STATE OF NEW JERSEY v. KELVIN ANDERSON

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0850-06T40850-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KELVIN ANDERSON,

Defendant-Appellant.

___________________________________

 

Submitted January 21, 2009 - Decided

Before Judges Graves and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Indictment No. 05-11-1204.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Abby P.

Schwartz, Assistant Deputy Public

Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Pursuant to a plea agreement negotiated after the trial court denied his motion to suppress evidence, defendant Kelvin Anderson pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3). In return for defendant's plea of guilty, the State agreed to recommend a sentence of incarceration for a term of five years subject to a thirty-three-month period of parole ineligibility. The State also agreed to dismiss the remaining count of the indictment, possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), and summonses issued for his failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f), and possession of a controlled dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1. The court sentenced defendant in accordance with the plea agreement and imposed the mandatory driver's license suspension, penalties, fees and assessments.

On appeal defendant contends that the trial court erred in denying his motion to suppress. He argues that this court must reverse because the testimony of the arresting officer was not credible.

Detective Skipper of the Union Township Police Department and defendant were the only witnesses at the hearing on defendant's motion to suppress. According to the detective, he and his partner were patrolling in an unmarked police car on August 11, 2005. At approximately 4:00 p.m., they saw a red Acura traveling north. As the car passed, the detective noticed that defendant was not wearing a seatbelt. He was not sure whether he or his partner observed the violation first, but he took down the license plate number and used the mobile data terminal in the police car to check the license plate against motor vehicle records and those of the National Crime Information Center (NCIC). The records reflected an outstanding warrant authorizing the arrest of the registered owner of the Acura.

After the officers had the information about the warrant, they stopped the Acura and questioned defendant. He produced a driver's license that allowed the detective to identify him as the registered owner of the car and the person named in the warrant. On that ground, the detective arrested defendant and searched him. During the search, the detective retrieved forty-eight vials of cocaine from the right-front pocket of defendant's pants.

Although defendant testified that he was wearing his seatbelt, the trial court credited the detective's testimony. It found that the officers saw the seatbelt violation, learned about the warrant and stopped defendant to issue a summons and determine whether he was the person named in the warrant.

Based on those factual findings, the trial court concluded that the State established that the officers lawfully obtained the evidence of defendant's drug offense. The court reasoned as follows. The officers' observation of defendant driving without a seatbelt gave them probable cause to stop the vehicle and issue a summons for that motor vehicle violation. See State v. Locurto, 157 N.J. 463, 470 (1999). The officers did not impinge upon defendant's right to be free from unreasonable searches when they checked NCIC records and learned that there was a warrant for the arrest of the car's registered owner, State v. Sloane, 193 N.J. 423, 434-39 (2008). Based on the information they obtained from NCIC, the officers had reason to suspect that there was a warrant for defendant's arrest and an adequate ground for stopping the car to make inquiries necessary to confirm or dispel their reasonable suspicion. See State v. Dickey, 152 N.J. 468, 476 (1998). After defendant produced his license, the officers had probable cause to arrest him on the warrant and authority to search his person incident to that arrest. See State v. Moore, 181 N.J. 40, 45 (2004).

We affirm substantially for the reasons stated by the trial court. In arguing that the detective's testimony was not credible, defendant fails to appreciate "the standard of appellate review that applies to a motion judge's findings in a suppression hearing." State v. Elders, 192 N.J. 224, 243 (2007). We must "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). And, 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." Elders, supra, 192 N.J. at 243 (internal quotations omitted); see Locurto, supra, 157 N.J. at 474. We can disturb the trial court's findings and substitute our own "only if the

[findings] are so clearly mistaken that the interests of justice demand intervention and correction." Elders, supra, 192 N.J. at 244 (internal quotations omitted).

Because the findings defendant asks us to disturb are well-supported by the testimony of a witness that the trial court had the opportunity to see and hear and found credible, there is no reason for us to disturb them. The arguments defendant offers to establish a clear mistake by the trial court lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

5

A-0850-06T4

February 6, 2009