponderance of the evidence. Finally, the misstatements claimed to be false must be material to the extent that when they are excised from the affidavit, that document no longer contains facts sufficient to establish probable cause.

[Id. at 567-68 (citing Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d 682).]

Defendant challenges the search warrants, citing "several

material misstatements" concerning the CI's description of

defendant. The CI described defendant as 6'5", 220 pounds, and

between 30 to 35 years old. Defendant argues he is 6'3", 335

pounds, and is 28 years old. Additionally, defendant argues the

CI failed to mention his most distinctive feature: his long braids.

Defendant argues the CI's information demonstrates material

misstatements in the affidavit. We disagree.

The CI's description of defendant was reasonably close to

defendant's true characteristics, but regardless of his

description of defendant, the CI was able to correctly identify

defendant as the man he knew as "Cork" from defendant's Motor

8 A-5187-14T2 Vehicle picture. If the CI's initial description of defendant

were stricken from the affidavit, there would still be sufficient

information to support a finding of probable cause based upon the

CI's identification of defendant's picture. See State v. Goldberg,

214 N.J. Super. 401, 406 (App. Div. 1986) (holding if probable

cause would still exist despite the inaccurate information the

defendant is not entitled to an evidentiary hearing), certif.

denied, 107 N.J. 118 (1987).

Next, defendant argues the affidavit omitted that the second

address in the search warrant was in fact a gambling house,

frequented by many people. Defendant argues the affidavit does

not establish defendant had control or dominion over the property

and fails to indicate how many people were inside the second

address during the CI's alleged controlled buys. We disagree and

find defendant's argument to be irrelevant. The surveillance team

observed the CI call defendant to arrange a time to purchase

cocaine, the officers observed defendant leave the residential

address and drive to the second address he provided to the CI, and

observed defendant enter the second address. The CI then entered

the second address, without cocaine, and came out and met Detective

Searing with the purchased cocaine. The affidavit supported a

finding of probable cause that defendant was the "Cork" the CI

stated was dealing cocaine.

9 A-5187-14T2 Last, defendant argues Detective Perea's observations

repeated in the affidavit lack credibility because of an unrelated

incident and all observations made by him must be stricken from

the record. Without Detective Perea's observations, defendant

argues, probable cause for the search warrant is lacking. The

trial court rejected this argument, because there existed

sufficient probable cause to connect defendant to the residential

address, in light of the other officers who witnessed defendant

leave the second address and drive back to the residential address.

If all portions of Detective Perea's observations were stricken

from the affidavit, probable cause supports the search warrant in

light of the totality of observations reported by other officers

in the surveillance team.

Defendant's argument that statements in the affidavit

constitute material misrepresentations or reckless disregard for

the truth is not supported by the record. The trial court's denial

of defendant's motion to suppress and seek a Franks hearing was

not an abuse of discretion.

Defendant also argues the affidavit failed to establish

probable cause to search the two address, defendant's person, and

the two cars. We disagree.

We give substantial deference to a judge's decision to issue

a search warrant. State v. Keyes, 184 N.J. 541, 554 (2005). We

10 A-5187-14T2 presume a search warrant to be valid and the burden is on the

defendant to prove "there was no probable cause supporting the

issuance of the warrant or that the search was otherwise

unreasonable." State v. Valenica, 93 N.J. 126, 133 (1983). Any

"[d]oubt as to the validity of the warrant 'should ordinarily be

resolved by sustaining the search.'" Keyes, supra, 184 N.J. at

554 (quoting State v. Jones, 179 N.J. 377, 389 (2004)).

For a search warrant to be valid, a judge must find there is

probable cause, which generally "means less than legal evidence

necessary to convict though more than mere naked suspicion." State

v. Sullivan, 169 N.J. 204, 210-11 (2001) (quoting State v. Mark,

46 N.J. 262, 271 (1966)). Courts must consider the totality of

the circumstances in determining whether there was probable cause

for a search warrant. Id. at 212.

Probable cause may be based upon information received from

informants, so long as there is "substantial evidence in the record

to support the informant's statements." Keyes, supra, 184 N.J.

at 555; see also Jones, supra, 179 N.J. at 399; Sullivan, supra,

169 N.J. at 212-13. The court "must consider the 'veracity and

basis of knowledge' of the informant as part of its 'totality'

analysis." Jones, supra, 179 N.J. at 389 (quoting State v.

Novembrino, 105 N.J. 95, 123 (1987)). "A deficiency in one of

those factors 'may be compensated for, in determining the overall

11 A-5187-14T2 reliability of a tip, by a strong showing as to the other, or by

some other indicia of reliability.'" State v. Zutic, 155 N.J.

103, 110-11 (1998) (quoting Illinois v. Gates, 462 U.S. 213, 233,

103 S. Ct. 2317, 2329, 76 L. Ed. 2d 527, 545 (1983)).

While an informant's veracity may be established by a showing

of an informant's reliability in past police investigations, see

Sullivan, supra, 169 N.J. at 213, "a few past instances of

reliability do not conclusively establish an informant's

reliability." State v. Smith, 155 N.J. 83, 94 (1998). As for

basis of knowledge, "the court must decide whether the tip reveals

'expressly or clearly' how the informant became aware of the

alleged criminal activity." Keyes, supra, 184 N.J. at 555-56

(quoting Smith, supra, 155 N.J. at 94). If such express disclosure

is absent, "the nature and details revealed in the tip may imply

that the informant's knowledge of the alleged criminal activity

is derived from a trustworthy source." Smith, supra, 155 N.J. at

94. Police corroboration of an informant's tip "is an essential

part of the determination of probable cause" as it "ratif[ies] the

informant's veracity and validate[s] the truthfulness of the tip."

Id. at 95.

Defendant argues the State failed to establish the CI's

veracity and basis of knowledge because the CI had not previously

provided any information to the MCPO that led to the arrests of

12 A-5187-14T2 any individuals. Defendant argues the CI's description of him was

inaccurate and the police never corroborated the CI's claim

defendant was selling drugs.

We begin by addressing the CI's basis of knowledge. The CI

had previously purchased cocaine from defendant, establishing the

tip reflects first-hand knowledge. Additionally, the detectives

coordinated three controlled buys to corroborate the CI's

statements prior to applying for the search warrant. Each of the

controlled buys were conducted in the same manner, and each time

the detectives observed defendant entering and exiting the second

address. While a controlled buy in and of itself does not

establish probable cause, see Sullivan, supra, 169 N.J. at 216,

the controlled buys in the present case were further supported by

the CI's other information. As to the CI's description of

defendant, we previously stated the description provided was

reasonably close to the attributes of defendant. Moreover, the

CI's identification of defendant from his Motor Vehicle picture

provided a sufficient basis for his knowledge the man in the

picture was the defendant.

As to the CI's veracity, the fact the CI had never been used

by the MCPO before does not negate reliability. Because the CI

had a direct, personal basis of knowledge for the tip and the

detectives corroborated the CI's tip, the CI's basis of knowledge

13 A-5187-14T2 and veracity were sufficient to find probable cause to issue the

search warrants.

II.

Defendant argues the trial court did not provide an

explanation as to why the court imposed a period of parole

ineligibility beyond what was statutorily required. We agree and

are constrained to remand to the trial judge to explain reasons

for imposing the four-year period of parole ineligibility.

Defendant pled guilty to N.J.S.A. 2C:35-5(a)(1), which

carries a minimum period of parole ineligibility between one-third

and one-half of the sentence imposed. See N.J.S.A. 2C:35-5(b)(1).

For a ten-year sentence, the minimum period of parole ineligibility

would be three and a half years. Here, the sentencing judge

imposed four years but did not provide a statement of reasons as

to why he did not impose the minimum amount required. We remand

the matter to the sentencing judge to provide his reasoning for

imposing a four-year period of parole ineligibility.

Affirmed in part and remanded in part, consistent with this

opinion. We do not retain jurisdiction.

14 A-5187-14T2