State v. Vega

• Decision Date: 27 December 2019
• Docket Number: DOCKET NO. A-0935-17T3,DOCKET NO. A-2153-17T2
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALDABERTO VEGA, a/k/a ADALBERTO VEGA, ALBERTO VEGA, ALBERTA BEGA, and TITO VEGA, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. TIMOTHY L. BETHEA, a/k/a L.R. ALLAH, TIM BETHEA and I RULE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALDABERTO VEGA, a/k/a ADALBERTO VEGA,ALBERTO VEGA, ALBERTA BEGA, and TITO VEGA, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. TIMOTHY L. BETHEA, a/k/a L.R. ALLAH, TIM BETHEA and I RULE, Defendant-Appellant.

DOCKET NO. A-0935-17T3

DOCKET NO. A-2153-17T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted and Argued: December 4, 2019

December 27, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Submitted (A-0935-17) and Argued (A-2153-17) December 4, 2019 - Decided December 27, 2019

Before Judges Haas, Mayer and Enright.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 15-06-1138.

Joseph E. Krakora, Public Defender, attorney for appellant in A-0935-17 (Kevin G. Byrnes, Designated Counsel, on the brief).

David A. Gies, Designated Counsel, argued the cause for appellant in A-2153-17 (Joseph E. Krakora, Public Defender, attorney; David A. Gies, on the brief).

Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent in A-0935-17 (Lisa Sarnoff Gochman, Assistant Prosecutor, of counsel and on the brief).

Carey J. Huff, Assistant Prosecutor, argued the cause for respondent in A-2153-17 (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Lisa Sarnoff Gochman, of counsel and on the brief).

PER CURIAM

In these back-to-back appeals, which we now consolidate for purposes of this opinion only, defendants Timothy Bethea and Aldaberto Vega challenge their convictions and sentences following a joint jury trial. We affirm in all respects in both appeals.

A Hudson County grand jury returned an indictment charging Bethea and Vega each with two counts of third-degree possession of a controlled dangeroussubstance (CDS), namely heroin and cocaine, N.J.S.A. 2C:35-10(a)(1) (counts one and five); two counts of third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (counts two and six); two counts of third-degree possession of CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (counts three and seven); and two counts of second-degree possession of a CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (counts four and eight). Additionally, Vega was indicted on one count of fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count nine).

In May 2016, the motion judge conducted a hearing regarding defendants' joint motions to suppress evidence seized with, and without, a warrant. He denied both motions in June 2016. In April 2017, the judge granted the State's motion to dismiss counts four and eight.

Defendants were tried together and, at the close of the State's case, Vega moved for a judgment of acquittal, pursuant to Rule 3:18-1, on counts one, two, three, five, six and seven of the indictment. The trial judge (who also presided over the suppression hearing and defendants' sentencings) denied the motion. When the multi-day trial concluded in May 2017, a unanimous jury found Bethea guilty on all counts and found Vega guilty on counts one, two, three, andnine, but acquitted him on those counts involving cocaine, i.e., counts five through seven. In July 2017, Vega pled guilty to fourth-degree obstruction, N.J.S.A. 2C:29-1, and simple assault, N.J.S.A. 2C:12-1A(1), under a separate accusation.¹

On August 2, 2017, the trial judge sentenced both defendants. He granted the State's motion to sentence Bethea to a mandatory extended term, under N.J.S.A. 2C:43-6(f), on counts three and seven. The judge merged counts one and two; count two was merged into count three. He also merged counts five and six into count seven. Counts four and eight were dismissed. The judge imposed concurrent sentences on counts three and seven, and sentenced Bethea to an aggregate term of eight years with a minimum parole ineligibility period of four years on both counts. Further, the judge suspended Bethea's driver's license for forty-eight months on counts three and seven, with the suspensions to run concurrent to one another.

Vega was sentenced the same day as Bethea. He again moved for a judgment of acquittal and for a new trial on counts one, two, three and nine at sentencing. The trial judge denied his application and imposed sentence. Hefirst merged counts one and two; count two was merged into count three. Counts four, five, six, seven and eight were dismissed. The judge sentenced Vega to a prison term of five years with a three-year period of parole ineligibility on count three and imposed additional penalties and fees. Count nine was amended to a disorderly persons hindering offense, and Vega was sentenced to fines only.

The sentencing judge conducted a qualitative aggravating and mitigating factor analysis for each defendant's sentence. He found aggravating factors N.J.S.A. 2C:44-1(a)(3) (the risk of reoffense), N.J.S.A. 2C:44-1(a)(6) (a prior criminal record), and N.J.S.A. 2C:44-1(a)(9) (the need to deter), as well as mitigating factor N.J.S.A. 2C:44-1(b)(11) (imprisonment will result in excessive hardship to defendant and his family). For Bethea's sentence, the judge found "the aggravating factors clearly outweigh the mitigating factor[]"; for Vega's sentence, the judge determined the aggravating factors outweighed the mitigating factor.

On appeal, defendant Bethea raises the following arguments:

POINT ONE

THE MOTION JUDGE'S LEGAL CONCLUSIONS REGARDING THE INITIAL DETENTION, THE PATROLMAN'S ENTRY INTO THE SUV WITHOUT CONSENT AND THE SUBSEQUENT SEARCH OF DEFENDANT'S PERSON WITHOUT A WARRANT ARE ERRONEOUS AND REQUIRE REVERSAL.

A. THE PATROLMAN'S INITIAL DETENTION OF THE TAHOE WAS AN INVESTIGATORY STOP WHICH WAS THE RESULT OF AN INARTICULABLE SUSPICION THAT CRIMINAL ACTIVITY WAS AFOOT.

B. THE PATROLMAN'S ENTRY INTO THE REAR PASSENGER COMPARTMENT OF THE TAHOE WAS WITHOUT CONSENT OR A REASONABLE AND ARTICULABLE SUSPICION THAT DEFENDANT WAS ARMED.

(i) The incriminating evidence inside the Tahoe seized without a search warrant was not in the patrolman's plain view.

(ii) The incriminating evidence inside the Tahoe seized without a search warrant was not based on a reasonable and articulable suspicion that defendant was armed or dangerous.

(iii) Conclusion.

C. THE SEARCH OF DEFENDANT AFTER HE WAS IN CUSTODY CANNOT BE JUSTIFIED AS ONE INCIDENT TO HIS ARREST.

D. CONCLUSION.

POINT TWO

THE EVIDENCE SEIZED FROM THE SUV WITH A SEARCH WARRANT CANNOT BE ATTENUATED FROM THE TAINT OF THE UNCONSTITUTIONAL CONDUCT ON THE PART OF THE PATROLMAN.

POINT THREE

THE SENTENCING JUDGE'S IMPOSITION OF A FOUR-YEAR PERIOD OF PAROLE INELIGIBILITY IS ERROR WHERE IT DID NOT FIND THAT THE AGGRAVATING FACTORS SUBSTANTIALLY OUTWEIGH THE MITIGATING FACTORS.

On appeal defendant Vega raises the following arguments:

POINT I

THE DEFENDANT-PASSENGER'S MOTION TO DISMISS DUE TO INSUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE KNOWLEDGE (LET ALONE CONTROL) SHOULD NOT BE IMPUTED TO THE PASSENGER WHEN POLICE FIND DRUGS IN THE DRIVER'S GIRLFRIEND'S VEHICLE CONCEALED IN THE DRIVER'S GIRLFRIEND'S SWEATSHIRT.

POINT II

JURORS ASKED FOR CLARIFICATION AND A "LAY" DEFINITION OF THE LAW OF CONSTRUCTIVE POSSESSION AND THE TRIAL COURT MERELY REREAD THE SAME INSTRUCTION, WITHOUT A FACTUAL CONTEXT, WHICH DID NOTHING TO ALLEVIATE THEIR CONFUSION. (Not Raised Below).

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, [¶]1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE

TRIAL COURT'S FAILURE TO INSTRUCT THE JURORS ON ALL THE ESSENTIAL ELEMENTS OF INTENT TO DISTRIBUTE CDS. (Not raised below).

POINT IV

THE CONVICTION FOR INTENT TO DISTRIBUTE CDS SHOULD BE VACATED BECAUSE A POLICE WITNESS IMPROPERLY AND PREJUDICIALLY RENDERED AN OPINION THAT THE VEHICLE OCCUPANTS WERE IN THE PARKING LOT "ABOUT TO PERFORM A NARCOTICS TRANSACTION." [(Not Raised Below).]

POINT V

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, [ ¶] 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS SEARCH AND SEIZURE.

A. The Police Encounter Constituted an Illegal Detention.

1. The Police Encounter was a Detention.

2. The Police Lacked Articulable Facts Giving Rise to Reasonable Suspicion to Justify the Detention.

B. The Warrantless Search of Clothes Inside the Vehicle was Unlawful.

POINT VI

THE SENTENCE IS EXCESSIVE.

After reviewing the record in light of the contentions raised by each defendant on appeal, we affirm.

I.

To place these issues in their proper context, we begin by reciting the salient facts pertaining to defendants' convictions and sentences, including facts found by the motion judge after defendants' suppression hearing.

On the evening of June 13, 2014, Officers Kaan Williams and Frank Maletto, of the Neptune Township Police Department, went to a motel in Neptune Township. The motel was known as a high crime area. Officer Williams testified at the suppression hearing that police made many arrests there and that prior to the June 13 incident, a confidential informant notified him a man known as "O.B." was conducting narcotics transactions out of a room at the motel.

When the police arrived at the motel on June 13, Officer Williams noticed a Tahoe parked in the lot away from any of the doors to the motel, even though there were several open spaces closer to the entrance of the motel. Officer Williams noticed the Tahoe was occupied by two men. He recalled the driver, an African American male later identified as Bethea, appeared to be using hiscell phone. The passenger, a Hispanic male, later identified as Vega, was looking out the window.

After observing the men for several...