State v. Thomas

1

STATE OF NEW JERSEY, Plaintiff-Respondent, v. PEPE THOMAS, Defendant-Appellant.

No. A-1602-19

Superior Court of New Jersey, Appellate Division

March 8, 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 November 30, 2022

On appeal from the Superior Court of New Jersey, Law Division Passaic County, Indictment No. 18-03-0254.

Taylor L. Napolitano, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender attorney; Taylor L. Napolitano, of counsel and on the briefs).

Ali Y Ozbek, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Ali Y. Ozbek, of counsel and on the brief).

Before Judges Currier, Mayer and Enright.

PER CURIAM

Defendant Pepe Thomas appeals from his convictions and sentence after a jury found him guilty of several possession and distribution of controlled dangerous substance (CDS)-related offenses. He challenges the denial of his motions to suppress evidence and for a new trial. Defendant also contends the court should have given the jury additional instructions. He also asserts the court improperly merged several counts and incorrectly weighed the aggravating and mitigating factors in imposing sentence. We affirm defendant's convictions. As to the sentence, we agree the court did not properly merge the counts. Therefore, we remand solely for re-sentencing.

I.

On November 2, 2017, Paterson police officers Jovan Candelo and Thomas Giaquinto^[1] were on patrol in a marked police vehicle at about 2:55 a.m. when they observed defendant and another individual engage in a drug transaction. When the officers got out of the car, defendant attempted to flee and both officers restrained him, allowing the second individual to escape. After arresting and searching defendant, the officers found CDS, cash, and drug paraphernalia.

Defendant was charged in an indictment with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of cocaine with the intent to distribute within one thousand feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count three); second-degree possession of cocaine with the intent to distribute within five hundred feet of a public building, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5(a) (count four); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count five); third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count six); third-degree possession of heroin with the intent to distribute within one thousand feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count seven); second-degree possession of heroin with the intent to distribute within five hundred feet of a public building, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5(a) (count eight); third-degree possession of ecstasy, N.J.S.A. 2C:35-10(a)(1) (count nine); third-degree possession of ecstasy with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count ten); third-degree possession of ecstasy with the intent to distribute within one thousand feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count eleven); second-degree possession of ecstasy with the intent to distribute within five hundred feet of a public building, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5(a) (count twelve); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count thirteen).

II.

Defendant moved to suppress the evidence, contending it was seized following an improper warrantless search. The suppression hearing took place over two days.

During the first day of the hearing, Candelo testified he was on patrol with Giaquinto when they saw two individuals "exchang[e] what looked like drugs for money." Candelo stated that as defendant was facing the officers, he reached into his right pocket and retrieved "small objects that looked like . . . drugs, crack cocaine, [and] heroin." Candelo explained that the small objects he saw looked like CDS, which often "come in small cylindrical objects or small envelopes and [are] usually loose. They come in certain colors." The officers then saw defendant hand the items that he retrieved from his pocket to a "dark skinned" man wearing a green coat. Upon witnessing this, the officers got out of their car to approach the two men.

According to Candelo, when defendant saw the officers approaching, he declared "I'm not doing anything" and then began to sprint away from the officers when Candelo tried to speak to him. Candelo gave chase and grabbed defendant by his upper body; Giaquinto remained "speaking to the other suspect" but noticed the struggle and then assisted Candelo in detaining defendant. The officers then placed defendant in handcuffs and searched his person, finding in his front right pocket "[a] plastic bag which had what, at the time, looked like crack cocaine" and "[s]mall glassine envelopes that looked like heroin." They also found a scale.

On cross-examination, Candelo agreed the incident report erroneously stated the arrest took place on October 11, 2017 instead of November 2, 2017. However, the error only appeared once in the report; the correct date was otherwise listed throughout the report. Defense counsel also questioned Candelo about his notation on a "use[-]of[-]force" report that the type of incident was a "suspicious person" rather than a "crime in progress." Candelo explained he made that notation because he saw defendant hand what he "thought were drugs to the other man." He could not be 100% certain it was CDS being exchanged until the evidence was tested and found positive for heroin and crack cocaine. Candelo stated he did not attempt to obtain surveillance footage of the incident after the arrest. Nor did he attempt to recover fingerprints from the bags that contained the CDS, but he said he was unaware of any case where latent fingerprints were recovered from drug packaging.

Officer Giaquinto also testified. He confirmed he was on patrol with Candelo on November 2, 2017 when they observed defendant, "standing near . . . [a] driveway . . . wearing a black knit hat, black jacket, [and] black sweat pants. He was standing with another dark-skinned male wearing a green jacket and [blue jeans]." Defendant then "hand[ed] the other dark-skinned male wearing the green jacket multiple small, yellow tinted objects in exchange for paper currency." As the officers drove closer in their vehicle, the men noticed them and began to walk away. Candelo and Giaquinto then got out of the patrol car and ordered the men to stop; Giaquinto said he approached the suspected buyer and Candelo approached defendant. Giaquinto testified he heard a "commotion," turned, and saw Candelo struggling with defendant. He then assisted Candelo with restraining defendant. The other individual fled the scene.

According to Giaquinto, the officers found "[e]ight glassines of heroine, one chunk of crack cocaine weighing approximately five grams and five [e]cstasy pills, one Digiweigh [s]cale and a plastic bag containing empty [b]aggies commonly used to package CDS" on defendant's person. Giaquinto explained it is common for drug dealers to have CDS, drug paraphernalia, and money on their person.

In an oral decision issued January 24, 2019, the judge denied the suppression motion, finding the officers' testimony was consistent in their observations of defendant and the other individual before they stopped and approached them, in what occurred at the scene, and in describing the items recovered in the search after arrest.

The court described the officers as "calm, respectful, cooperative and [nonconfrontational.]" When the officers were confronted with facts they were unsure about, their recollection was refreshed. The judge found both officers were "credible witnesses to the events giving rise to the underlying charges brought against [] defendant." She further found the officers witnessed defendant "remov[e] small yellow objects that resembled CDS and pass[] them off to another individual in exchange for paper currency" in an area that was known for narcotics activity. The court stated, "the underlying circumstances . . . support the officer's reasonable and articulable suspicion to stop and interrogate [] defendant." The court concluded there was probable cause to arrest and then search defendant incident to arrest.

III.

The trial took place on several dates in August and September 2019. Both officers described, consistent with the testimony during the suppression hearing, the events leading up to defendant's arrest and the subsequent search.

When defense counsel asked Candelo about the lack of video surveillance footage, Candelo stated there were cameras in the area, but they might not have been fixed on the scene at the time of the incident. He conceded he did not attempt to obtain any footage.

Defendant moved for a judgment of acquittal at the close of the State's case. Defendant contended there was no evidence to corroborate the officers' testimony regarding their observations of the interaction between defendant and the other individual. In denying the motion, the judge stated "[after] giving all reasonable inferences to the State . . the case . . . survive[s] the motion." The court noted defense counsel "ma[de] inviting arguments with respect to the credibility issue of the officers and the acts of . . . defendant and the...