STATE OF NEW JERSEY VS. TASHON RIVERA (16-06-0500, PASSAIC COUNY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1249-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TASHON RIVERA, a/k/a
TYJUAN RIVERA and
DAQUAN TABOR,

Defendant-Appellant.

Argued February 11, 2020 – Decided April 9, 2020

Before Judges Hoffman, Currier and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 16-06-0500.

Susan Lee Romeo, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Susan Lee Romeo, of
counsel and on the brief).

Ali Y. Ozbek, Assistant Prosecutor, argued the cause
for respondent (Camelia M. Valdes, Passaic County
Prosecutor, attorney; Ali Y. Ozbek, of counsel and on
the brief).
PER CURIAM

Defendant Tashon Rivera appeals from the denial of his suppression

motion and the imposed sentence. We affirm.

We derive the facts from the evidence elicited during the suppression

hearing. On December 31, 2015, at approximately 7:45 p.m., Paterson's

"Violent Crime Suppression Unit" responded to a three-block area of North

Main Street. Paterson Detectives Frank Brito and Christopher Ravallese were

inside an unmarked car, dressed in plain clothes but wearing visible badges.

Brito and Ravallese stopped in front of a particular two-family house on

North Main Street. Brito testified that he had been inside the house on at least

five prior occasions and he had observed it was littered with garbage, needles,

and paper used to wrap controlled dangerous substances (CDS). According to

Brito, there were no beds, no working plumbing, and no electricity. The

windows were boarded up and the front door did not have a knob on it. Brito

referred to the house as an "unoccupied abandoned structure."

Ravallese testified that he was also familiar with the house. He stated it

was not cared for and had "a lot of garbage and debris in front of it." Ravallese

said the front door of the house was "usually locked and secured." He called the

building a "secured abandoned structure."

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 As the detectives' car arrived at the house, Brito noticed the front door

was open. He stated that defendant was standing in the doorway of the house

"holding a charcoal bag" – what might be used to hold charcoal for a grill.

Ravallese stopped the car. Both Brito and Ravallese recognized defendant,

although they had not spoken to him before.

According to Brito, since that area is known for drug activity, "when [he]

saw [defendant] in the doorway holding a bag, [he] believed that there was

something going on, some type of criminal activity." Ravallese testified that,

under the totality of the circumstances, he had a reasonable suspicion there was

contraband in the bag.

When the detectives stopped their car and got out of it, defendant dropped

the bag and began to walk down the outside steps. Ravallese testified he

believed defendant dropped the bag in order "to conceal the [bag's] contents"

after recognizing they were the police. Brito stopped defendant and asked him

to take his hands out of his pockets. As defendant did so, a single glassine bag

of heroin fell out of his pocket. Brito secured the glassine bag and arrested

defendant. While searching defendant, Brito discovered four additional glassine

bags of heroin in defendant's pocket.

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 Ravallese stated he went "to the doorway of the abandoned house where

[he] saw . . . defendant drop the bag." He said the bag was to "the right . . . of

the doorway, immediately inside the front door." When he looked in the bag,

Ravallese discovered "several glassines of suspected heroin, as well as suspected

crack-cocaine." According to Ravallese, the bag contained "[sixty-two]

glassines of suspected heroin . . . [a]nd . . . between [thirteen] and [fifteen]

baggies of crack cocaine." The bag also contained a revolver.

Defendant was charged in an indictment with: third-degree possession of

heroin, in violation of N.J.S.A. 2C:35-10(a)(1) (count one); third-degree

possession of heroin with intent to distribute, in violation of N.J.S.A. 2C:35 -

5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of

heroin with intent to distribute within 1000 feet of school property, in violation

of N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count three); third-degree

possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1) (count four);

third-degree possession of cocaine with intent to distribute, in violation of

N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count five); third-degree

possession of cocaine with intent to distribute within 1000 feet of school

property, in violation of N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count six);

second-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-

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5(b)(1) (count seven); second-degree possession of a weapon while committing

a CDS offense, in violation of N.J.S.A. 2C:39-4.1(a) (count eight); fourth-

degree possession of a defaced firearm, in violation of N.J.S.A. 2C:39 -3(d)

(count nine); and second-degree certain persons not to have a weapon, in

violation of N.J.S.A. 2C:39-7(b)(1) (count ten).

Defendant moved to suppress the evidence seized from his person and the

bag. He argued the police had no reason to search him and the house without a

warrant. The State countered that the detectives conducted a valid investigatory

stop after witnessing defendant drop the bag, and the search of the bag was

justified because it was abandoned property or as a search incident to a lawful

arrest. The State contended defendant's arrest was justified after the plain view

observation of the glassine bag falling out of his pocket. The additional bags

found in defendant's pockets were obtained lawfully as a search incident to

arrest.

In an oral decision on December 13, 2016, the court denied the motion to

suppress, finding, "under all the circumstances, . . . the police action was

completely appropriate . . . ." The court also found both detectives credible in

their testimony of the evening's events. The court noted the house was

abandoned and in a high-crime area. When defendant recognized the detectives

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as law enforcement, the court stated he tossed the bag. Based on these findings,

the detectives had a reasonable articulable suspicion of drug activity.

The court described the house as an abandoned structure – full of garbage,

boarded up, and littered with drug paraphernalia. Therefore, the court noted, the

detectives "had every right to reasonably conclude" that defendant, after

realizing they were law enforcement, tried to conceal the bag by dropping it and

then casually walking down the steps. The reasonable suspicion of drug activity

justified the detectives' subsequent actions.

Because of the detectives' observations, the court found it was reasonable

for Brito to ask defendant to take his hands out of his pockets. After the glassine

bag fell out of defendant's pocket, the detectives had probable cause to search

him. The court stated Ravallese had probable cause – and certainly a reasonable

suspicion – to believe criminal activity was going on and to search the bag.

Defendant was found guilty on all counts by a jury. During the sentencing

hearing, the State argued in support of its application for a discretionary

extended term. Although the State's sentencing memorandum requested the

court impose the extended term sentence on count eight, possession of a weapon

while committing a CDS offense, N.J.S.A. 2C:39-4.1(a), when the prosecutor

requested the extended term in court, he referenced count ten, describing it as

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"the possession of a weapon during a [CDS] offense." When the court informed

the prosecutor that count ten was the certain persons charge, the prosecutor

responded "then under [c]ount [t]en . . . ."

The court found defendant was eligible for an extended term because of

his prior convictions. The following sentence was imposed: (1) after the merger

of counts one and two into count three, defendant was sentenced on count three

to a five-year term of imprisonment, with a three-year period of parole

ineligibility; (2) counts four and five merged into count six, on which defendant

was sentenced to a five-year term, with a three-year period of parole

ineligibility, to run concurrently to the sentence imposed on count three; (3) on

count seven, defendant was sentenced to an eight-year term, with a four-year

period of parole ineligibility, to run concurrently to the sentences imposed under

counts three and six; (4) on count eight, defendant was sentenced to an eight-

year term of incarceration, with a four-year period of parole ineligibility, to run

consecutively to the sentences imposed under counts three and six but

concurrently with the sentence imposed under count seven; (5) on count nine,

defendant was sentenced to a term of eighteen months.

As to count ten, the court granted the State's application for an extended

term and imposed a fifteen-year term, with a seven-and-one-half-year period of

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parole ineligibility, pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). This

sentence ran concurrently to the sentences imposed under counts three, six,

seven, and nine.

On appeal, defendant raises the following issues:

POINT I. DEFENDANT'S CONVICTIONS MUST BE
REVERSED BECAUSE THE TRIAL COURT ERRED
WHEN IT DENIED DEFENDANT'S SUPPRESSION
MOTION: 1) THE COURT MISAPPLIED THE LAW
PERTAINING TO ABANDONED PROPERTY IN
MULTIPLE RESPECTS AND ITS FACTUAL
FINDINGS WERE CONTRARY TO THE
EVIDENCE; 2) THE SEARCH INCIDENT TO
ARREST EXCEPTION DID NOT APPLY BECAUSE
THE CHARCOAL BAG WAS FAR BEYOND
DEFENDANT'S GRAB AREA; AND 3) NEITHER
PROTECTIVE SWEEP NOR ANY OTHER
EXCEPTION BASED ON REASONABLE
SUSPICION JUSTIFIED THE WARRANTLESS
SEARCH.

A. THE ABANDONED PROPERTY EXCEPTION
DID NOT APPLY AT ALL.

1. THE STATE NEVER ALLEGED THAT
DEFENDANT LACKED STANDING.

2. THE COURT IMPROPERLY RELIED UPON THE
MORE RESTRICTIVE FEDERAL TEST FOR
STANDING.

B. THE COURT APPLIED THE WRONG LEGAL
TEST IN DETERMINING THAT THE HOUSE WAS
ABANDONED REAL PROPERTY AND ITS
FINDING IS CONTRADICTED BY THE EVIDENCE.

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C. THE COURT APPLIED THE WRONG LEGAL
TEST IN DETERMINING THAT THE CHARCOAL
BAG WAS ABANDONED PERSONAL PROPERTY
AND ITS FINDING IS CONTRADICTED BY THE
EVIDENCE.

D. THE SEARCH INCIDENT TO ARREST
EXCEPTION DID NOT APPLY BECAUSE THE BAG
WAS LOCATED FAR BEYOND DEFENDANT'S
GRAB AREA.

E. NEITHER THE PROTECTIVE SWEEP
EXCEPTION NOR ANY OTHER EXCEPTION
BASED SOLELY ON "REASONABLE
ARTICULABLE SUSPICION" JUSTIFIED THE
SEARCH OF THE HOUSE OR THE BAG.

POINT II. DEFENDANT'S SENTENCE MUST BE
REVERSED BECAUSE THE COURT'S IMPOSITION
OF THE EXTENDED TERM WITHOUT PROPER
NOTICE VIOLATED THE COURT RULES, CASE
LAW, AND DEFENDANT'S DUE PROCESS
RIGHTS AND BECAUSE THE SENTENCE
REPRESENTED AN ABUSE OF DISCRETION.

A. THE COURT VIOLATED STATE V. THOMAS,
195 N.J. 431 (2008), THE COURT RULES AND
DEFENDANT'S DUE PROCESS RIGHTS WHEN IT
IMPOSED AN EXTENDED TERM ON A CHARGE
THAT WAS DIFFERENT THAN THE ONE
REQUESTED BY THE STATE AND THAT HAD
HARSHER EXTENDED TERM REQUIREMENTS.

B. THE COURT ABUSED ITS DISCRETION WHEN
IT SENTENCED DEFENDANT TO A FIFTEEN-
YEAR EXTENDED TERM WITH THE MAXIMUM
PERIOD OF PAROLE INELIGIBILITY FOR HIS
FIRST CONVICTION FOR WEAPONS OFFENSES,

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 WHICH INVOLVED THE POSSESSION OF A
SINGLE HANDGUN IN NON-VIOLENT
CIRCUMSTANCES.

We begin by addressing defendant's arguments regarding the suppression

motion. In reviewing a motion to suppress, we defer to the factual and

credibility findings of the trial court, "so long as those findings are supported by

sufficient credible evidence in the record." State v. Coles, 218 N.J. 322, 342

(2014) (quoting State v. Hinton, 216 N.J. 211, 228 (2013)). Deference is

afforded "because the 'findings of the trial [court] . . . are substantially

influenced by [its] opportunity to hear and see the witnesses and to have the

"feel" of the case, which a reviewing court cannot enjoy.'" State v. Reece, 222

N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).

"A trial court's interpretation of the law, however, and the consequences

that flow from established facts are not entitled to special deference." State v.

Hubbard, 222 N.J. 249, 263 (2015) (citing State v. Gandhi, 201 N.J. 161, 176

(2010)). "A trial court's legal conclusions are reviewed de novo." Ibid. (citing

Gandhi, 201 N.J. at 176).

The Fourth Amendment of the United States Constitution and Article I,

Paragraph 7 of the New Jersey Constitution guarantee "[t]he right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable

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searches and seizures . . . ." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7.

"Under those provisions, a warrantless search is per se unreasonable unless it

falls within one of the few well-delineated exceptions to the warrant

requirement." State v. Citarella, 154 N.J. 272, 278 (1998) (citing State v.

Demeter, 124 N.J. 374, 379-80 (1991)). "[T]he burden is on the State, as the

party seeking to validate a warrantless search, to [establish] one of those

recognized exceptions." State v. Alston, 88 N.J. 211, 230 (1981) (citations

omitted).

Here, the State argued, and the court agreed, that the house was an

abandoned property, and therefore, the police did not need a warrant prior to

their search. Defendant challenges that finding.

Under both the United States and New Jersey Constitutions, abandoned

property is an exception to the warrant requirement. Abel v. United States, 362

U.S. 217, 241 (1960); State v. Brown, 216 N.J. 508, 527-28 (2014). Our

Supreme Court held in Brown that "to justify a warrantless search of a home,

evidence of abandonment must be clear and unequivocal and judged objectively

in light of . . . 'the totality of the facts and circumstances.'" 216 N.J. at 531-32

(quoting United States v. Harrison, 689 F.3d 301, 307, 309 (3d Cir. 2012)). "[I]f

it is 'ambiguous to a reasonable officer whether a dilapidated house is abandoned

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. . . the officer [will] need to make further inquiries into the property 's status.'"

Id. at 532 (alterations in original) (quoting Harrison, 689 F.3d at 311 n.5). "In

short, '[t]here simply is no "trashy house exception" to the warrant requirement,'

and therefore '[i]t is unreasonable to assume that a poorly maintained home is

an abandoned home.'" Ibid. (alterations in original) (quoting Harrison, 689 F.3d

at 311).

The Court "identif[ied] some factors to be considered in determining

whether, in light of the totality of the circumstances, a police officer has an

objectively reasonable basis to believe a building is abandoned, thus justifying

a warrantless entry and search." Ibid. It stated that "[n]o one factor is

necessarily dispositive, and the weight to be given to any factor will depend on

the particular circumstances confronting the officer." Ibid.

The Court advised that, "[i]n deciding whether a building is abandoned,

or a person is a trespasser, one reasonable step an officer might take is to

examine readily available records on ownership of the property." Id. at 533

(describing physical and online copies of deeds, tax, and utility records as

potential sources). "Other factors to consider . . . [are] the property's condition

and whether the putative owner . . . has taken measures to secure the building

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from intruders." Id. at 533-34. Finally, "[a]nother factor is an officer's personal

knowledge of a particular building and the surrounding area." Id. at 534.

It is undisputed that the detectives did not stop their official duties on the

evening of these events and check the property records to ascertain the

ownership of the home. However, as the Court stated in Brown, a check of such

records is not "the exclusive means of determining" abandonment of property

and is unnecessary if it will "compromise an investigation." Id. at 533 n.4. Both

officers were familiar with the property – both described it as abandoned. Brito

said the house inside was littered with garbage, needles and paper used in drug

activity. There were no beds, working plumbing, or electricity. The windows

were boarded up. Ravallese said the house was neglected, with garbage and

debris in front of it. The house was in a high-crime area.

We are satisfied that the trial court's determination that the house was "an

abandoned structure" is supported by the credible evidence. Although the court

made a fleeting reference to defendant's lack of any expectation of privacy in

the property, that standard was not dispositive to its decision. The court

extensively outlined each detective's description of the property prior to finding

"from every appearance [this] was an abandoned structure." We reject

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defendant's argument that the court applied the wrong standard in making its

determination.

Furthermore, the court also found the bag was abandoned. As the court

stated, upon recognizing the officers, defendant tossed the bag and walked down

the stairs. The court stated the police had "every right to reasonably conclude

that upon seeing the police [defendant] was trying to secrete the bag or get rid

of the bag and then walk down the stairs seeming to be walking out normally

. . . ."

Property is treated as abandoned when discarded. State v. Gibson, 318

N.J. Super. 1, 11 (App. Div. 1999) (citation omitted). Because defendant

"knowingly and voluntarily relinquishe[d] . . . possessory or ownership interest"

in the bag, State v. Johnson, 193 N.J. 528, 549 (2008), it was abandoned, and

defendant cannot challenge its search or the seizure of the evidence in it. 1

We turn then to defendant's challenge of his sentence. He contends he

was not given proper notice of the request for an extended term. Under N.J.S.A.

2C:44-3, a court may sentence a defendant to an extended term of imprisonment

1
Because we discern no error in the court's conclusion that the warrantless
search was justified under the totality of the circumstances, we need not address
defendant's alternate arguments.

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if certain requirements detailed in the statute are met. The State must notify

defendant and the court it intends to request the sentence. "Where multiple

offenses are charged, that notice obviously should include an identification of

the offense with respect to which the prosecutor is seeking an extended term in

order to give the defendant a fair opportunity to meet that claim." State v.

Thomas, 195 N.J. 431, 436 (2008).

Defendant contends that the State's sentencing brief asked the court to

sentence him to an extended term of twenty years with a ten-year period of

parole ineligibility for count eight, second-degree possession of a weapon while

committing a CDS offense, in violation of N.J.S.A. 2C:39-4.1(a). However,

during the sentencing hearing, the State reiterated its request but referred to

count eight as count ten. After the court informed the State that count ten was

a different charge, the prosecutor and the court proceeded under the mistaken

assumption that the State was requesting an extended term for count ten.

Defense counsel did not object or inform the court of the error. Defendant says

that the substitution of count ten for count eight deprived him of the required

notice.

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 Although the prosecutor misspoke in his oral application to the court, the

error did not prejudice defendant. To the contrary, the error resulted in a more

favorable sentence than was originally sought.

Defendant faced thirty years under the original request – a twenty-year

extended term sentence, with a ten-year period of parole ineligibility, under

count eight, to run consecutively to a ten-year term for count ten. In contrast,

the court sentenced defendant to a fifteen-year extended term, with a seven-and-

one-half-year period of parole ineligibility – half of the originally requested

sentence. The error was harmless. We discern no abuse of discretion in the

imposed sentence.

Affirmed.

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