STATE OF NEW JERSEY v. JULIO A. CLUSAN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4177-06T44177-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIO A. CLUSAN aka ANTHONY J. CLUSAN

aka JULIO ANTHONY CLUSA aka PETER

CLUSAN aka TONY CLUSAN aka TONY CLUSON

aka ANTONIO CLUSAN,

Defendant-Appellant.

_________________________________________________

 

Submitted February 25, 2009 - Decided

Before Judges Payne and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

05-12-1293.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Amira R. Scurato,

Assistant Deputy Public Defender, of

counsel and on the brief).

Anne Milgram, Attorney General, attorney

for respondent (Michael J. Williams,

Deputy Attorney General, of counsel and

on the brief).

PER CURIAM

Defendant, Julio Clusan, challenges the denial of his motion to suppress evidence, after which he pled guilty to two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; and one count each of second-degree eluding, N.J.S.A. 2C:29-2b; third-degree criminal mischief, N.J.S.A. 2C:17-3a; fourth-degree aggravated assault committed upon a police officer, N.J.S.A. 2C:12-1b(5); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a; and two counts of fourth-degree unlawful possession of an imitation firearm, N.J.S.A. 2C:39-4e. The prosecutor made no recommendations as to sentence except to agree not to move for an extended term and to recommend that all sentences run concurrently. Thereafter, defendant was given concurrent sixteen year sentences, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery counts and, following merger, given lesser concurrent sentences on the remaining counts.

Defendant has appealed from the order denying his motion for suppression of evidence and from his sentence, arguing as follows:

POINT I

THE WARRANTLESS SEARCH OF DEFENDANT'S VEHICLE AND THE SEIZURE OF ITEMS THEREIN WAS NOT JUSTIFIED BY ANY EXCEPTION. AS A RESULT THE FRUITS OF THAT UNCONSTITUTIONAL SEARCH AND SEIZURE SHOULD HAVE BEEN SUPPRESSED. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7.

POINT II

THE SENTENCE IMPOSED WAS EXCESSIVE, REQUIRING REDUCTION. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. 9, PARS. 1, 9, 10.

Additionally, the State has noted that the judgment of conviction fails to specify the five-year period of parole supervision mandated by NERA in connection with the two first-degree robberies. The matter is therefore remanded for a correction of the sentence. The orders of the trial court are otherwise affirmed.

The record discloses that defendant, having painted his face black and donned a wig, hat and sun glasses, robbed the Echo Queen diner in Mountainside at gunpoint shortly after midnight on August 24, 2005. The police quickly located defendant and his car, a red Volkswagen Passat with New York tags, which was being driven with its headlights off in the vicinity of the diner. Officers Michael Pasquale and James Urban gave chase, driving eastbound on Route 22. After Pasquale activated his lights and sirens, defendant stopped his car on the road's shoulder and was boxed in by Pasquale, who parked behind defendant, and Urban, who parked perpendicular to defendant in front of defendant's vehicle. However, when Pasquale approached the passenger side of defendant's car and directed defendant to put his hands up, defendant rammed Urban's vehicle, moving it thirty feet, and sped away, continuing east on Route 22.

After ascertaining that Urban was unhurt, Pasquale continued the chase into Springfield and observed defendant driving east in the westbound lane of Route 22. At this point, defendant left Route 22 and, while traveling on Springfield streets, attempted to ram a Springfield police vehicle, but was unsuccessful. Defendant then drove into a commercial area, proceeded through some bushes, and emerged in a commercial parking lot where he rammed the left front of Pasquale's vehicle. Defendant then drove toward Route 22, crossed the westbound lanes and continued into the parking lot of a 7-Eleven store. As defendant then left the lot, he jammed on his brakes and was hit by Pasquale's car. The force of the impact impelled both vehicles across the eastbound lanes of Route 22 to the shoulder, where they came to rest.

Upon stopping, defendant ran on foot from his car along a fence surrounding an Autoland car dealership, leaving the door to the car open and the motor running. At this point, multiple other police officers took up the chase, ultimately finding defendant hiding in weeds or bushes. Pasquale was ordered to remain at the crash site, where he was later joined by Detective Amberg, who was "milling about." No other officers remained at that location. However, a crowd had gathered at the 7-Eleven, and passing motorists slowed to view what was occurring.

Pasquale testified that he feared that defendant would return to his vehicle and that a gunfight would ensue. When asked what he had done at the crash site, Pasquale responded:

The door was wide open to the driver's side of the vehicle. I looked inside the vehicle for possibly any weapons because the suspect wasn't found at that time, he was still on the loose on foot. And when I searched the vehicle I found on the driver's side door arm a syringe, a medical syringe, I found in the center console make-up brushes and make-up, and on the passenger side floor was a black wig, a black there was a black hat and sunglasses in plain view. And then I searched and I did find a firearm which at the time was later identified as an imitation firearm.

In cross-examination, Pasquale stated that no part of the gun was visible when he commenced his search. He removed nothing from the vehicle, but the items were photographed by Detective Amberg.

After defendant was located, he was arrested and charged both with the Echo Lake robbery and a robbery that had occurred earlier in the day at a 7-Eleven store.

At the suppression hearing, the defense conceded probable cause but argued that exigent circumstances did not exist. The judge denied defendant's motion, ruling that defendant had not been arrested at the time the search took place and that the search was justified by the need to determine whether the fleeing suspect remained armed. The judge stated:

The vehicle was open, it was running, we have a fluid situation, it would certainly I think to any reasonable observer seem unreasonable to not at least look in that car to see if the weapon was there so that at least you could tell the other officers there's no weapon here, he may be armed.

Additionally, the judge found it "conceivable" that the defendant would have somehow circled back to his car. The judge further found the circumstances of the pursuit and ultimate crash to have been unforeseeable; the investigation ongoing; and any attempt to obtain a warrant to have been impractical.

On appeal, defendant argues that the motion judge's reasoning was flawed, because the police would have presumed that they were pursuing an armed suspect, and would have behaved accordingly, regardless of whether there was a gun in the car. That may be so. Nonetheless, we regard the circumstances, when considered in their entirety, to have been sufficiently exigent to justify Officer Pasquale's warrantless search. State v. Pena-Flores, 198 N.J. 6, 26 (2009) (requiring that courts consider not only the mobility of the vehicle and the lessened expectation of privacy in it, but also "all of the facts and circumstances surrounding the search to determine the existence of exigency.").

As the Court observed in Pena-Flores,

The notion of exigency encompasses far broader considerations than the mere mobility of the vehicle.

Exigency must be determined on a case-by-case basis. No one factor is dispositive; courts must consider the totality of the circumstances. How the facts of the case bear on the issues of officer safety and the preservation of evidence is the fundamental inquiry. There is no magic formula it is merely the compendium of facts that make it impracticable to secure a warrant. In each case it is the circumstances facing the officers that tell the tale.

Legitimate considerations are as varied as the possible scenarios surrounding an automobile stop. They include, for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be cause by obtaining a warrant would place the officers or the evidence at risk.

[Id. at 28-29 (citations omitted).]

In the present matter, the hour was late; a crime had just been committed; the perpetrator remained at large. Additionally, it was known that the perpetrator had utilized a gun in committing the crime. His escape had been marked by violence and a reckless disregard for the safety of himself, the police and passersby. In the circumstances, it was not unreasonable to expect that defendant would return to his car, retrieve his weapon, and use it to effect his escape. Such conduct, if it occurred, would likely endanger not only the police but also the people standing in the parking lot of the 7-Eleven and passing motorists on a heavily traveled portion of Route 22. Similarly, see State v. Carroll, 386 N.J. Super. 143, 159 (App. Div. 2006). Moreover, although multiple officers had joined in chasing defendant, only two stood guard over defendant's car. Compare State v. Dunlap, 185 N.J. 543, 551 (2006) (observing that the presence of ten officers on residential street supported the conclusion that exigency was absent but stating: "Different facts, such as a roadside stop effectuated by only one or two officers, would likely have changed the calculus."). In these circumstances, it was reasonable for the police to determine that a search was warranted (a matter defendant does not contest) and obtaining a warrant was impracticable. We thus conclude that the warrantless search that was conducted was validly performed pursuant to the automobile exception to the warrant requirement.

Defendant additionally challenges as excessive his sixteen-year sentence, subject to NERA. We disagree with defendant's position, determining after a review of defendant's criminal history and consideration of the nature and circumstances of the crimes upon which the challenged sentences were imposed that the sentence was neither manifestly excessive nor unduly punitive and did not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 219-20 (1989); State v. Ghertler, 114 N.J. 383, 389-93 (1989); State v. Roth, 95 N.J. 334, 356-66 (1984).

 
Defendant's conviction and sentence are affirmed. The matter is remanded for correction of the judgment of conviction to specify a five-year period of parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

The record does not establish whether defendant's car, although damaged, remained drivable.

The record does not reflect whether Officer Pasquale observed these items prior to his entry into the car.

We accept the motion judge's finding of fact in this regard, determining that it was adequately supported by the testimony of Officer Pasquale. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

(continued)

(continued)

9

A-4177-06T4

June 8, 2009