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N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and
N.J.S.A. 2C:35-5b(3) (count two); third-degree possession of CDS with intent to distribute within 1000 feet of school
property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count three); third-degree distribution of CDS, N.J.S.A. 2C:35-5a(1)
and N.J.S.A. 2C:35-5b(3) (count four); and third-degree distribution of CDS within 100 feet of school property,
N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count five). Because of his prior criminal record, defendant was eligible for an
extended term sentence. "> 44 EDT 2009"> Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is .)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0860-07T40860-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRIAN COLEMAN,
Defendant-Appellant.
Submitted March 9, 2009 - Decided
Before Judges R. B. Coleman and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County,
Indictment No. 05-07-0976.
Yvonne Smith Segars, Public Defender, attorney for appellant (Randall J. Peach,
Designated Counsel, of counsel and on the brief).
James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W.
Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
A grand jury indicted defendant Brian Coleman for third-degree possession of a controlled dangerous substance
(CDS) (heroin), N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count three); third-degree distribution of CDS, N.J.S.A. 2C:35-5a
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and N.J.S.A. 2C:35-7 (count five). Because of his prior criminal record, defendant was eligible for an extended term
sentence.
Defendant entered an unconditional guilty plea to count one in exchange for a five-year probationary term. The
plea agreement also provided for the imposition of a five-year term of imprisonment with a two-and-one-half-year
period of parole ineligibility in the event defendant was arrested on a new offense prior to sentencing or violated
probation. Defendant was subsequently found guilty of violating probation and sentenced accordingly. On appeal,
he raises the following contentions.
I. THE TRIAL COURT ERRED IN FINDING DEFENDANT GUILTY OF VIOLATION OF
PROBATION, WHERE THERE WAS INSUFFICIENT EVIDENCE THAT DEFENDANT HAD
INEXCUSABLY VIOLATED A SUBSTANTIAL REQUIREMENT OF HIS PROBATION.
A. There Was Insufficient Evidence to Find Defendant Guilty of Violating Probation for
"Failing to Report."
B. There Was Insufficient Evidence to Find Defendant Guilty of Violating Probation for
Failing to Provide Proof of Employment.
C. The Trial Court Failed to Conduct a Meaningful Analysis of Whether There Was
Sufficient Evidence of a Substantial VOP, and Instead Improperly Took Into Account the
Court's Prior Experiences With Defendant, thus Depriving Defendant of a "Neutral and
Detached" Decision on the VOP.
II. THE SENTENCE IMPOSED ON THE VOP CONVICTION WAS EXCESSIVE AND THE RESULT
OF AN IMPROPER SENTENCING ANALYSIS.
III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS, WHERE
THE STATE'S OWN EVIDENCE INDICATED THAT POLICE NEVER HAD PROBABLE CAUSE
TO ARREST AND SEARCH DEFENDANT.
A. The Evidence That Defendant Was Wearing Different Clothing Than the Suspect.
B. The State's Failure to Locate Contraband on Defendant When He Was Initially
Searched.
IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT WHERE THE PROSECUTOR MISLED THE GRAND JURY AND FAILED TO
PROVIDE IT WITH EXCULPATORY EVIDENCE.
V. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO COMPEL THE
PRODUCTION OF DETECTIVE SIKES' PERSONNEL FILE, AT LEAST FOR AN IN CAMERA
INSPECTION BY THE COURT.
We reject these contentions and affirm.
I.
We first address defendant's contentions about his motions. "Generally a guilty plea constitutes a waiver of all issues
which were or could have been addressed by the trial judge before the guilty plea." State v. Robinson, 224 N.J.
Super. 495, 498 (App. Div. 1988). There are only three exceptions to this general waiver rule: (1) grounds preserved
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under a conditional or retraxit plea under Rule 3:9-3(f); (2) review of denials of admission to pretrial intervention
programs under Rule 3:28(g); and (3) review of denials of motions to suppress physical evidence due to an unlawful
search or seizure under Rule 3:5-7(d). Id. at 498-99.
We conclude that defendant's unconditional guilty plea bars our review of defendant's motion to dismiss the
indictment. See State v. Knight, 183 N.J. 449, 470 (2005) (a defendant who pleads guilty is prohibited from raising on
appeal the contention that the State violated his constitutional rights prior to the plea) certif. denied, 189 N.J. 426
(2001). We also conclude that the plea bars our review of defendant's motion to compel production of a police
officer's personnel file, but not his motion to suppress evidence.
We summarize the facts from the record. According to Sergeant Troy Bailey, an experienced detective with the City
of Paterson Police Department Narcotics Unit, at approximately 1:00 p.m. on April 5, 2005, he was traveling in plain
clothes in an unmarked police vehicle in the area of Godwin Avenue and Carol Street, a well-known high volume
drug and gang activity area. Upon approaching the intersection, he saw a tall, thin white male exit the front
passenger side of a parked Nissan Sentra and walk to the corner of Godwin Avenue. The man appeared as though
he had paper money in his right hand, and he approached a black male, later identified as defendant, who was
standing on the corner. Defendant, who was approximately 5'7" or 5'8" with a heavier build, was wearing a black
baseball cap, black vest, red T-shirt and blue jeans. After observing a "quick, brief conversation take place[,]" the
officer saw defendant "counting out and handing over to the individual white male, . . . what appeared to be light
colored objects . . . [which he] suspected . . . [were] glassines of heroin." Based on his training and experience, the
officer concluded that a hand-to-hand drug transaction had occurred.
Bailey then saw the white male return to the Nissan, which then left the scene. He called for backup, and then
followed the Nissan, until a backup unit stopped it. The backup unit recovered six glassine envelopes from the
Nissan. The officer then returned to the scene of the exchange. By that time defendant had relocated a few blocks
north to a parking lot on Carol Street. Recognizing defendant from his previous observations, the officer radioed for
a backup unit and gave a defendant's description and his location. The backup unit apprehended defendant and
arrested him. A subsequent search of defendant at police headquarters revealed two white glassine envelopes of
heroin, folded with tape and stamped in red ink "for the vein" inside the lining of defendant's baseball cap. The
envelopes were identical to those Bailey found in the Nissan. The search also revealed $340.
A photograph of defendant taken at police headquarters immediately after his arrest showed him wearing a red t-
shirt. Bailey testified that he was present at the taking of this photograph. A photograph of defendant taken the
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next day at 5:20 p.m. shows him wearing a white t-shirt.
Defendant filed a motion to suppress the drugs found in his baseball cap. He argued that the police lacked
probable cause for his arrest because he was wearing a white t-shirt at the time of his arrest, which did not match
the suspect's clothing. The trial judge credited Bailey's testimony about defendant's clothing, found probable cause
for the arrest, and denied the motion.
Our review of a trial judge's findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999) (citing
State v. Johnson, 42 N.J. 146, 161-62 (1964)). We give great deference to the trial judge's factual findings and will
not "engage in an independent assessment of the evidence as if [we] were the court of first instance." Id. at 471. We
also give deference to the trial judge's credibility determinations. Id. at 474; Johnson, supra, 42 N.J. at 161. In
reviewing a motion to suppress, we "must 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) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div.
1990). We will reverse only if we are convinced that the trial judge's factual findings "are so clearly mistaken 'that
the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra,
42 N.J. at 162.) "In those circumstances solely should [we] 'appraise the record as if [we] were deciding the matter at
inception and make [our] own findings and conclusions.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).
Based upon our careful review of the record, we are satisfied that the record amply supports the judge's factual and
credibility findings. We discern no reason to disturb his denial of defendant's motion to suppress.
II.
Defendant contends that there was insufficient evidence to prove a violation of probation or, alternatively, that any
such violation was technical. We disagree.
At the plea hearing on June 21, 2006, defendant stated that he understood the judge's warning that he would
receive a five-year term of imprisonment with a two-and-one-half-year period of parole ineligibility if he was
arrested on any new offense, if he violated probation for any reason, or if he failed to keep probation informed of his
whereabouts and activities and to comply with the rules, terms and conditions of probation. Defendant's probation
officer testified that on March 9, 2007, she instructed him to report to the Probation Department on March 15, 2007,
but he failed to appear or call to report his inability to do so. She then sent him a notice instructing him to report on
April 5, 2007. He again failed to appear or call. Defendant also failed to provide evidence of gainful employment,
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which defendant was advised was a probation condition.
Defendant testified that he reported to the Probation Department on March 15, 2007, but his probation officer was
not in, so he left and went to work. He claimed that he reported the next day, but could not see his probation officer,
so he "stopped going there and . . . was hoping that maybe someone would come out to the house or call or leave a
message[.]" However, he left no address or any contact information, and he made no attempt thereafter to contact
his probation officer.
Finding defendant guilty of violating probation, the judge concluded as follows:
Mr. Coleman is no neophyte to the criminal justice system. He has six indictable
convictions. He was on probation before. He has been to State Prison. He is fully aware
of all of the conditions of probation. He made absolutely no attempt to contact Miss
Maldonado. He failed to report on March 15th, 2006 and on his own admission, he has
failed to report to Probation at any time since then.
The Court specifically informed Mr. Coleman and that is a matter of record. If you get
the transcript of March 5th of 2007, you will see it clearly in that transcript, he was
advised on the record that he has to get full-time employment. I told him and I don't
want any working under the table, it has to be a legal job like everybody else. He failed
to comply with that condition.
The Judgment of Conviction signed by the Court also reflects that is a condition of
probation, he's to seek and maintain full-time employment. Mr. Coleman has testified
that he was not aware of that requirement, again I do not find that testimony to be
credible, because Mr. Coleman was told and he acknowledged -- on the record.
Based on the totality of the evidence I heard here today, I am satisfied that the State has
met its burden of proof by more than a preponderance of the evidence. The standard is
a very low one, by preponderance of the evidence.
I find the State has proved its case on both charges and that Mr. Coleman is guilty of
failing to report to Probation at any time since he was placed on probation, specifically
since March 15th of 2007 and that he has failed to provide proof of employment. The
Court finds him guilty of both counts of the violation of probation.
In sentencing a defendant to probation, the court may "'attach such reasonable conditions . . . as it deems necessary
to insure that he will lead a law-abiding life or is likely to assist him to do so.'" State v. Peters, 129 N.J. 210, 217
(1992) (quoting 150 N.J. Super. 497, 499 (App. Div. 1977). The "inexcusable failure" to comply with a substantial
condition of probation may lead to its revocation. 207 N.J. Super. 126, 134 (App. Div.), certif. denied, 103 N.J. 499
(1986). A violation will be found if "defendant has been convicted of another offense or the court is satisfied by a
preponderance of the evidence that defendant has inexcusably failed to comply with a substantial requirement
imposed as a condition of probation." Id. at 137. At the hearing, the court must determine whether the violation is
serious enough to justify revocation of probation. State v. Baylass, 114 N.J. 169, 175 (1989). The defendant bears the
burden of showing an excuse for the failure to comply with the condition. Reyes, supra, 207 N.J. Super. at 139-40.
We will not reverse the court's finding of a violation if it is supported by substantial credible evidence in the record.
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See Johnson, supra, 42 N.J. at 162. We will not engage in an independent assessment of the evidence. Locurto,
supra, 157 N.J. at 471.
We are satisfied from our review of the record that defendant's probation violations were not mere technicalities. In
addition to inexcusably failing to report his employment, defendant inexcusably failed to comply with the most
substantial and critical probation condition - reporting to his probation officer. These are serious violation
warranting revocation of probation.
III.
Defendant's remaining argument that his sentence is excessive lacks sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2). However, we add the following comments.
Defendant knew that if he violated probation, he faced a five-year term of imprisonment with a two-and-one-half-
year period of parole ineligibility. Further, the record amply supports the judge's finding of aggravating factors
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