STATE OF NEW JERSEY v. NAADIR I. MUHAMMAD, a/k/a CLAYTON JONES

Case Number: A-4425-13T3

Judge: Joseph Yannotti

Court: SUPERIOR COURT OF NEW JERSEY

Plaintiff's Attorney:

Christopher S. Porrino, Attorney General
Jane C. Schuster, Deputy Attorney General

Defendant's Attorney:

Joseph E. Krakora, Public Defender
Kevin G. Byrnes, Designated Counsel

Description: Defendant was charged by an Atlantic County grand jury with
first-degree possession of ten grams or more of a controlled
dangerous substance (CDS) with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(6) (count one); second
degree conspiracy to possess ten grams or more of a CDS with intent
to distribute, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a), and N.J.S.A.
2C:35-5(b)(6) (count two); second-degree possession of a CDS with
intent to distribute within 500 feet of a public housing facility,
park or building, N.J.S.A. 2C:35-7.1 (count three); third-degree
possession of a CDS with intent to distribute in a school zone,
N.J.S.A. 2C:35-7 (count four); third-degree unlawful possession
of a CDS, N.J.S.A. 2C:35-10(a)(1) (count five); and fourth-degree
tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count six).
Co-defendant Michael J. Showell was also charged in counts one to
five.

Thereafter, defendant filed a motion to suppress, and the
trial court conducted an evidentiary hearing on the motion.
At the hearing, Lieutenant James A. Sarkos of the Atlantic
City Police Department (ACPD) testified that an informant had
reported CDS activity around a motel at a specific location on
Route 30 in the City. The informant told Sarkos that a man staying
in room twenty-three of the motel had been selling large quantities
of PCP in the area for a month. Detective Howard Mason also had
received confidential information attesting to similar activity.
On January 25, 2012, Sarkos and members of the New Jersey
State Police conducted a joint operation looking for criminal
activity in the area around the motel, which was known for high
drug/high-crime activity. Sarkos and the officers went to the
motel and asked the front-desk clerk who was staying in room
twenty-three. The clerk provided the officers with a copy of the
room registration card, which listed the name "Naadir Muhammad,"
as well as defendant's identification information.
Sarkos testified that when he saw defendant's name, he
immediately recalled that another division of the ACPD had received
information that someone by the name of "Naadir Muhammad," who is
also known as Clayton Jones, was distributing large quantities of
PCP in the City. Sarkos then used his "smart phone" to obtain a
photograph of defendant so he would recognize him on sight. Sarkos
spoke with an officer at the ACPD and asked the officer to conduct
a warrant check on defendant. The check revealed that defendant
had an outstanding warrant out of Cumberland County for unpaid
child support.
Sarkos and two officers then conducted surveillance of room
twenty-three at the motel from their vehicle. They observed two
persons leave the room and walk across the parking lot. The two
individuals walked directly towards the car. The officers were
concerned the individuals would see them.
The officers backed the car out of the parking spot and drove
out of the lot. Sarkos testified that in his rearview mirror, he
observed the two individuals stop abruptly and return to room
twenty-three. Sarkos was concerned that the individuals were
conducting counter-surveillance, and would alert others involved
in criminal activity of possible police presence.
The officers then drove around the block and parked in a
different location to continue their surveillance of the room.
Sarkos saw defendant exit the room with a trash can, dispose of
its contents into a dumpster, look around, observe the officers'
car, and reenter the room. Sarkos recognized defendant from the
photo on his phone.
The officers did not arrest defendant at this time because
they did not believe they could reach him before he reentered the
room. They called for backup. Seven other officers responded to
the scene. Sarkos parked the car near the room and noticed that
its door was wide open. He exited the car, holding his radio. He
was wearing a bulletproof vest with the words "POLICE" written
upon it in large letters. He displayed his badge.
Sarkos and the other officers approached the room. Sarkos
observed defendant standing in the doorway. According to Sarkos,
defendant had a "frantic expression on his face." Defendant slammed
the door shut. The officers ran up to the door and Sarkos yelled,
"police, open the door." Sarkos banged on the door and heard a
commotion from inside the room and the sound of running water.
After about thirty seconds, defendant opened the door. Sarkos
entered the room. Sarkos noticed that defendant was breathing
heavily, he was wearing a jacket that was wet from his elbow to
his wrist, and his shorts had water-splash marks on them. Co
defendant Showell also was in the room.
Sarkos testified that, once inside the room, he was
overwhelmed by a chemical odor. Based on his training and
experience, Sarkos recognized the odor to be PCP. The odor gave
him a headache and made him feel nauseous. Sarkos placed defendant
under arrest. He did a brief search of the room to ensure that no
one else was present, who could harm the officers. He said the
strongest odor emanated from the bathroom, where the door had been


6 A-4425-13T3


left wide open. The officers found that the water in the bathroom
sink had been left running, and there were bottle caps and red
funnels in the sink.
Sarkos testified that these items were consistent with
paraphernalia used to transfer liquid PCP from large to small
bottles. The officers found water all over the bathroom floor.
They also found four bottles in the trash, three of which contained
liquid. Sarkos believed the three bottles still contained PCP. He
took caps from the sink and sealed the bottles found in the trash.
According to Sarkos, defendant stated that "there's just
water in there," but Sarkos told defendant that he thought the
liquid was PCP or "wak," which is what PCP is commonly called in
the City. Defendant replied, "I ain't saying what used to be in
there. I'm just saying there's water in there."
Sarkos searched defendant. In his pocket, he found $381 in
small denominations, which Sarkos said was consistent with street
level distributions of PCP. Sarkos also seized a bottle that
smelled as if it might have contained PCP. The officers also
arrested Showell. Before leaving for the police station, Showell
asked to retrieve his "long-john underwear" from one of the drawers
in the dresser.
Sarkos noticed the drawer was filled with clothing and that
Showell had several forms of identification, which were scattered


7 A-4425-13T3


around the room. Sarkos believed that Showell had been staying in
the motel room with defendant. Defendant also asked to retrieve
his pants from a drawer before leaving, and Sarkos assisted him
in retrieving them. The officers did not conduct any further search
of the room.
Defendant testified that he had been chatting with members
of his family when eight or nine police officers pulled up in cars
and ran towards the room. He ran inside the room, slammed the door
closed, and disposed of all of the contraband he had. Defendant
testified that he let the officers into the room only after he was
satisfied that all of the contraband had been destroyed. Defendant
said the contraband he was referring to was PCP.
Defendant further testified that the police ran into the room
and immediately arrested him and Showell. He said the police
"raided" the room and seemed "stumped" and frustrated because they
did not find any contraband.
Defendant stated that after the officers had entered and
"turned the room upside down," they contacted the ACPD to determine
if defendant had any outstanding warrants. Defendant claims he
overheard the call while he was detained in the room. He said the
officer contacted the ACPD five minutes after he was placed under
arrest.


8 A-4425-13T3


After hearing arguments from the attorneys, the judge placed
an oral decision on the record. The judge found that "the balance
of credibility" weighed strongly in favor of Sarkos. The judge
stated that Sarkos's account of defendant's arrest made sense
under the circumstances, while defendant's version was not
credible.
The judge noted that defendant's testimony indicated that he
had "little regard for the laws of this State," since he had
readily admitted that he had possessed PCP and destroyed the
evidence before allowing the officers into the room. The judge
also stated that defendant's lawless behavior indicated that he
had "little incentive to meet his obligation to tell the truth
even under oath." The judge denied defendant's motion to suppress
the CDS and CDS-related paraphernalia.
On October 22, 2013, defendant pled guilty to count one of
the indictment, which charged him with possession with intent to
distribute ten grams or more of PCP. The judge sentenced defendant
on December 20, 2013, and later entered the judgment of conviction
signed on January 14, 2014.
Defendant's appeal followed. On appeal, defendant raises the
following arguments:





9 A-4425-13T3


POINT I

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.

POINT II

THE DEFENDANT'S SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

II.
We turn first to defendant's contention that the trial court
erred by denying his motion to suppress. He contends the officers
violated his right under the New Jersey Constitution to be free
from unreasonable searches and seizures by obtaining his personal
information from the motel's front-desk clerk.
We note that defendant did not raise this issue at the
suppression hearing. There, defendant only argued that the
officers unlawfully entered his motel room because, at the time
they did so, they allegedly did not know that he had an outstanding
warrant in Cumberland County.
The State contends that because defendant did not assert at
the hearing that the officers unlawfully obtained personal
information about him from the motel clerk, we should not consider
this argument on appeal.
Generally, 'the points of divergence in proceedings before a trial court define the


10 A-4425-13T3


metes and bounds of appellate review.' Parties must make known their positions at the suppression hearing so that the trial court can rule on the issues before it. For sound jurisprudential reasons, with few exceptions, 'our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available.'

[State v. Witt, 223 N.J. 409, 419 (2015) (internal citation omitted) (quoting State v. Robinson, 200 N.J. 1, 19-20 (2009)).]

In Witt, the Court refused to consider one of defendant's
constitutional arguments because the issue had not been raised at
the suppression hearing, thereby depriving the State of the
opportunity to elicit testimony that might have resolved the issue.
Ibid. Here, however, defendant is raising a legal issue based on
essentially undisputed facts. We therefore elect to address
defendant's argument.
Article I, Paragraph 7 of the New Jersey Constitution protects
citizens from unreasonable searches and seizures. To invoke these
protections, a defendant must show that he or she has a reasonable
expectation of privacy, which was violated by the government's
action. State v. Evers, 175 N.J. 355, 368-69 (2003) (citations
omitted). Ordinarily, a person "surrenders a reasonable
expectation of privacy to information revealed to a third-party."
Ibid.


11 A-4425-13T3


Indeed, we have held that hotel guests do not have a right
of privacy under the New Jersey Constitution to information in a
hotel registry. State v. Lopez, 395 N.J. Super. 98, 106 (App.
Div.), certif. denied, 192 N.J. 596 (2007). In Lopez, we stated
that:
[n]o violation of defendant's constitutional rights occurred in the police investigation that disclosed his identity, particularly in the inquiry to a hotel employee for the room number and name of the occupant who had placed a telephone call . . . As a matter of law, defendant had no reasonable expectation of privacy as to his identity when he registered as a guest of the hotel. See N.J.S.A. 29:4-1. The police had engaged in a perfectly valid investigation to discover defendant's identity and location.

[Id. at 106.]

The statute referenced in Lopez requires hotel registries to
contain the names and addresses of hotel guests, and the rooms
that the guests are occupying. N.J.S.A. 29:4-1. The statute
provides that the hotel's register "shall be available to all duly
authorized peace officers upon request." Ibid. The statute does
not apply to hotels that have more than ten sleeping rooms.
N.J.S.A. 29:4-2.
However, the court's conclusion in Lopez that citizens do not
have a reasonable expectation of privacy in the information in a
hotel or motel registry, did not turn on the application of


12 A-4425-13T3


N.J.S.A. 29:4-1. The court did not suggest that persons who stay
in hotels with more than ten sleeping rooms have a reasonable
expectation of privacy in the information in the hotel registry,
while persons who stay in hotels or motels with less than ten
sleeping rooms do not. Lopez stands for the broad principle that
hotel guests do not have a recognized privacy interest in the
information about them in the hotel's registry. Id. at 106.
Defendant cites several cases in which the court has
recognized privacy interests in certain personal information that
was provided to third parties. See State v. Reid, 194 N.J. 386,
389 (2008) (holding that New Jersey Constitution protects a
citizen's privacy interest in subscriber information given to an
internet service provider); State v. McCallister, 184 N.J. 17, 32
33 (2005) (finding that New Jersey Constitution protects bank
account holder's expectations of privacy in their banking
records); and State v. Hunt, 114 N.J. 329, 341-42 (1989) (finding
that persons have a strong expectation of privacy in their
telephone billing records).
In Reid, the Court noted that the records of internet service
providers "share much in common with long distance billing
information and bank records." Reid, supra, 194 N.J. at 398. The
Court observed that all of these records relate to activities


13 A-4425-13T3


"integrally connected to essential activities of today's society."
Ibid.
However, information in hotel and motel registries is not
comparable. Persons who use the internet, make phone calls, or
engage in banking transactions "have reason to expect that their
actions are confidential." Ibid. Persons who register in motels
or hotels do not have similar expectations of privacy. The registry
merely records basic personal information, such as the guest's
name and the room in which the guest is staying.
We therefore conclude that under Lopez, the officers did not
violate defendant's rights under Article I, Paragraph 7 of the New
Jersey Constitution when they obtained his personal information
from the motel's desk clerk.
Defendant further argues that the motion judge erred in
assessing his credibility. Defendant asserts that the judge
improperly discredited his testimony because he admitted that
before he allowed the officers into the motel room, he had
possessed PCP and destroyed it. Defendant contends his statement
could not be used to assess his credibility because he had not yet
been convicted of possessing PCP or destroying evidence.
When reviewing the trial court's decision on a motion to
suppress, we must uphold the court's factual findings if they are
"supported by sufficient credible evidence in the record." State


14 A-4425-13T3


v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386
N.J. Super. 208, 228 (2006)). We must give deference to the
findings which are "substantially influenced" by the judge's
"opportunity to hear and see the witnesses and to have the 'feel'
of the case, which a reviewing court cannot enjoy." Id. at 244
(quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
We reject defendant's contention that the judge erred in
assessing his credibility. The judge had the opportunity to see
and hear Sarkos and defendant testify. The judge found Sarkos's
testimony more credible than defendant's testimony. The judge
rejected defendant's assertion that the officers did not know of
his outstanding warrant until after they entered the room, arrested
defendant, and seized the evidence. The judge properly considered
defendant's admission that he had possessed the PCP and destroyed
it in determining whether his testimony was credible.
III.
Defendant also argues that his sentence is excessive. He
contends the court did not properly balance the aggravating and
mitigating factors. We disagree.
Here, defendant pled guilty and the State agreed to recommend
a ten-year custodial sentence, with fifty-one months of parole
ineligibility. At sentencing, the judge observed that he had
reviewed the pre-sentence report, and was satisfied that the


15 A-4425-13T3


negotiated plea agreement was fair to the State and defendant. The
judge stated that, in the interest of justice, he would follow the
recommendations in the plea agreement.
The judge noted that defendant was then forty-three years
old, and soon to be forty-four. He had three prior disorderly
convictions and three indictable convictions, the most serious of
which was for attempted murder in 1990, for which he had received
a twenty-year sentence. Defendant also had been arrested eleven
times in the previous twenty-two years.
The judge found aggravating factors three, N.J.S.A. 2C:44
1(a)(3) (risk that defendant will commit another offense); six,
N.J.S.A. 2C:44-1(a)(6) (defendant's prior criminal record and the
seriousness of the offenses of which he has been convicted); and
nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others
from violating the law.). The judge found no mitigating factors.
As noted, the judge sentenced defendant to ten years of
incarceration, with fifty-one months of parole ineligibility.
On appeal, defendant argues that other than his conviction
in this matter and his prior criminal record, there was no support
for the court's conclusion that there was a risk that he would
commit another offense. He contends the court impermissibly used
his prior record to support the risk factor, thereby erroneously
double-counting aggravating factors.


16 A-4425-13T3


Defendant further argues that the judge gave too much weight
to the need to deter, since that factor applies to all crimes. He
also contends that the judge should have found mitigating factor
eleven, N.J.S.A. 2C:44-1(b)(11) (defendant's incarceration will
result in excessive hardship). He notes that he has one minor
child, and his incarceration will prevent him from making his
previously owed child-support payments.
An appellate court's review of the trial court's "sentencing
decisions is relatively narrow and is governed by an abuse of
discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010).
An appellate court should not set aside a sentence unless (1) the
trial court did not follow the sentencing guidelines; (2) the
court's findings of aggravating and mitigating factors were not
based upon sufficient credible evidence in the record; or (3) the
court's application of the sentencing guidelines to the facts of
the case "shock[s] the judicial conscience." State v. Bolvito, 217
N.J. 221, 228 (2014) (alteration in original) (quoting State v.
Roth, 95 N.J. 334, 364-65 (1984)).

Outcome: