STATE OF NEW JERSEY v. SHAWN AVERY HOBSON ERIC TARVER (2010)

Defendant Shawn Avery Hobson appeals from a final judgment of conviction for distributing, dispensing or possessing a controlled dangerous substance (CDS) on or within 1000 feet of school property, N.J.S.A. 2C:35-7, for which defendant was sentenced to a term of six years imprisonment with a three-year period of parole ineligibility.   On this appeal, defendant's principal contention is that the Law Division erred in denying his motion to suppress evidence.   We reject that contention and affirm the conviction.

Defendant failed to appear at his motion to suppress hearing and now argues the trial court erred by ruling on his motion in his absence.   He also argues the police officers who arrested him lacked reasonable suspicion to justify their actions, and he was denied effective assistance of counsel.   We perceive no merit in any of these arguments.

On June 29, 2000, a Union County Grand Jury returned a six-count indictment charging defendant with four counts of drug-related offenses, one count of aggravated assault and one count of resisting arrest.   Eventually, the matter was scheduled for trial on April 30, 2001, and defendant was informed in writing that a hearing on his motion to suppress evidence would be conducted on April 27, 2001.   Although defense counsel appeared in court on April 27, 2001, defendant did not appear.   After satisfying himself that defendant was aware of the date for the motion to suppress, based on letters from the court and from defense counsel, as well as oral communications from counsel, Judge Ross R. Anzaldi decided to proceed with the motion.

The only witness to testify during the motion to suppress hearing was Officer Christopher Miele of the Elizabeth Police Department.   Miele related that on the morning of January 15, 2000, at approximately 4:00 a.m., he and Officer David Conrad were in an unmarked police car in “an extremely high-narcotics area and a high trafficking area for drugs” when they were flagged down by a pedestrian.   The pedestrian indicated there were two men selling narcotics in the hallway of Building 16 of Pioneer Homes.   As the officers approached the building, they noticed a black male standing on the third-floor landing in front of a window.   The officers also observed a woman entering Building 16, and they followed her through an unlocked door.   The woman ascended to the third-story landing, while the officers stopped at the second-floor landing immediately below.

The officers heard the woman ask someone for “two bags,” which they knew to be a common term for two bags of heroin.   The officers did not see any drugs or money being exchanged at the time, but as they ascended the steps to the third floor, they observed defendant holding two bags of heroin.   The officers identified themselves as such, and defendant ran through the open doorway of an apartment with the two officers in pursuit.   Although they ordered defendant to stop, he continued into the kitchen of the apartment.   Conrad grabbed defendant, who then spun around and punched Conrad in the shoulder and Miele in the chest in an attempt to break free.   The officers forcibly wrestled defendant to the floor and handcuffed him.   A search of defendant's right front pants pocket yielded fifty-four glass vials of suspected cocaine and thirty-nine glassine bags of heroin.

At the conclusion of Officer Miele's testimony and the declaration that the State had no further evidence to offer, defendant's counsel requested that the judge carry the matter until defendant was produced.   The court granted that request and continued the motion to the assigned trial date, April 30, 2001, to give defendant an opportunity to be heard.

Defendant did not appear in court on April 30, and the defense offered no evidence in opposition to the State's proofs.   On that day, Judge Anzaldi reviewed the officer's testimony and concluded the officers had a duty to investigate a citizen's complaint and “they heard what clearly sounded like a drug transaction in progress.”   Further, the court determined that probable cause existed when the officers observed defendant holding two glassine bags of heroin in his hand.   The court also ruled that the police properly entered the apartment under exigent circumstances when defendant ran to avoid arrest and that defendant was properly searched incident to the arrest.   Consequently, the motion to suppress evidence was denied.

On May 6, 2008, seven years after the suppression hearing and following his arrest in North Carolina, defendant was returned to New Jersey.   He then pled guilty to the charge of possession of heroin with intent to distribute within 1000 feet of a school in violation of N.J.S.A. 2C:35-7, in exchange for which, the State agreed to recommend a sentence of seven years in prison with a three-year period of parole ineligibility and the dismissal of all other charges.   Notwithstanding that recommendation, the sentencing judge, without objection from the State, sentenced defendant to a six-year term with a three-year parole disqualifier.   This sentence was to be served concurrently with a North Carolina prison term defendant was already serving.

On appeal, defendant raises the following points:

POINT I:  IT WAS ERROR TO RULE ON THE MOTION TO SUPPRESS IN THE ABSENCE OF DEFENDANT.

POINT II:  THE MOTION TO SUPPRESS WAS ERRONEOUSLY DENIED BECAUSE THE POLICE OFFICERS LACKED REASONABLE SUSPICION OF CRIMINAL ACTIVITY SUFFICIENT TO JUSTIFY THEIR ACTIONS LEADING TO APPELLANT'S UNLAWFUL ARREST.

POINT III:  DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

The United States and New Jersey Constitutions guarantee a criminal defendant the right to confront witnesses that testify against him.   U.S. Const. amend.   VI;  N.J. Const. art.   I, ¶ 10.   An essential element of that guarantee is the right of the accused to be present in the courtroom at every stage of the trial.  Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L. Ed.2d 353, 356, reh'g denied, 398 U.S. 915, 90 S.Ct. 1684, 26 L. Ed.2d 80 (1970) (citing Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L. Ed.2d 1011 (1892));  State v. Smith, 29 N.J. 561, 578, cert. denied, 361 U.S. 861, 80 S.Ct. 120, 4 L. Ed.2d 103 (1959).   We have also recognized that a defendant has a constitutional right to be present at a hearing on a motion to suppress where oral testimony on material issues of fact is to be presented.   State v. Robertson, 333 N.J.Super. 499, 509-10 (App.Div.2000).

However, the right to be present is not absolute.  State v. Whaley, 168 N.J. 94, 100 (2001).   The United States Supreme Court has concluded that once trial has commenced, a defendant who voluntarily absents himself from trial should not prevent the trial from proceeding.  Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 253, 56 L. Ed. 500, 505 (1912).   Our Supreme Court also addressed the issue of waiver in State v. Hudson, 119 N.J. 165, 177 (1990) superseded by Rule as stated in State v. Grenci, 197 N.J. 604, 616 (2009) (explaining “[a]s a result of Hudson, Rule 3:16 was amended to eliminate the distinction between those defendants who knowingly and voluntarily absent themselves after the trial begins and those who do so before it begins”).

In Hudson, two defendants were present in court before the trial commenced, but failed to return for the afternoon session of court.   The trial court determined that they had waived their right to be present and they were tried in absentia.   The Court held:

[A] defendant's inexcusable absence from trial, under circumstances demonstrating knowledge of the time and place of trial, the right to be present, and that the trial may proceed if defendant is absent, constitutes a sufficient basis for a trial court's decision to proceed.   We cannot allow crowded court calendars to be disrupted by defendants who knowingly and voluntarily absent themselves from trial, and then seek reversal of their convictions on the ground that the trial date could conveniently have been rescheduled.

[Id. at 183.]

Consistent with Hudson, Rule 3:16(b) identifies circumstances under which a waiver of a defendant's right to be present at trial may be found:

(a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary and unjustified absence after (1) the defendant has received actual notice in court of the trial date, or (2) trial has commenced in the defendant's presence.

Applying these principles to the facts of this case demonstrates that the defendant clearly received notice of the motion hearing on April 27, 2001, and the scheduled trial on April 30, 2001.   He was informed in person, orally by his counsel and was sent letters confirming the date of the hearing.   The judge did continue the hearing to the already-scheduled trial date, but defendant still did not appear.   Defendant's appellate brief does not offer any reason for his seven-year absence, beyond theorizing that “defendant may have been involuntarily detained, sick or whatever.”   Defendant has the burden to prove that his absence was justified.  State v. Finklea, 147 N.J. 211, 220 (1996).   He clearly did not meet that burden, and we see no reason to disturb the denial of his motion to suppress evidence.

An order granting or denying a motion to suppress is fully enforceable notwithstanding the defendant's failure to appear.   In appropriate circumstances, a defendant's knowing, voluntary, and unjustified absence before or after trial has commenced does not prevent trial from proceeding in absentia.

[State v. Canty, 278 N.J.Super. 80 (1994) (citing Hudson, supra, 119 N.J. at 182) (internal quotations omitted)).]

Invalidating the denial of the motion to suppress here would allow defendant to control and disrupt the court calendar, beyond the extent which has already occurred as a result of his failure to appear for court.  Hudson, supra, 119 N.J. at 183;  Finklea, supra, 147 N.J. at 219-20.   The facts here clearly support the conclusion of the motion judge that defendant's absence was knowing, voluntary and unjustified, and that defendant waived his right to be present at the motion to suppress hearing.

Defendant also argues the evidence should have been suppressed because the police lacked reasonable suspicion of criminal activity to justify their actions leading to his arrest.   We note that appellate review of a trial court's ruling on a motion to suppress evidence is limited.  State v. Robinson, 200 N.J. 1, 15 (2009).   We are obliged to “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. Elders, 192 N.J. 224, 243 (2007);  State v. Mosner, 407 N.J.Super. 40, 59 (App.Div.2009).

We are mindful that “[w]arrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions.”   State v. Pineiro, 181 N.J. 13, 19 (2004).   If a search or seizure is conducted without a warrant, the State must demonstrate that the search or seizure falls within an exception to the warrant requirement.  Ibid. The State must prove the absence of a constitutional violation by a preponderance of the evidence.  State v. Wilson, 178 N.J. 7, 13 (2003).   In this case, the State satisfied that burden.

Miele and Conrad were informed by a concerned citizen about drug activity in Building 16.   Defendant argues the officers did not adequately evaluate the information and that they, at a minimum, should have recorded the name of the tipster and evaluated her veracity consistent with an anonymous tip.   Miele testified, however, that it was his understanding that the drug activity reported by the citizen was then in progress on the third floor landing, where the actors could not have had a reasonable expectation of privacy.   Miele and Conrad proceeded to the location the tipster had described, and they observed an individual at the window of the third floor landing, as they had anticipated.   They entered the building through an unlocked door, and they remained in the common areas of the stairways and the corridors until they observed defendant with two bags of suspected CDS in his hands.

Ordinarily, “[i]n determining the reliability of a tip, a court must consider an informant's veracity, reliability, and basis of knowledge.”  State v. Stovall, 170 N.J. 346, 362 (2002) (citing Alabama v. White, 496 U.S. 325, 328-29, 110 S.Ct. 2412, 2415, 110 L. Ed.2d 301, 308 (1990) (internal quotations omitted)).   However, when the informer is an ordinary citizen, New Jersey courts assume the person has sufficient veracity and do not require further showings of reliability.  Stovall, supra, 170 N.J. at 362;  State v. Davis, 104 N.J. 490, 506 (1986).

[A]n individual of this kind may be regarded as trustworthy and information imparted by him to a policeman concerning a criminal event would not especially entail further exploration or verification of his personal credibility or reliability before appropriate police action is taken.

[Davis, supra, 104 N.J. at 506 (quoting State v. Lakomy, 126 N.J.Super. 430, 435 (App.Div.1974));  accord State v. Kurland, 130 N.J.Super. 110, 114-15 (App.Div.1974).]

In this case, the informer approached the officers in their unmarked police car and told them of activity then in progress.   No further inquiry into the citizen's veracity was necessary.   When the officers went to investigate the complaint, they heard what they interpreted to be a narcotics transaction involving “two bags.”   Thereafter, they observed defendant holding two bags of heroin.   Not only did the officers possess reasonable suspicion to seize defendant;  at that juncture, they had probable cause to arrest him, as Judge Anzaldi ruled.   Probable cause “ ‘is a well-grounded suspicion that a crime has been or is being committed.’ ”  State v. Nishina, 175 N.J. 502, 515 (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)).

Defendant argues last that he was denied effective assistance of counsel.   We acknowledge that “[o]ur courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.”  State v. Preciose, 129 N.J. 451, 460 (1992).   However, here, defendant contends solely that his counsel's cross-examination of Miele at the motion to suppress hearing was inadequate.   To the extent this contention involves matters that are on the record, the issue is appropriate for review.   Yet, there is no basis to disturb the trial court's determination.

A prima facie claim of ineffective assistance of counsel requires defendant to show (1) counsel's performance was deficient;  and (2) but for counsel's deficient performance, the outcome would have been different.  Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L. Ed.2d 674, 693 (1984);  State v. Fritz, 105 N.J. 42, 52, (1987).   There is “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.”  State v. Echols, 199 N.J. 344, 358 (2009) (quoting Strickland, supra, 466 U.S. at 689 104 S.Ct. at 2065, 80 L. Ed.2d at 694).

[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel.   He must allege facts sufficient to demonstrate counsel's alleged substandard performance.  [H]e must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.

[State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).]

Defendant does not allege any facts;  he merely states counsel was ineffective.   Based upon our independent review of the hearing transcript, we do not find counsel's performance to have been deficient;  and we are satisfied the factual findings made by Judge Anzaldi at the conclusion of the suppression hearing are amply supported by sufficient credible evidence in the record.

Affirmed.

PER CURIAM