STATE OF NEW JERSEY VS. BRIAN A. MOORE (14-09-2679, CAMDEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2528-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRIAN A. MOORE, a/k/a
BRIAN J. MOORE, and
DAVID J. MOORE,
Defendant-Appellant.
Submitted October 31, 2018 – Decided January 31, 2019
Before Judges Alvarez and Reisner.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 14-09-2679.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michael J. Confusione, Designated Counsel,
on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Adam D. Klein, Deputy Attorney General,
of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Tried to a jury, defendant Brian A. Moore was convicted of first-degree
human trafficking by facilitating access to controlled dangerous substances
(CDS), N.J.S.A. 2C:13-8(a)(1)(g) (counts four through seven); first-degree
human trafficking by receiving value as an organizer, N.J.S.A. 2C:13-8(a)(2)
(amended count eight); 1 and third-degree promoting prostitution, N.J.S.A.
2C:34-1(b)(2) (counts nine through fourteen). The jury acquitted defendant of
first-degree human trafficking by causing or threatening to cause serious bodily
harm, N.J.S.A. 2C:13-8(a)(1)(a) (counts one through three). During the trial,
defendant was self-represented but had available the services of standby
counsel.2 On December 21, 2016, the judge sentenced defendant to the
mandatory term of twenty years imprisonment without parole on merged counts
four through eight. See N.J.S.A. 2C:13-8(d). Concurrent terms of four years
subject to two years of parole ineligibility were imposed on each of the
remaining convictions. Defendant appeals and we affirm.
1
On March 29, 2016, the judge before trial corrected the statutory cite on that
count of the indictment to conform to the substance of the charge. For that
reason, the final judgment describes it as an "amended" count.
2
Defendant's first trial resulted in a mistrial. He then represented himself as
well, however, he had a different standby attorney in multiple proceedings.
A-2528-16T3
2
The facts derived from the motion and trial record can be briefly
summarized. On March 5, 2014, a Cherry Hill Police Department Special
Investigations Unit officer arranged for a meeting with a suspected prostitute ,
whose suggestive photograph, name, and number were posted on a website
known to advertise such services. The officer scheduled a meeting with "Tori"
at a local motel at 8:00 p.m.
During police surveillance of the motel parking lot, defendant's gray
Infiniti was observed discharging Tori at the front door of the building. The
officer, in the guise of being a patron, admitted her into one of two adjoining
motel rooms investigators had rented, and asked her about the cost of her
services and the available options. After Tori responded, the officer placed $250
on a table. Tori put the money in her pocketbook and went into the bathroom to
change. At that point, the officers in the adjoining room entered and confronted
her. Tori acknowledged the reason for her presence and said her ride would
return in an hour. When the Infiniti drove up to the motel front doors, defendant,
who was driving, was arrested and searched.
Meanwhile, Tori told the officers that she feared defendant, whom she
described as her pimp. She disclosed that she and three other women he
controlled lived in a nearby motel room. Officers went to the location, rented
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in the name of one of the women. With her written consent, they searched the
room and seized defendant's laptop, a box of syringes, and three cell phones.
All the women described to police the same business organization as had Tori:
defendant drove the women to their assignations as prostitutes and to the city to
buy drugs. On occasion, he would assault them if he perceived them to be
disrespectful to him or thought they had stolen money from him. He collected
their earnings, allowing them different percentages but at least enough cash back
to purchase drugs and cigarettes. The women described being photographed in
provocative garb so their pictures could be posted on the prostitution web page.
Defendant's laptop computer and cell phones, including the one seized
from his Infiniti when it was moved into a parking space to await the arrival of
a tow truck, were introduced into evidence at trial. The photographs and cell
phone extraction information from the devices, obtained on a warrant, further
corroborated the women's statements regarding defendant's prostitution ring.
Defendant's counseled brief raises the following points:
Point 1
The trial court erred in denying defendant's motion to
suppress the invalid arrest warrant
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Point 2
The trial court erred in denying defendant's motion to
suppress the policeman's warrantless seizure of
defendant's watch, wallet, and cell phone
Point 3
Defendant's right to a fair jury trial was infringed
Point 4
Defendant's sentence is improper and excessive
Defendant's uncounseled brief raises the following points:
Point 1
The trial court erred in denying defendant's motion to
suppress all evidence associated with the complaint
warrant
Point 2
The trial court erred denying defendant's motion to
suppress evidence derived from warrantless search and
seizure of defendant's residence
Point 3
The trial court erred denying defendant's motion to
suppress evidence from warrantless search of
automobile
Point 4
The trial court erred denying defendant's motion to
dismiss pursuant [to] R. 3:25-3 unreasonable delay
Point 5
Defendant's Sixth Amendment right has been violated
via ineffective counsel
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Point 6
Defendant's Sixth Amendment right to a fair trial was
violated by means of withholding discovery
Point 7
Defendant was denied fair trial by means of
prosecutorial misconduct in closing arguments
Point 8
The trial court erred denying defendant's motion to
suppress evidence derived from violation of the New
Jersey Wiretap Act
Point 9
The trial court erred denying defendant's recusal
motion, denying defendant's right to a fair and impartial
trial
I.
We consider defendant's uncounseled brief to raise points of error so
lacking in merit as to not warrant discussion in a written opinion. R.
2:11-3(e)(2). In the main, they are claims made based on general recitation of
law having no relevance to the facts as revealed in the trial record. For example,
the alleged New Jersey Wiretapping and Electronic Surveillance Control Act
(the Act) violation is simply inapposite—defendant mistakenly believes it
applies to a call one of the women made of her own volition to his cell phone.
See N.J.S.A. 2A:156A-1 to -37.
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We do not intend by our citation to Rule 2:11-3(e)(2) to dispose of
defendant's ineffective assistance of counsel claim. Although there is a
legitimate question as to whether the doctrine even applies to the services of
standby counsel, the matter is best left to an application for post-conviction
relief (PCR) under Rule 3:22. See State v. Jones, 219 N.J. 298, 310 (2014)
(holding that "PCR proceedings offer the best opportunity for ineffective
assistance claims to be reviewed"); State v. Preciose, 129 N.J. 451, 459-60
(1992) (holding that "Ineffective-assistance-of-counsel claims are particularly
suited for post-conviction review because they often cannot reasonably be raised
in a prior proceeding.").
II.
Defendant's counseled points also lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). Beginning with point one,
the alleged technical deficiencies found in the arrest warrant are meaningless for
two reasons. First, an arrest warrant later determined to be insufficient can be
amended to remedy any defects. R. 3:3-4(a). Accordingly, while a warrant is
in the process of being cured, "neither the process itself, nor any defendant
brought before the court pursuant to that process, should be dismissed or
discharged." State v. Egles, 308 N.J. Super. 124, 131 (App. Div. 1998). Thus,
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even if the warrant was deficient at the time defendant was arrested, because the
later indictment found the necessary probable cause, such an argument is moot.
Second, the police were actively investigating after Tori's arrest and had ample
probable cause to make a warrantless arrest of defendant. They witnessed him
drop Tori off, she explained that he was her pimp, and the officers witnessed
him return at the time he believed she would have completed providing
prostitution services. It is well-settled that arrest warrants are not required in
all cases. State v. Brown, 205 N.J. 133, 145 (2011). Once defendant committed
a crime in the presence of police officers, an arrest could occur even without a
properly obtained warrant, since police "have full power of arrest for any crime
committed in said officer's presence and committed anywhere within the
territorial limits of the State of New Jersey." N.J.S.A. 40A:14-152.1; see also
State v. Dangerfield, 171 N.J. 446, 460 (2002) (N.J.S.A. 40A:14-152.1
authorizes police to make an arrest when a person commits a crime "in the
presence of the arresting officer."). In other words, the officers saw him
committing a crime.
The trial judge made extensive findings in her June 15, 2016 decision
denying defendant's motion to suppress. We rely upon her analysis in addition
to the inherent lack of merit to the arguments defendant makes.
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The judge found the officers, who she considered "extremely credible,"
had ample probable cause to make the warrantless arrest of defendant. She
further found that their decision to move his car was due to the fact it was parked
at the front door of the motel, and not a parking space, and that they intended to
tow it. Since the officers lawfully entered the vehicle to move it, they had the
right to seize the cell phone they saw in plain view, as it was a likely source of
evidence. A communications data warrant, which is not being challenged, was
obtained to make extractions from the phone. Additionally, the judge rejected
defendant's argument that the use by police of a call from Tori for a ride was a
violation of the Act. The law does not apply to that scenario. The trial judge's
rulings were well supported by the credible evidence in the record. State v.
Mandel, 455 N.J. Super. 109, 113-14 (App. Div. 2018) (citing State v. Boone,
232 N.J. 417, 425-26 (2017)).
Defendant was taken into custody because he committed an offense in the
presence of the officers, and was lawfully searched incident to that arrest. See
State v. Daniels, 393 N.J. Super. 476, 480 (App. Div. 2007). The seizure of the
cell phone from defendant's car was equally lawful because the item was in plain
view. State v. Gonzales, 227 N.J. 77, 90 (2016).
Affirmed.
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