STATE OF NEW JERSEY VS. MARK GREENÂ (13-06-1139, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1938-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK GREEN, a/k/a MARK SCOTT, ALTON
GREEN, ALTUR GREEN and ANTON GREEN,
Defendant-Appellant.
_____________________________
Argued June 19, 2017 – Decided July 6, 2017
Before Judges Fisher and Fasciale.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
13-06-1139.
Mark H. Friedman, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Mr. Friedman, of counsel and on the brief).
Mary R. Juliano, Assistant Prosecutor, argued
the cause for respondent (Christopher J.
Gramiccioni, Monmouth County Prosecutor,
attorney; Ms. Juliano, of counsel and on the
brief; Anthony Valenzano, Legal Assistant, on
the brief).
PER CURIAM
After entering an open plea, defendant appeals from his
convictions for fourth-degree possession of a controlled dangerous
substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession
of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(11); and
third-degree possession of CDS with intent to distribute within
1000 feet of a school, N.J.S.A. 2C:35-7.
On appeal, defendant raises the following arguments:
POINT I
THE MOTION COURT ERRED IN DENYING THE MOTION
TO SUPPRESS BECAUSE THE ORIGINAL STOP OF
DEFENDANT'S VEHICLE WAS ILLEGAL AND
UNCONSTITUTIONAL. THE STATE FAILED TO SHOW
THAT THE POLICE HAD AN ARTICULABLE SUSPICION
THAT DEFENDANT'S TURN WITHOUT [SIGNALING]
MIGHT HAVE HAD AN EFFECT ON TRAFFIC.
POINT II
THIS CASE MUST BE REMANDED FOR RESENTENCING
BECAUSE THE SENTENCING JUDGE'S BELIEF THAT HE
WAS REQUIRED TO SENTENCE DEFENDANT TO A 36-
MONTH PAROLE DISQUALIFIER ON A FIVE-YEAR BASE
EXTENDED TERM CONFLICTED WITH THE PLEA
AGREEMENT, WHICH SPECIFICALLY PROVIDED THAT
DEFENDANT COULD BE SENTENCED TO A PAROLE
DISQUALIFIER OF 20 MONTHS.
When reviewing a motion to suppress, we "must 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. Rockford, 213 N.J. 424, 440 (2013) (quoting
State v. Robinson, 200 N.J. 1, 15 (2009)). "Those findings warrant
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particular deference when they are 'substantially influenced by
[the trial judge's] opportunity to hear and see the witnesses and
to have the "feel" of the case, which the reviewing court cannot
enjoy.'" Ibid. (alteration in original) (quoting Robinson, supra,
200 N.J. at 15). "To the extent that the trial court's
determination rests upon a legal conclusion, we conduct a de novo,
plenary review." Ibid. (citing State v. J.D., 211 N.J. 344, 354
(2012); State v. Gandhi, 201 N.J. 161, 176 (2010)). In applying
this standard, we reject defendant's contention that the trial
judge erred by denying his motion to suppress.
The United States and New Jersey Constitutions permit a brief
investigative stop of a vehicle based on reasonable suspicion
"that an offense, including a minor traffic offense, has been or
is being committed." State v. Amelio, 197 N.J. 207, 211 (2008)
(quoting State v. Carty, 170 N.J. 632, 639-40, modified by 174
N.J. 351 (2002)), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402,
173 L. Ed. 2d 1297 (2009). An investigatory stop "is valid if it
is based on specific and articulable facts which, taken together
with rational inferences from those facts, give rise to a
reasonable suspicion of criminal activity." State v. Mann, 203
N.J. 328, 338 (2010) (quoting State v. Pineiro, 181 N.J. 13, 20
(2004)). "The burden is on the State to demonstrate by a
preponderance of the evidence that it possessed sufficient
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information to give rise to the required level of suspicion."
Amelio, supra, 197 N.J. at 211.
Reasonable suspicion of "[a] motor vehicular violation, no
matter how minor, justifies a stop [even] without any reasonable
suspicion that the motorist has committed a crime or other unlawful
act." State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div.
2011). "To satisfy the articulable and reasonable suspicion
standard, the State is not required to prove that the suspected
motor-vehicle violation occurred." State v. Locurto, 157 N.J.
463, 470 (1999). That is, "the State need prove only that the
police lawfully stopped the car, not that it could convict the
driver of the motor-vehicle offense." State v. Heisler, 422 N.J.
Super. 399, 413 (App. Div. 2011) (quoting State v. Williamson, 138
N.J. 302, 304 (1994)). The State must also show that an officer's
belief that a traffic violation actually occurred must be
objectively reasonable. State v. Puzio, 379 N.J. Super. 378, 383
(App. Div. 2005). However, the "fact that information an officer
considers is ultimately determined to be inaccurate . . . does not
invalidate a seizure." State v. Pitcher, 379 N.J. Super. 308, 318
(App. Div. 2005), certif. denied, 186 N.J. 242 (2006).
The officer who pulled over defendant's vehicle testified
that he observed defendant make a right turn without signaling.
Defendant maintains the evidence at the motion to suppress hearing
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was insufficient to prove that his failure to signal had the
potential to affect traffic. N.J.S.A. 39:4-126 provides that
"[n]o person shall so turn any vehicle without giving an
appropriate signal . . . in the event any other traffic may be
affected by such movement." The judge found the officer, who he
believed, followed defendant's vehicle and observed that defendant
failed to activate the directional signal. The reference to "other
traffic" in the statute "could include a trooper's vehicle." See
Williamson, supra, 138 N.J. at 304. Such is the case here.
Our review of sentencing determinations is limited. State
v. Roth, 95 N.J. 334, 364-65 (1984). We will ordinarily not
disturb a sentence unless it is manifestly excessive or unduly
punitive, constitutes an abuse of discretion, or shocks the
judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16,
220 (1989). In sentencing, the trial court "first must identify
any relevant aggravating and mitigating factors set forth in
N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v.
Case, 220 N.J. 49, 64 (2014). The court must then "determine
which factors are supported by a preponderance of [the] evidence,
balance the relevant factors, and explain how it arrives at the
appropriate sentence." O'Donnell, supra, 117 N.J. at 215.
The judge sentenced defendant to five years in prison with
three years of parole ineligibility. Defendant argues that even
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though he entered an open guilty plea, the colloquy at the plea
hearing supports his understanding that he would receive a twenty-
month parole disqualifier. The record reflects discussion between
the court and counsel on the subject of defendant's minimum period
of parole ineligibility.
Defendant entered an open plea, meaning one without a sentence
recommendation from the State or a sentencing indication from the
court. Thus, there was no agreement as to the minimum period of
parole ineligibility. Paragraph thirteen of the plea papers states
"[p]lea is open. Defendant to be sentenced to an extended term
pursuant to [N.J.S.A. 2C:43-6(f)]. The State will move for
imposition of the extended term at the time of sentence." That
statute fixes a three-year period of parole ineligibility.
Anything less is illegal.
At oral argument before us, the State conceded defendant was
entitled to a remand so that he may file a motion to withdraw his
guilty plea. That is so because the record demonstrates defendant
may have believed he would have received a twenty-month period of
parole ineligibility. Remanding will give the parties and the
court an opportunity to more fully develop the record and
adjudicate disposition of the motion to vacate the plea. We do
not retain jurisdiction.
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