State v. Jesus

1

STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM GARCIA DE JESUS, Defendant-Appellant.

No. A-0349-21

Superior Court of New Jersey, Appellate Division

June 2, 2023

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.

Argued January 24, 2023

On appeal from the Superior Court of New Jersey, Law Division Bergen County, Indictment No. 17-02-0224.

Carter E. Greenbaum, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney Alison Perrone, Assistant Deputy Public Defender, of counsel Carter E. Greenbaum, Richard C. Tarlowe, and Alexander M. Butwin, Designated Counsel, admitted pursuant to Rule 1:21-3(c), on the briefs).

Ian C. Kennedy, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; Ian C. Kennedy, of counsel and on the brief).

Before Sumners and Susswein Judges.

PER CURIAM

Defendant William Garcia De Jesus appeals from his jury trial convictions for first-degree possession of a controlled dangerous substance (CDS) with intent to distribute and third-degree possession of heroin. After driving across the George Washington Bridge (GWB) into New Jersey, defendant was stopped by New York/New Jersey Port Authority (Port Authority) Police for a motor vehicle violation. Defendant consented to a search of the vehicle, during which officers found three kilos of heroin in a hidden compartment built into the dashboard.

Defendant contends the Law Division judge erred in denying his motion to suppress the fruits of the consent search. He further contends the trial judge erred in denying his motion for a new trial based upon a Brady^[1] pretrial discovery violation by the prosecutor and by denying his motion for postconviction discovery. Finally, defendant contends his reduced sentence^[2] should be vacated because the trial judge improperly considered matters not briefed by the parties and incorrectly weighed the sentencing factors. After carefully reviewing the record in light of the governing legal principles and arguments of the parties, we affirm the conviction and sentence.

I.

In February 2017, defendant was charged by indictment with first-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), and third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). Defendant thereafter filed a motion to suppress the evidence seized during the motor vehicle stop, as well as a motion to reveal the source of information provided to the Fort Lee Police Department that was shared with Port Authority Police prior to the stop.

On September 11, 2017, the motion judge convened an evidentiary hearing on defendant's motion to suppress. The same day, the motion judge heard argument on defendant's discovery motion and denied it, rendering an oral decision on the record.

On November 8, 2017, the motion judge entered an order denying the motion to suppress, rendering a twelve-page written opinion. Defendant moved for reconsideration. On April 3, 2018, the motion judge denied the motion for reconsideration, rendering a fourteen-page written opinion.

A different judge presided over the jury trial, which was convened in September 2018. The jury returned a guilty verdict on both counts. On January 25, 2019, the trial judge merged the conviction on the third-degree count into the conviction on the first-degree count and sentenced defendant to a sixteen-year prison term with a seven-year period of parole ineligibility.

During the pendency of defendant's initial appeal, defense counsel obtained recordings of Port Authority Police radio transmissions through New York Freedom of Information Law (FOIL) requests. Those recordings had not been disclosed by the prosecutor as part of pretrial discovery. With the State's consent, defendant moved for a remand to the trial court to permit him to file a motion for new trial based on newly obtained evidence. We granted that motion and ordered a limited remand. We did not retain jurisdiction.

In July 2020, defendant filed the motion for a new trial. In October 2020, defendant filed a motion for post-conviction discovery and a testimonial hearing. On December 16, 2020, the trial judge heard oral argument on the pending motions and determined a testimonial hearing was necessary. That hearing was convened on March 11, 2021, with oral argument heard on June 30, 2021. In September 2021, the trial judge denied defendant's motions for discovery and a new trial, rendering a twenty-nine-page written opinion.

This matter returns to us on defendant's second notice of appeal. He raises the following contentions for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING [DEFENDANT]'S PRETRIAL MOTION TO SUPPRESS BECAUSE THE STATE FAILED TO ESTABLISH REASONABLE SUSPICION TO REQUEST CONSENT TO SEARCH.

POINT II

THE TRIAL COURT ERRED IN DENYING [DEFENDANT]'S MOTION FOR A NEW TRIAL BASED ON THE STATE'S SUPPRESSION OF EVIDENCE.

A. The Radio Transmissions Were Favorable to the Defense.

B. The Radio Transmissions Were Suppressed by the State.

C. The Radio Transmissions Were Material to the Outcome of [Defendant]'s Suppression Motion and Trial.

1. The Radio Transmissions Were Material to [Defendant]'s Pretrial Suppression Motion Because They Would Have Undermined the Basis for the Stop and Subsequent Search.

2. The Radio Transmissions Were Material to [Defendant]'s Pretrial Suppression Motion Because They Would Have Bolstered [Defendant]'s Account of the Stop.

3. The Radio Transmissions Were Material to the Outcome of [Defendant]'s Trial.

POINT III

THE TRIAL COURT ERRED IN DENYING [DEFENDANT]'S PRETRIAL MOTION FOR DISCOVERY CONCERNING THE "TIP" ABOUT [DEFENDANT]'S CAR BEING UNREGISTERED.

POINT IV THE TRIAL COURT ERRED IN DENYING [DEFENDANT]'S MOTION FOR DISCOVERY IN POST-TRIAL PROCEEDINGS.

POINT V

[DEFENDANT]'S SENTENCE SHOULD BE VACATED BECAUSE THE TRIAL COURT CONSIDERED MATTERS NOT BRIEFED BY THE PARTIES AND INCORRECTLY WEIGHED THE AGGRAVATING AND MITIGATING FACTORS[.]

A. The Trial Court Overlooked Critical Facts and Incorrectly Characterized [Defendant] as "Not Credible."

B.

The Court Inappropriately Weighed the Aggravating and Mitigating Factors.

II.

We first address defendant's contention that his motion to suppress should have been granted because Port Authority police officers lacked reasonable suspicion to request his consent to search the vehicle as required by State v. Carty, 170 N.J. 632 (2002). We begin by recounting the relevant facts elicited at the suppression hearing and the motion judge's findings.

A.

The State presented testimony from Port Authority Police Officers Collin Journey and Patrick Devins.^[3] No other witnesses testified at the hearing. Officer Journey testified that he was assigned to patrol the upper level of the GWB outbound from New York in an unmarked vehicle. Earlier that day, at around 3:00 p.m. or 4:00 p.m., Officer Journey received information from Detective Timothy Cullen of the Fort Lee Police Department to be on the lookout for a 2008 black Ford Fusion bearing a specified Pennsylvania license plate, which was suspected of having a fraudulent registration.

At approximately 9:00 p.m., Officer Journey observed the Ford Fusion enter the I-95 ramp after having crossed the lower level of the bridge from New York into New Jersey. Officer Journey began to follow the vehicle and observed it move out of its lane multiple times, crossing the broken line splitting lanes. He further observed defendant's vehicle cut off a car while changing lanes. Officer Journey followed the vehicle until it reached a safe area to stop and activated his overhead lights and siren. Officer Journey testified that he did not stop the vehicle based on the information provided by the Fort Lee Police Department; rather, he stopped the vehicle based on his personal observation of a motor vehicle violation, that is, "failure to maintain lane and careless driving."

Officer Devins arrived as backup. Officer Journey approached the passenger side of the vehicle and asked defendant for his license, registration, and insurance identification card. Defendant produced a New York driver's license from his wallet and a registration and insurance card from the glove compartment. The vehicle was registered to an address on East Thayer Street in Philadelphia.

Officer Journey's suspicions were raised when he recognized the vehicle was registered to the same address as a vehicle he stopped two days earlier that had a hidden compartment containing twelve ounces of heroin and a loaded firearm. Officer Journey also observed a single key in the ignition that was not attached to a key chain and noted there were no personal effects inside the vehicle. Based on his experience, the single key combined with the absence of personal affects was consistent with the modus operandi of drug traffickers.

Defendant stated the vehicle was owned by his friend "Jose," but was unable to give Jose's last name or address. Defendant also stated he was traveling from the Bronx to a friend's house in Philadelphia, but did not know where his friend lived.

Defendant exited the vehicle pursuant to Officer Journey's instructions. Defendant then stated that he was considering purchasing the vehicle and was following someone back to Philadelphia. However, he could not provide the name of the person he was following; nor could he provide a description of the vehicle he claimed to be following. Officer Journey testified that he did not observe defendant following any other vehicle.

At this point, the...