STATE OF NEW JERSEY v. RAFAEL BAEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5830-05T45830-05T4

A-0105-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAFAEL BAEZ, a/k/a RAFAEL VASQUEZ,

Defendant-Appellant.

_________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIGUEL ANGEL FERNANDEZ,

Defendant-Appellant.

________________________________________________________________

 

Submitted - April 29, 2009

Before Judges Lyons and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 04-07-1477 and 05-03-0423.

Yvonne Smith Segars, Public Defender, attorney for appellant, Rafael Baez, Docket No. A-5830-05T4 (Alan I. Smith, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent, State of New Jersey, Docket No. A-5830-05T4 (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant, Miguel Angel Fernandez, Docket No. A-0105-06T4 (Anderson D. Harkov, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent, State of New Jersey, Docket No. A-0105-06T4 (Thomas S. Kearney, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendants Miguel Fernandez and Rafael Baez appeal from their convictions arising from the burglary of a minivan at the Mall at Four in Paramus and the use of a stolen credit card to purchase gas on December 18, 2004.

Both defendants were acquitted of a third-degree charge of burglary, N.J.S.A. 2C:18-2 (count one), and convicted on charges of fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (count two), and fourth-degree credit card theft, N.J.S.A. 2C:21-6c(1) (count three). In addition, Fernandez was convicted of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h (count four), and fourth-degree forgery, N.J.S.A. 2C:21-1 (count five).

Baez was sentenced to terms of one-year imprisonment on counts two and three, said terms to run concurrent to each other and to a sentence for violation of probation but consecutive to a sentence for an unrelated matter in Union County. Fernandez was sentenced to concurrent terms of three-years probation on counts two through five. He does not challenge his sentence.

We calendared defendants' separate appeals back to back and consolidated the appeals for the purpose of this opinion. We affirm defendants' convictions and Baez's sentence.

On January 9, 2006, Fernandez received oral Hudson warnings and signed a waiver containing those warnings. Nonetheless, he failed to appear for trial on March 14, 2006. His attorney advised the court that she had received a telephone message from him on the day before. According to the message, Fernandez was in the Dominican Republic and unable to return in time for the trial because there were "some custody issues concerning his daughter and an accident." Fernandez's attorney was unable to contact Fernandez to learn when he would return and asked the court for an adjournment of one week. Noting that Fernandez had received Hudson warnings, the trial court denied the adjournment request and proceeded with a suppression hearing that lasted three days, from March 14 to March 16, 2006. On March 16, 2006, Fernandez's counsel advised the court that she had received a call from his wife stating that he was hospitalized in the Dominican Republic but, despite counsel's requests for documentation, none was provided.

The trial began on March 21, 2006, and concluded on March 23, 2006. Fernandez did not appear for any portion of the trial but appeared on May 5, 2006, for sentencing and a motion for a new trial. No documentation was provided to the court to substantiate the representation that he had been in an automobile accident and hospitalized in the Dominican Republic. Instead, at sentencing, he told the court that his presence was required in the Dominican Republic because he was fighting for custody of his daughter, stating, "as every father knows how important children are to their fathers, that one closes his eyes and he goes for it, no matter what is at stake . . . ."

The facts elicited at the suppression hearing can be summarized as follows.

On December 18, 2004, Detective Robert Von Schalscha of the Paramus Police Department was assigned to conduct surveillance at a parking lot at the Mall at Four, on Route 4 in Paramus based on information received from the New York City Police Department. The Mall at Four is relatively small and has a jewelry center in the middle of the mall that has a history of jewelry-related crimes.

Detective Von Schalscha described the information he had received from the "intelligence sergeant" regarding his assignment. The Paramus Police Department has a working relationship with the New York City Police Department Organized Theft Task Force (the "O.T.T.F."). However, he was aware that the O.T.T.F. had developed an intelligence network through their investigations, which "specifically deal with South American gangs." The information received from the O.T.T.F. was that a possible "jewelry crew" was "coming from New York to New Jersey and that they may hit at the Mall at Four." Detective Von Schalscha explained that a "jewelry crew" consisted of two to four people who operated as a professional crew, each with a specific function. He understood the intelligence to mean that the crew was either going to "conduct surveillance of a jeweler, a jewelry center and possibly commit criminal activity, i.e., robbery or a theft of jewelry." Detective Von Schalscha was not provided any information about the race of the suspects.

At about 2 p.m. during this assignment, Detective Von Schalscha observed a gold Acura Legend come across the exit/entrance area of the Mall at Four, travel past the south side of the mall and continue west along the front of the building. Although it was the week before Christmas, the parking lot was not crowded as there were vacancies at the mall. Detective Von Schalscha observed that the Acura was "traveling in a manner very slowly looking around; they did not appear to be looking for a parking space." The Acura continued north around the southwest side of the building, went around the back of the mall and eventually came back out to the south side of the mall. Based upon the information received from the "Intel Division," Detective Von Schalscha found this activity to be suspicious. He explained that the Acura's occupants did not look for a parking space that he could see and they passed one exit on one occasion. As the Acura passed him, he noticed that it had New Hampshire license plates and was occupied by three Hispanic males.

When the Acura exited the parking lot onto Route 4 West, Detective Von Schalscha followed in his unmarked vehicle. The Acura pulled into a gas station next to the mall. Detective Von Schalscha pulled into the McDonald's parking lot next door. Using binoculars, he observed the driver hand the attendant a credit card to pay for gas and later sign a credit receipt. Detective Von Schalscha notified his sergeant that he was following the Acura and requested a marked patrol unit for possible assistance as the Acura proceeded on Route 4.

It was a Saturday afternoon and the traffic on Route 4 was "medium to heavy." Detective Von Schalscha observed the Acura make two to three lane changes without signaling. The Acura was traveling in the center lane as it approached Spring Valley Road and then "abruptly exited" from that lane without signaling. Detective Von Schalscha notified Officer Thomas D'Amato and his Sergeant that the Acura made a U-turn to proceed onto Route 4 East. He continued to follow the vehicle. At his request, Officer D'Amato, who was in a marked vehicle, conducted a motor vehicle stop of the Acura.

As he approached the vehicle with Officer D'Amato, Detective Von Schalscha noticed that everyone in the Acura was moving around. While Officer D'Amato requested the driver's license, registration and insurance card, Detective Von Schalscha observed the rear-seat passenger attempt to place his right foot on top of a wallet. He also saw a black tool protruding from the front passenger seat. Detective Von Schalscha recognized the tool through his experience with auto crime as one used to gain illegal entry to vehicles. Concerned that the tool could be used as a weapon, he asked all the occupants to get out of the car and sit on the curb. Defendants Fernandez and Baez were the driver and front-seat passenger, respectively. The rear-seat passenger was Nelson Rodriguez. Officer D'Amato observed two credit cards on the driver's floorboard that proved to be in the name of Kelly Fletcher. The wallet observed in the rear of the car was removed and found to contain a driver's license for Kelly Fletcher. In addition, the officers retrieved a red diaper bag that contained women's articles, including glasses and a cellphone. Sergeant Robert Guidetti went through the menu on the cellphone and called the listing for "home." The man who answered said that he had just received a call from his wife in which she reported that her pocketbook had been stolen while she was at the Mall at Four.

Fernandez, Baez, and Rodriguez were arrested. Fernandez was also issued a summons for failure to signal, N.J.S.A. 39:4-126.

Based upon this testimony, the trial court denied defendants' motions to suppress evidence.

The testimony at trial was consistent with that presented at the motion hearing. In addition, Kelly Fletcher testified that she had parked her minivan at the Mall at Four parking lot on December 18, 2004. She left a red diaper bag, which contained a few gift cards, her wallet, her cell phone, and $25 cash, among other things, in the locked minivan while she took her daughter and two friends to a birthday party at the mall. When she returned to her automobile approximately twenty minutes later, she saw that her door was not working properly and, shortly thereafter, she realized that her belongings were missing. After receiving a call from the police, she went to the Paramus Police Department, where she identified her stolen property. She valued the stolen items as follows: wallet and diaper bag, $50; two gift cards, $100; missing cash, $25; "fairly new" cell phone, $100, for a total of $275. There were two unauthorized charges to her Visa debit card that day at a Route 4 gas station for $47.

On appeal, Baez argues as follows:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.

A. DETECTIVE VON SCHALSCHA'S DECISION TO FOLLOW THE ACURA OUT OF THE MALL'S PARKING LOT WAS PREDICATED SOLELY ON THE RACE AND NATIONAL ORIGIN OF THE OCCUPANTS OF THE VEHICLE AND CONSTITUTES ILLEGAL RACIAL PROFILING.

B. THE SUBSEQUENT STOP OF THE VEHICLE WAS A "PRETEXT STOP" WITHOUT ANY LEGAL JUSTIFICATION.

C. THE SUBSEQUENT SEIZURE OF THE WALLET, DIAPER BAG, CREDIT CARDS, AND OTHER ITEMS FROM THE ACURA SHOULD HAVE BEEN SUPPRESSED AS BEING THE "FRUIT OF THE POISONOUS TREE."

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL.

A. THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED BECAUSE THE STATE ONLY PRODUCED SPECULATIVE EVIDENCE OF GUILT.

B. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND REPRESENTED A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.

POINT III

THE TRIAL COURT ABUSED ITS JUDICIAL SENTENCING DISCRETION BY HAVING THE AGGREGATE ONE (1) YEAR SENTENCE RUN CONSECUTIVE TO THE SIX (6) YEAR SENTENCE THE DEFENDANT WAS SERVING ON AN UNRELATED UNION COUNTY INDICTMENT.

Fernandez raises the following points on appeal:

POINT I

THE COURT ERRED WHEN IT DENIED DEFENSE COUNSEL'S MOTION FOR A CONTINUANCE DUE TO DEFENDANT'S ABSENCE AND WHEN IT FAILED TO CONDUCT A HEARING TO DETERMINE WHETHER DEFENDANT'S ABSENCE WAS A KNOWING AND INTELLIGENT WAIVER OF HIS RIGHT TO BE PRESENT FOR TRIAL.

POINT II

THE COURT ERRED WHEN IT FAILED TO SUPPRESS EVIDENCE SEIZED AS A RESULT OF AN ILLEGAL SEARCH ON DECEMBER 18, 2004.

POINT III

DEFENDANT'S MOTION TO DISMISS COUNT TWO SHOULD HAVE BEEN GRANTED AS THE STATE FAILED TO PRESENT ADEQUATE PROOF OF THE VALUE OF THE ITEMS STOLEN TO PERMIT A JURY TO FIND DEFENDANT GUILTY OF A CRIME.

Both defendants contend that Detective Von Schalscha engaged in illegal racial profiling in following the Acura out of the mall parking lot and that the subsequent stop of the vehicle was a pretext stop without any legal justification. The defendants concede, however, that if the stop were justified, the evidence seized from the vehicle would be admissible as the product of a valid warrantless "plain view" seizure.

Our analysis begins with the requirements of the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution. State v. Maryland, 167 N.J. 471, 482 (2001). Detective Von Schalscha's action in following defendants from the mall parking lot did not implicate these constitutional protections because their freedom to move was unrestricted. See id. at 483; see also State v. Segars, 172 N.J. 481, 492 (2002); State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973). We review his decision to follow the defendants to determine whether he selected defendants for further investigation based solely on their ethnic identity. If race is the sole motivation underlying an investigatory stop or search, the police conduct violates the Equal Protection Clause of the Fourteenth Amendment and the resulting evidence must be suppressed. Maryland, supra, 167 N.J. at 485; see Segars, supra, 172 N.J. at 492-93.

To prevail on this claim, the defendants must present a prima facie case of racial targeting. Segars, supra, 172 N.J. at 493-94. If defendants do so, the State must respond with a race-neutral explanation that creates a "genuine issue of fact," at which point the presumption of discrimination disappears, and the defendant must prove the State's explanation is a pretext. Id. at 494-96. The defendant bears "the ultimate burden of proving by a preponderance of the evidence that the police acted with discriminatory purpose, i.e., that they selected him because of his race." Id. at 493.

In an effort to meet this burden, Baez has cited the Attorney General's Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling (Apr. 20, 1999). However, that report was confined to practices, procedures, and training of the New Jersey State Police. The report included no findings about any other police agencies and is inapplicable here. See State v. Halsey, 340 N.J. Super. 492, 503 (App. Div. 2001), certif. denied, 171 N.J. 443 (2002). There was no evidence that Detective Von Schalscha or the Paramus Police Department had any history of engaging in racial profiling. In fact, Detective Von Schalscha specifically denied doing so. Defendants' prima facie case therefore rests upon the following: Detective Von Schalscha acknowledged that he noticed that all three occupants were Hispanic when the Acura drove past him and that he was aware that the O.T.T.F specialized in investigating South American gangs.

Granting defendants the benefit of inferences that can be drawn from those facts, Segars, supra, 172 N.J. at 493-94, we turn to whether the State has presented a race-neutral explanation for Detective Von Schalscha's decision to follow defendants from the parking lot.

As the trial court noted, Detective Von Schalscha was assigned to conduct surveillance at a specific location based upon a "relatively or rather specific alert" from the O.T.T.F. The information he received "pre-existed" his encounter with defendants in the Mall at Four parking lot. See Maryland, supra, 167 N.J. at 485. The detective's attention was drawn to defendants' vehicle because it had out-of-state plates and because of its movements, slowly circling an uncrowded mall parking lot with no indication that the occupants were looking for a parking space. The conduct observed was consistent with the intelligence that a "jewelry crew" might conduct surveillance at the Mall at Four. The fact that there were three occupants was consistent with the detective's understanding that a "jewelry crew" consists of two to four members. The fact that the occupants were Hispanic in appearance was consistent with the detective's understanding that the O.T.T.F. specialized in the investigation of South American gangs. As the trial court noted, far from being the sole motivation for following them, defendants' ethnic identity was merely an incidental fact that was consistent with the information provided by the O.T.T.F. These findings are supported by substantial, credible evidence.

There was, therefore, a reasonable basis for the non-intrusive investigative action that followed. See State v. Birkenmeier, 185 N.J. 552, 564-65 (2006) (reasonable and articulable suspicion required for an investigatory stop present based upon confidential informant's information that was corroborated by police observations). Although the ethnic identity of defendants was included, the other observations relied upon, coupled with the pre-existing intelligence, adequately explained that Detective Von Schalscha's decision to follow defendants was not based solely on race.

Defendants failed to show that the basis articulated for the decision to follow them was merely a pretext. We conclude that defendants failed to prove by a preponderance of the evidence "that the police acted with discriminatory purpose, i.e., that they selected [them] because of [their] race." See Segars, supra, 172 N.J. at 493. Therefore, the police conduct did not violate the Equal Protection Clause of the Fourteenth Amendment. See Maryland, supra, 167 N.J. at 485.

Once the Acura was stopped and defendants were detained, the constitutional protections against unreasonable searches and seizures applied. U.S. Const. amend. IV; N.J. Const. art. I, P 7; Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979); State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 77 U.S.L.W. 3632 (U.S. May 18, 2009). For the stop to be valid, the State was required to prove by a preponderance of the evidence that the stop was "based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed." Amelio, supra, 197 N.J. at 211 (quoting State v. Carty, 170 N.J. 632, 639-40, modified by 174 N.J. 351 (2002)). The reasonable suspicion standard requires "some minimal level of objective justification for making the stop." State v. Nishina, 175 N.J. 502, 511 (2003) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989)); State v. Baum, ___ N.J. ___ (2009) (slip op. at 19) (initial stop justified by absence of required inspection sticker).

The statute relied upon by the State, N.J.S.A. 39:4-126, provides in pertinent part as follows:

No person shall . . . move right or left upon a roadway . . . unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.

In State v. Williamson, 138 N.J. 302 (1994), the Supreme Court reviewed the level of reasonable and articulable suspicion required to justify an investigative stop under this statute. The Court agreed with the State that "it need not establish that the move [without signaling] actually affected traffic" or that "a motor-vehicle violation occurred as a matter of law." Id. at 304; see also State v. Locurto, 157 N.J. 463, 470 (1999). Observing that "[c]onstitutional precedent requires only reasonableness on the part of the police, not legal perfection," the Court stated that the police officer "needed only a reasonable and articulable suspicion that defendant's failure to signal may have affected other traffic." Williamson, supra, 138 N.J. at 304 (emphasis added). The Court focused on the implications of the language "may affect traffic" as indicating that such traffic is "fairly close and visible, and that the signal need not be dictated solely by concerns of safety and accident avoidance." Ibid. The court reasoned, "Motorists in the vicinity whose movements may be affected must be made aware of a driver's intentions." Ibid. To justify a stop, then, "the officer ordering a stop must have some articulable basis for concluding that the lane change might have an effect on traffic." Ibid.

In articulating the basis for the stop here, Detective Von Schalscha described traffic on Route 4 that was medium to heavy and, therefore, "fairly close and visible." It was a Saturday during the holiday shopping season. He observed two to three lane changes and an abrupt movement from the center lane to exit the highway -- all made in medium to heavy traffic without signaling.

When reviewing a motion to suppress, an appellate court "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,'" giving deference to its credibility findings. State v. M.A., 402 N.J. Super. 353, 364 (App. Div. 2008) (quoting State v. Elders, 192 N.J. 224, 243 (2007)); accord Locurto, supra, 157 N.J. at 474. The trial court explicitly found that Detective Von Schalscha was credible and that the essential events occurred as he described them. Such findings are entitled to deference by this court because they are "substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244; State v. Johnson, 42 N.J. 146, 161, (1964). Giving appropriate deference to the trial court's findings, as supported by substantial evidence, we agree that Detective Von Schalscha's stated reasons for the stop satisfied the level of reasonable and articulable suspicion required to justify an investigative stop. See State v. Pena-Flores, 198 N.J. 6, 12, 30 (2009).

After reviewing the record, we conclude that the remaining issues raised by defendants lack sufficient merit to warrant discussion in a written opinion except for the following brief comments. R. 2:11-3(e)(2).

Fernandez challenges the trial court's decision to deny his counsel's adjournment request and proceed to trial in his absence. This decision was addressed to the trial court's discretion. State v. Finklea, 147 N.J. 211, 221 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997); see also Hudson, supra, 119 N.J. at 183.

A criminal defendant may explicitly or implicitly waive his or her constitutionally protected right to be present at trial. State v. Luna, 193 N.J. 202, 209-10 (2007); Grenci, supra, 197 N.J. at 616-17. The trial court cited the following reasons for its ruling: Fernandez received properly administered Hudson warnings; signed a written waiver containing notice of the scheduled trial date; his absence was inexcusable; and delaying the trial would be judicially inefficient.

Fernandez does not deny that he received oral Hudson warnings, signed a waiver containing those warnings, and was aware of the trial date. Fernandez attempts to dispute that his absence was "knowing, voluntary and unjustified," see Grenci, supra, 197 N.J. at 619, but he never submitted any documentation to the trial court to substantiate his claim that his absence was either involuntary or justified, even though he had the opportunity to do so in support of his motion for a new trial. R. 3:20-1. Given the defendant's obligation to show why his voluntary absence was justified, Luna, supra, 193 N.J. at 214-15; Finklea, supra, 147 N.J. at 220, the trial court was not required to pursue any further inquiry regarding his absence. These facts constituted an adequate basis for the court to conclude that Fernandez had waived his appearance pursuant to Rule 3:16, and, therefore, the trial court's decision to deny the adjournment was not an abuse of discretion.

Defendants claim that their motions for judgments of acquittal should have been granted because the evidence was insufficient to support their convictions. As to the claim that the evidence was insufficient to prove the value of the items stolen, our courts have consistently held that an owner is competent to estimate the value of his or her own personal property "whether or not [the owner] is generally familiar with the value of like articles," and it is for the jury to determine the probative value of that testimony. State v. Romero, 95 N.J. Super. 482, 487 (App. Div. 1967). The evidence Kelly Fletcher provided regarding the value of the items stolen from her provided a sufficient basis for the jury's verdict. See State v. Perez, 177 N.J. 540, 549 (2003). Similarly, contrary to Baez's contention, the evidence indicating that the stolen credit cards were present in the automobile he occupied was also sufficient to sustain a conviction for theft based upon his constructive possession of the credit cards. See State v. Palacio, 111 N.J. 543, 552-54 (1988).

Affirmed.

 

Co-defendant Nelson Rodriguez has not appealed from his convictions.

State v. Hudson, 119 N.J. 165 (1990); see also State v. Grenci, 197 N.J. 604, 617 (2009).

See State v. Johnson, 171 N.J. 192, 206-08 (2002) (setting forth requirements of plain view seizures); State v. Pineiro, 369 N.J. Super. 65, 72 (App. Div.), certif. denied, 181 N.J. 285 (2004 (accord).

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A-5830-05T4

July 13, 2009