State v. Desir

• Decision Date: 22 December 2020
• Docket Number: DOCKET NO. A-3581-18T1
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEFFREY DESIR, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEFFREY DESIR, Defendant-Appellant.

DOCKET NO. A-3581-18T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued November 30, 2020

December 22, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 008-04-18.

Santo T. Alampi argued the cause for appellant (Alampi & De Marrais, attorneys; Santo T. Alampi, on the brief).

Craig A. Becker, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; Craig A. Becker, on the brief).

PER CURIAM

Defendant Jeffrey Desir appeals from a March 11, 2019 order of the Law Division finding him guilty of three drug-related offenses after a de novo review of the record from the municipal court proceeding in accordance with Rule 3:23-8. We affirm.

We summarize the facts from the municipal court proceeding. On April 3, 2017, Officer Gil Maynard saw a man using his cellphone while driving. According to the officer, the driver "had his cell phone in his hand, and it was up to be seen . . . . [H]e was holding it in his right hand as he was driving." Maynard was unable to recall if the driver was talking on the speakerphone but "remember[ed] seeing the illumination of the cell phone . . . ." Based on these observations, the officer initiated a traffic stop. Prior to stopping the car, Maynard noticed the "license plate frame obstruct[ed] . . . a clear view of [the] license plate," in violation of New Jersey law. In reviewing the driver's credentials, Maynard identified the driver as Desir.

As Officer Maynard approached the vehicle, he "could smell the odor of marijuana," which he identified based on his police academy training. When Maynard asked about the marijuana smell, defendant said he smoked marijuana earlier. The officer asked defendant to step out of the car and called for backup. According to Maynard, defendant "was trembling, as if he was nervous."

Officer Maynard advised defendant that he would conduct a search the car based on the marijuana smell. During the search, defendant waited with Officer Joseph Windt, who responded to Maynard's call for backup.

Officer Maynard's search produced a "bag of greenish-brown vegetation" under the driver's seat, "a small envelope of rolling papers" hidden in the center console, and "a large amount of money . . . located in the glove compartment." The officer confronted defendant with these findings and saw defendant "grabbing at his pants . . . specifically in the groin area. And every time [defendant] pulled on his pants, [Officer Maynard] could smell marijuana, . . . which made [him] believe that there was something hidden in his pants." Defendant was arrested and taken to the police station.

At the station, Officer Maynard searched defendant. Although the officer found nothing initially, he continued to smell marijuana. In accordance with standard police procedure, Maynard attempted to remove defendant's belt. As soon as the officer grasped the belt, defendant spun towards Maynard and grabbed him. Because he continued to resist removal of his belt, additional officers had to restrain defendant.

A higher-ranking officer intervened and spoke with defendant, instructing him to cooperate. Defendant reached down into his pants and "pulled out three bags. One clear bag containing a . . . white, powderysubstance, with rocks in it that looked like . . . crack cocaine . . . [a]nd then . . . two smaller bags of a green vegetation which [Maynard] believed to be marijuana."

Defendant was charged with the following offenses: operating a vehicle while in possession of narcotics, N.J.S.A. 39:4-49.1; improper use of a cell phone while driving, N.J.S.A. 39:4-97.3; delaying traffic, N.J.S.A. 39:4-56; improper display or obstruction of a license plate, N.J.S.A. 39:3-33; failure to wear a seatbelt, N.J.S.A. 39:76.2(f); possession of marijuana, N.J.S.A. 2C:35-10(a)(4); possession of drug paraphernalia, N.J.S.A. 2C:36-2; resisting arrest, N.J.S.A. 2C:29-2(a)(1); and failure to turn over a controlled dangerous substance (CDS), N.J.S.A. 2C:36-10(c)(5).

A municipal court trial took place on February 28, 2018. Officers Maynard and Windt testified on behalf of the State. Defendant, represented by counsel, testified on his own behalf. After hearing the testimony and considering the evidence, the municipal court judge found defendant not guilty of possessing marijuana, delaying traffic, and failing to wear a seatbelt. However, the municipal court judge found defendant guilty of the remaining charges. He determined the officers' testimony to be credible and defendant's testimony "somewhat incoherent," "all over the place," and "absolutely incredible." The municipal court judge sentenced defendant to one-yearprobation, suspended his license for two years, and imposed $3,491 in fines, fees, and court costs.

Defendant appealed his municipal court conviction to the Superior Court, Law Division. Before the Law Division judge, defendant, represented by new counsel, moved for the first time to suppress the physical evidence seized by Officer Maynard. On November 2, 2018, the Law Division judge conducted a trial de novo.

The Law Division judge issued a March 11, 2019 order and written decision, reversing defendant's convictions for improper display or obstruction of a license plate, resisting arrest, and improper use of a cell phone while driving. He upheld defendant's convictions for possession of drug paraphernalia, failure to turn over CDS, and operation of a motor vehicle while in possession of narcotics. Collectively, the Law Division judge sentenced defendant to one year of probation, two years' suspension of defendant's New Jersey driving privileges and $3,491 in fines, fees, and court costs.

On appeal, defendant raises the following arguments:

Point I

DEFENDANT/APPELLANT DID SHOW GOOD CAUSE WARRANTING CONSIDERATION OF DEFENDANT/APPELLANT'S SUPPRESSION MOTION.

Point II

DEFENDANT/APPELLANT WAS IMPROPERLY STOPPED ON APRIL 3, 2017 AND COUNSEL SHOULD HAVE MADE AN APPROPRIATE MOTION TO DISMISS AND SUPPRESS.

Point III

ASSUMING ARGUENDO THAT THE INITIAL MOTOR VEHICLE STOP WAS VALID, THE WARRENTLES SEARCH OF THE MOTOR VEHICLE WAS ILLEGAL.

"[A]ppellate review of a municipal appeal to the Law Division is limited to 'the action of the Law Division and not that of the municipal court.'" State v. Hannah, 448 N.J. Super. 78, 94 (App. Div. 2016) (quoting State v. Palma, 219 N.J. 584, 591-92 (2014)). "In reviewing a trial court's decision on a municipal appeal, we determine whether sufficient credible evidence in the record supports the Law Division's decision." State v. Monaco, 444 N.J. Super. 539, 549 (App. Div. 2016). We must "determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). "When the reviewing court is satisfied that the findings and result meet this criterion, its task is complete and it should not disturb the result . . . ." Ibid.

A review of a municipal court conviction by the Superior Court is conducted de novo on the record. R. 3:23-8. The Superior Court should deferto the municipal court's credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing Johnson, 42 N.J. at 161-62). However, "[o]n a de novo review on the record, the reviewing court . . . is obliged to make independent findings of fact and conclusions of law, determining defendant's guilt independently but for deference to the municipal court's credibility findings." Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 3:23-8 (2021).

We first consider defendant's argument that the Law Division judge erred in refusing to consider the motion to suppress evidence despite his failure to raise the issue in the municipal court.¹ He asserts there was good cause to excuse the failure to file a motion to suppress because he relied on his municipal court counsel, "was unaware of the procedural require[ments] with respect to such a motion," and did not know the failure to raise such a motion would constitute a waiver of that argument.

Rule 7:5-2(d), governing motions to suppress evidence, provides: "Unless otherwise ordered by the court for good cause, defendant's failure to make a pretrial motion to the municipal court pursuant to this rule shall constitute a waiver of any objection during trial to the admission of the evidence on the ground that the evidence was unlawfully obtained." Inaddition, "issues not raised below will not be considered" unless "the issue is of special significance to the litigant, to the public, or to the achievement of substantial justice, and the record is sufficiently complete to permit its adjudication . . . ." Borough of Keyport v. Maropakis, 332 N.J. Super. 210, 216 (App. Div. 2000) (first citing Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 391 (1997) and then citing Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218, 230 (1998)).

Here, the Law Division judge found defendant "had the opportunity to raise the suppression issue before the [municipal] court but failed to do so" and failed to establish good cause to excuse his misstep, rendering it inappropriate for the suppression issue to be raised for the first time on the appeal to the Law Division.

Nevertheless, the Law Division judge considered the merits of a motion to suppress the physical evidence as if it had been raised in the municipal court proceeding. Defendant argued the traffic stop was improper because there was no "articulable and reasonable suspicion" supporting the stop. The Law Division judge concluded that had the suppression...