SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
Submitted May 25, 2011 – Decided June 7, 2011
Before Judges R. B. Coleman and J. N. Harris.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-09-2160.
PER CURIAM
Defendant Grover Plummer was convicted by a jury of two counts of third-degree possession of controlled dangerous substances, N.J.S.A. 2C:35-10(a), and sentenced to an aggregate term of imprisonment of five years.[1] He appeals, and raises the following arguments:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS.
POINT II: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW)
POINT III: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AS A RESULT OF THE TRIAL COURT'S DECISION TO IMPOSE A DISCRETIONARY EXTENDED TERM.
POINT IV: THE TRIAL COURT COULD NOT PROPERLY HAVE IMPOSED A DISCRETIONARY EXTENDED TERM ON COUNT I AS WELL AS ON COUNT II. (NOT RAISED BELOW)
From our review of the record, we are satisfied that none of these points are meritorious, except for Point IV. We affirm the conviction and aggregate sentence, but remand for clarification of the judgment of conviction to eliminate one of the two extended terms.
I.
On May 28, 2010, five Asbury Park police officers were engaged in a street crime operation when one received information suggesting that Plummer —— known locally as Gaggi —— was selling controlled dangerous substances along Springwood Avenue.[2] Sergeant Michael Barnes and Officer Lorenzo Petway drove an undercover vehicle to the vicinity of Springwood Avenue and began making observations of Plummer, who was on Ridge Avenue. Seeing nothing amiss, the police officers nevertheless decided to approach Plummer, who at that point was approximately 100 feet away. Plummer was walking towards the police officers, but when they were about twelve feet apart, Plummer looked up, turned, and jogged away in the opposite direction. The police officers followed, but almost immediately Plummer tripped at the curb and fell while the police were approximately four to six feet away. As he fell, Plummer let go of an object that he was holding in his right hand. As it hit the pavement, Sergeant Barnes saw that it was "an off white object." When he retrieved it, Sergeant Barnes observed, "it was inside of a clear plastic, similar to a plastic bag that —— torn off of it, like it was pinched off and twisted at the end. And then [Sergeant Barnes] looked at it, and through [his] training and experience [he] recognized it to be crack cocaine."
The remaining four police officers attempted to subdue and handcuff Plummer, who resisted their efforts to do so. Eventually, he was restrained and placed under arrest, and in the resultant search of his person, a bag containing nine bags of heroin was found clutched in Plummer's left hand, together with paraphernalia used to ingest crack cocaine.
Plummer claims that when he first encountered the police officers, he thought he was about to be robbed by "gang bangers and stuff around here."[3] At the suppression motion he testified,
I didn't even know who it was. I didn't know who it was. Because it could have been, you know, somebody coming to rob me or beat me up or anything, because I ain't too long —— I just got home from my being incarcerated. So I didn't know who it was when they pulled me. Then, later I find out that it was the cops.
Plummer claimed that the police officers were neither wearing badges nor other identification, and they did not announce who they were. Wary of the situation, Plummer said that it was his intention to flee. However, because he had recently suffered a stroke he was unable to run, and instead fell. The police officers then "jumped on top of [him]" while he was yelling, "I ain't got nothing." Plummer adamantly denied possessing any drugs.
II.
A.
Plummer first argues that the Law Division erred in not suppressing the evidence seized from him on the day of his arrest. He asserts that the police lacked probable cause to conduct a warrantless search, and that the State's reliance on the sequelae of a field inquiry, as opposed to an investigative detention, was baseless. The Law Division determined that if Plummer's version were to be credited, then "this clearly never reached the stage of a Terry[[4]] stop until the police were on top of him." Accordingly, because there was no order to stop —— indeed, there was no tangible interaction between Plummer and the police officers because Plummer fled upon fearing for his safety without knowing their identity —— the recovery of the evidence was appropriate because it came into plain view due to the conduct of Plummer.
Alternatively, the Law Division held that due to the informant's specific disclosures, which were confirmed by Plummer being located at the place and time indicated by the informant, the police had probable cause to minimally engage Plummer, even though at the time they had not personally witnessed any criminal activities. Thus, in primary reliance upon State v. Hughes, 296 N.J. Super. 291, 296 (App. Div.) (defendant on a bicycle held to have abandoned a container filled with bags of cocaine, because he threw the container against a curb when he noticed a police car approaching, but before he was seized or ordered to stop), certif. denied, 149 N.J. 410 (1997), the Law Division concluded that the seizure of the evidence did not offend the Fourth Amendment, and denied the motion to suppress.
We recognize that under the Fourth Amendment and Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981). Here such an exception to the warrant requirement is fulfilled under the "stop and frisk" principles enunciated in Terry. Also, when the police officers initially approached Plummer on the street, they "were permitted to make a field inquiry 'without grounds for suspicion.'" State v. Maryland, 167 N.J. 471, 483 (2001); see also State v. Pineiro, 181 N.J. 13, 20 (2004) (defining a field inquiry as "the least intrusive encounter, which occurs when a police officer approaches an individual and asks 'if [he or she] is willing to answer some questions'" (quoting State v. Nishina, 175 N.J. 502, 510 (2003))). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing or accusatory in nature.'" Pineiro, supra, 181 N.J. at 20.
The police officers had a justified basis to stop Plummer and ask about his identity and why he was in the area. Of course, the situation never even reached that stage, because Plummer turned and tried to run. His reckless, self-created conduct resulted in his dropping the cocaine, which triggered the plain view exception to the warrant requirement.
A warrant is not required to perform a search when a police officer is (1) lawfully present in the viewing area, (2) the officer inadvertently discovers the evidence in plain view, and (3) it is "immediately apparent" to the police officer that the "items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002); see also State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). The motion judge credited Sergeant Barnes's observations of Plummer's conduct, which resulted in the revelation of the contraband. We defer to the motion judge's adoption of such factual narrative. See State v. Mann, 203 N.J. 328, 336-37 (2010); State v. Locurto, 157 N.J. 463, 474 (1999). As such, we have no basis to disturb the Law Division's decision to uphold the seizure of the evidence and allow its use during trial.
B.
Plummer next argues that the prosecutor's summation exceeded the bounds of propriety. Specifically, Plummer takes issue with two comments about the jury's credibility assessment of the testifying police officers, who were said to "have no stake here, their lives don't change no matter what you come back with." These comments were in response to defense counsel's strident arguments that the police officers were possibly corrupt, had planted the contraband on Plummer, and had likely lied to support one another during the trial.
Because Plummer did not object to the prosecutor's comments at the time of the summation, we review this argument under the lens of plain error as articulated in Rule 2:10-2. Under this standard, we will not reverse on the basis of such error unless we find it was "clearly capable of producing an unjust result." Ibid. The possibility of producing an unjust result "must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Moreover, our assessment of plain error "depends on an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006). Furthermore, the absence of an objection at the time the alleged error occurred may well indicate that counsel did not consider such error to be significant in the context of the trial. Macon, supra, 57 N.J. at 333.
We find that the summation comments were entirely incapable of producing the undue prejudice claimed by Plummer. Not only were they fleeting in nature, but they were both accurate and fair comments. The claim that having no stake in the outcome of the case somehow unjustly bolsters the police officers' credibility borders on the far-fetched.
A prosecutor's "'primary duty . . . is not to obtain convictions, but to see that justice is done.'" State v. Frost, 158 N.J. 76, 83 (1999) (quoting State v. Ramseur, 106 N.J. 123, 320 (1987)). In summation, prosecutors may "make vigorous and forceful closing arguments to juries" based on the evidence and all reasonable inferences. State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Additionally, they may vigorously rebut specific arguments made by defense counsel. State v. Mahoney, 188 N.J. 359, 376-77 (2006), cert. denied, 549 U.S. 995, 127 S. Ct. 507, 166 L. Ed. 2d 368 (2006). We are satisfied that the challenged commentary in this case falls well within the mainstream of permissible comment during summation by a prosecutor and does not warrant our intervention.
C.
Plummer's next two arguments challenge the sentence imposed by the Law Division. In particular, he contends that the imposition of an extended term was unwarranted and the five-year period of incarceration was manifestly excessive. These arguments lack sufficient merit to warrant extended discussion in this opinion. See R. 2:11-3(e)(2).
Our review of sentencing decisions is "relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). Plummer was concededly extended-term-eligible in light of his age, extensive prior criminal history, and nature of the crimes for which he was convicted. N.J.S.A. 2C:44-3(a). Furthermore, the circumstance that the aggregate term in this case lies within the range of third-degree crimes fortifies the view that it does not shock the conscience. See State v. Bieniek, 200 N.J. 601, 612 (2010); State v. Roth, 95 N.J. 334, 365-66 (1984). Therefore, the sentence imposed by the court was neither an abuse of discretion, nor manifestly unjust.
The judgment of conviction, however, must be clarified and corrected in one respect. Because the sentencing judge imposed similar —— if not identical —— five-year sentences on counts one and two, without expressly indicating which count would bear the extended term, it is plausible that extended terms were imposed on both. If that is what the sentencing court intended, it was in error, as there may be only one extended term pursuant to N.J.S.A. 2C:44-5(a)(2). See State v. Papasavvas, 163 N.J. 565, 627 (2000) ("[A] court may impose only one extended term on one sentencing occasion."). The case is remanded solely for the purpose of clarifying the judgment of conviction to eliminate one count from the extended term calculus.
[1] Following the jury verdict, the Law Division tried Plummer on related disorderly persons charges of possession of drug paraphernalia, N.J.S.A. 2C:36-2, and resisting arrest, N.J.S.A. 2C:29-2(a)(1). The court found Plummer guilty, and imposed terms of incarceration of thirty days and ninety days respectively, to be served concurrently with the two concurrent five-year terms for the indictable offenses.
[2] The record indicates that Springwood Avenue is also known as Lake Avenue.
[3] Plummer testified only during the motion to suppress, and not at the trial.
[4] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)
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