STATE OF NEW JERSEY v. JESUS PEDRAJA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2568-04T42568-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JESUS PEDRAJA,

Defendant-Appellant.

_______________________________________

 

Submitted April 26, 2006 - Decided May 10, 2006

Before Judges Conley and Weissbard.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 03-11-2186-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the letter-brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the letter-brief).

PER CURIAM

Following an unsuccessful motion to suppress, defendant pled guilty to first-degree armed robbery, N.J.S.A. 2C:15-1. A custodial term of fourteen years with a NERA disqualifier was imposed, along with the necessary fines and penalties. We affirm.

Defendant and his codefendant were apprehended following observations by a surveillance officer of what appeared to have been an armed robbery. That officer testified at the suppression hearing, as did another officer who was also involved in the apprehension. Based upon their testimony, the motion judge, after setting forth the applicable legal principles, made the following findings and conclusions:

Now, in light of this leading law in the field and in this area we find that the officer was doing surveillance. . . .

[H]e saw something; two men go in, two men come out. But one of the same two coming out was carrying a weapon. He has binoculars. He's either a hundred feet, which it should be noted this courtroom is about sixty feet or whatever so maybe even double the size of this courtroom, be it a hundred twenty feet, he could have perhaps seen that with the naked eye, but he's got binoculars. He sees the weapon. He not only sees the weapon, he sees the defendant struggling to get the weapon in his waistband because of the T-shirt that was sticking out.

Then he pursues the vehicle and the vehicle is stopped.

Now, what happens? Do the parties just pull over and wait for the officer to come? No. The doors are open and one person flees the scene. . . .

. . . .

[T]he officer had reasonable suspicion to believe that [a] crime had been or was about to be committed when he saw the party with the weapon, armed with the weapon. When he followed the vehicle and the vehicle stopped and one person fled with the weapon, the officer had more than probable cause to make the stop and make the arrest, more than probable cause.

That's all he needed, was the fact that he saw the weapon. That was certainly reasonable suspicion. It was certainly probable cause to pull the vehicle over. . . .

In the vehicle was a yellow bucket the surveillance officer saw defendant and codefendant leaving the robbery with. As to its seizure, premised upon plain view, the judge continued:

. . . . "[P]lain view alone is never enough to justify the warrantless seizure of evidence." [Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022, 2039, 29 L. Ed. 2d 564, 584 (1971).] And the Court said, []To justify a warrantless search not only must the officer be lawfully located in a place from which the object can be plainly seen[ but there must be probably cause to seize it] . . . is there any question that the officer had probable cause to stop the vehicle? He saw one of the defendants run with the weapon in his hand with another of the defendants at the vehicle who exited. Now, the object was not only the weapon which the officer plainly saw but also the bucket with the money and jewelry.

That object, the Court finds, could be plainly seen from the exhibits placed into evidence. There's a photograph of the object still in the vehicle and the officer testifying he could see through the driver's side window the bucket with the money in it.

. . . .

The defense argues that because the police officer said defendants may be possibly armed and that a possible robbery just occurred negates the fact that the officer knew there was a weapon.

The State argues that the officer clearly saw the weapon and the officer attempted to explain "possibly armed" or "possible robbery" to mean that that happened and that's why he said "possibly."

There was in hearing the tape words saying, "Those guys are armed. Those guys are armed."

Regardless of what the officer said, he testified under oath, and this Court finds his testimony to be credible, that he observed the defendants exiting the building, the store, and one of them was carrying a gun and the other was carrying a translucent bucket.

His testimony was straight forward, was forthright, unequivocal. He didn't hedge on what he was saying. He didn't hesitate. He didn't stutter. He didn't stammer. His story was consistent throughout. He maintained that posture and that stance in his testimony. He didn't waiver from it under intensive cross-examination.

The facts further corroborate what the officer said. He said he saw a weapon. When the vehicle was stopped one of the defendants ran with the weapon in his hand which was subsequently thrown. So there was a weapon. So the officer was right, regardless if he said a possible robbery and possibly armed.

His testimony is also credible that he had an unobstructed view. He testified to it. He testified to what he saw and he had the binoculars. The weapon was in plain view and so was the bucket. A search warrant was not necessary to be obtained in order to retrieve the bucket with the money and the jewelry in it. It's right in plain view, right in the vehicle. They didn't have to search the vehicle to find that. They looked in. It was there. There's no denial of the fact because not only the bucket was seen carried by one of the defendants, and that's the bucket that was in the car. So from the time both defendants walked out of the store and got into the car, the bucket was with them and a matter of seconds or minutes later the bucket is still in the car. So the officer saw the bucket before. He sees it in plain view.

Considering the totality of the circumstances there is no question that this was a lawful search and seizure. There is absolutely no question of that fact.

We agree.

On appeal, defense counsel contends:

POINT I: BECAUSE THE DETECTIVE'S TESTIMONY WAS NOT CREDIBLE, THE COURT ERRED IN RELYING ON THAT TESTIMONY FOR DETERMINING THAT THE STOP AND SEIZURE OF THE DEFENDANT WAS JUSTIFIED.

POINT II: THE DEFENDANT'S SENTENCE IS EXCESSIVE.

In his pro se brief, defendant contends:

POINT I: NOT ONLY DID THE TRIAL COURT ERR IN RELYING ON THE TESTIMONY OF THE DETECTIVE, THE COURT VIOLATED DEFENDANT'S RIGHT TO CONFRONT HIS ACCUSER.

POINT II: STATEMENT OF FACTS

THE APPREHENSION OF THE DEFENDANT AND ON SCENE PROCEDURE.

POINT II: LEGAL ARGUMENT

THE SEARCH OF THE VEHICLE WAS UNLAWFUL AND DOES NOT MEET THE WARRANT REQUIREMENTS FOR AUTOMOBILE, HELD BY THE SUPREME COURT.

CONCLUSION: THE SEIZURE OF ITEMS FOUND ON MR. PEDRAJA'S PERSON, IN THE CAR AND ALL THAT PERTAIN TO ARE ALL FRUIT OF THE POISONOUS TREE.

We have considered these contentions in light of the applicable law and the record. We are convinced they are of insufficient merit to warrant further discussion. R. 2:11-3(e)(2). We point out, only, as to defendant's reliance, in his pro se brief, upon the Court's recent decision in State v. Dunlap, 185 N.J. 543 (2006), that the seizure of the incriminating evidence in the vehicle, i.e., the bucket of loot in the car, was not pursuant to defendant's arrest. It was a plain view seizure found legally justified by the motion judge.

Affirmed for the reasons set forth by Judge John A. Conte.

 

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A-2568-04T4

May 10, 2006