STATE OF NEW JERSEY v. ARIEL BERMUDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0118-07T40118-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARIEL BERMUDEZ,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 3, 2010 - Decided

Before Judges Graves and Sabatino.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment Nos.

05-11-2538 and 05-05-1173.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Sylvia M. Orenstein, Assistant

Public Defender, on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Nicole D. Garofano,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

After the trial court denied his suppression motion, defendant Ariel Bermudez pled guilty to first-degree robbery and various other charges in two separate indictments. On appeal, defendant contends the plain view doctrine cannot justify the seizure of evidence from a motel room because the officer who discovered the evidence "was not lawfully in the motel room when he supposedly saw a gun sticking out from behind a refrigerator on the far wall." In addition, defendant claims his sentence "is excessive and should be reduced." We affirm.

On December 27, 2004, two armed males forced their way into a jewelry store in Marlboro Township owned by John and Valerie Humbert and robbed them at gunpoint. Both men wore masks, but one of the masks kept falling down during the course of the robbery, and the Humberts saw the man's face. When the men left, Mr. Humbert called the police, and Detective Michael Meany of the Monmouth County Prosecutor's Office assisted with the investigation. Both Mr. and Mrs. Humbert described the man whose face had been exposed and said he had a scar over his eye.

On January 21, 2005, Meany was contacted by the Howell Township Police regarding another robbery investigation involving two sisters, Elinet Vega and Jacqueline Ramirez. The sisters reported they had been assaulted by an unidentified gunman who repeatedly demanded to know where "I Just's stuff was." The assault occurred while the sisters were occupying a motel room with Jeffrey Santos, Ms. Ramirez's boyfriend. Ramirez and Santos both gave formal statements to the police and advised the police that defendant's nickname was "I Just."

When Ramirez was interviewed, she said her sister had confided in her that she drove the car used during the robbery of the jewelry store. Ramirez and Santos told the police that the gunman probably came to the motel room demanding "I Just's stuff" because Vega had been involved in the robbery. According to Ramirez and Santos, defendant believed Vega was responsible for stealing some of the jewelry from him.

When the police interviewed Santos, he told them defendant admitted "he did this jewelry store robbery." In addition, Santos said that defendant was "a ranking member of the 'Bloods' gang," he was "always armed with a handgun," he was always with other individuals, and he "always [had] an armed driver with him."

Based on the information provided by Ramirez and Santos, Detective Meany attempted to interview Elinet Vega but was unable to locate her. When Meany spoke to members of Vega's family, they said they were concerned for her safety because they had not seen her for several days, and Vega had told them she was afraid defendant would kill her.

During the course of his investigation, Detective Meany learned that there were three outstanding arrest warrants for defendant, and that Ocean County Social Services had placed Vega in a room at the La Fontana Motel in Seaside Heights. On January 26, 2005, Meany and another officer were traveling to the motel when the Howell Township Police Department notified him that defendant was in room 115.

Upon arriving at the motel, Meany observed defendant near a pay phone outside the motel office, and he contacted his office and the Seaside Heights Police Department for assistance. Meany planned to "surprise" defendant and arrest him while he was using the phone, but was unable to do so before defendant hung up the phone and went to room 115 on the second floor of the motel.

Meany confirmed that room 115 was registered to Vega and obtained a key to the room at the motel office. He also called defendant on his cell phone and told him to come out of the room "with his hands in the air." Defendant initially refused to leave the room, but a few minutes later "exited the room with his hands about chest high." At that point, Meany ordered defendant to "get down on the ground" and handcuffed him.

At the suppression hearing, Meany testified that defendant left the door to room 115 "wide open" when he exited the room, and he testified as follows:

Q. What did you do after you cuffed the Defendant?

A. As soon as I cuffed him I go in the room.

Q. Now where's your gun at this point?

A. My gun is out. As soon as I cuff him and I go in that room, I take my gun out.

Q. Where was the uniformed Seaside officer?

A. He was behind me, covering me.

Q. And when you went into the room with the gun, why was your gun drawn?

A. Because I didn't know who else was in that room. I was told that he travels with other people and the people that he travels with have guns. That's why I had my gun out.

Q. Why did you go in the room?

A. To see if there was anyone else in there armed, and also to see if Elinet Vega -- who had been unaccounted for for several days -- was in there.

Q. What were your concerns specifically about who might be in the room?

A. It was her room. I was concerned about her well-being. She hadn't had any contact with any family members. It was her room . . . and I was also concerned that some of his associates that we were told are always armed and always with him, and had been with him on at least three prior crimes, were in that room with him.

Upon entering the motel room, Meany observed two beds on the right side, a countertop with a microwave and refrigerator on the back wall, and a bathroom to the right of the countertop. As Meany approached the bathroom, he saw "a handgun sticking out from behind the refrigerator," which was located on top of the counter. While facing the bathroom door with his gun in his right hand, Meany used his left hand to move the refrigerator so he could remove the gun that was partially protruding from behind the refrigerator. As he did so, Meany saw a second gun, a revolver, next to the first gun. Meany then checked the bathroom, and he determined that nobody else was present in the motel room. The police subsequently obtained a search warrant for the room and other incriminating evidence was recovered.

The only witnesses to testify at the suppression hearing were Detective Meany and defendant. Defendant admitted the guns were his, but he testified "the guns were not in plain view" because he had wrapped them in a rag "and tucked them behind the refrigerator inside a hole" prior to leaving the room. Defendant also claimed he locked the door behind him when he left.

The court found the testimony of Detective Meany to be more credible than defendant's testimony, and concluded that "the officers lawfully arrested the [d]efendant, lawfully entered the motel room, and lawfully seized the weapons." The court's findings included the following:

In the present case the [d]efendant was the named subject [in] three outstanding arrest warrants. . . . [T]herefore, once the officers located Mr. Bermudez, they [had] the affirmative duty to execute the warrants and arrest him.

The key question here is was the entry into the hotel room lawful? The protective search of a dwelling is justified for the police to search for any additional individuals who may be present and capable of harming the officers, State v. Smith, 140 [N.J. Super. 368 (App. Div. 1976), aff'd o.b., 75 N.J. 81 (1977)]. Such a protective sweep is justified any time the officers' safety could be endangered. The search is limited to the space that is immediately adjoining the place of the arrest from where an attack could be launched such as closets or under beds, and then obviously a bathroom connected to a hotel room certainly would apply. See [Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, l 08 L. Ed. 2d 276 (1990)].

. . . .

The facts further indicate that the protective sweep is warranted in this case. Regardless of whether the door remained open or closed, detectives faced a situation which other individuals could certainly emerge from a room and launch an attack. Furthermore, Elinet Vega had been identified as the get-away driver on the night of the robbery, and it was established that the Defendant did not commit the robbery of "By the Carat" alone. Thus, it was possible for any of the co-conspirators to emerge from the room.

Additionally, the [d]efendant had been described as a ranking member of the "Bloods" gang and traveled with an armed person at all times, and as such there was more than enough suspicion to justify a protective sweep of the motel room. Even if I were to believe that the motel room [was] closed, the police were still justified in entering the room in order to perform the protective sweep.

Thus, the court determined the police were aware that defendant "had been described as a member of the 'Bloods' gang and traveled with an armed person at all times," and therefore the protective sweep of the motel room was justified. See State v. Davila, ___ N.J. ___, ___ (2010) (slip. op at 44) ("Unlike a Terry or Long stop which is designed to ferret out weapons that might be used against police officers, the protective sweep is aimed at protecting officers from dangerous individuals."). Moreover, the sweep of the motel room was "narrowly confined to a cursory visual inspection of those places in which a person might be hiding," Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 1094, 108 L. Ed. 2d 276, 281 (1990), and lasted "no longer than . . . necessary to dispel the reasonable suspicion of danger." Id. at 335-36. Under these circumstances, the trial court correctly concluded that the police officers lawfully entered the motel room and conducted a protective sweep to determine whether any dangerous individuals were present.

The court also determined that the seizure of the weapons was justified under the plain view exception to the warrant requirement. To justify the seizure of an item under the plain view doctrine, the State must prove: (1) the police officer was lawfully in the viewing area; (2) the officer must discover the evidence inadvertently; and (3) the officer must have probable cause to believe the item is associated with criminal activity. State v. Johnson, 171 N.J. 192, 206-08 (2002); State v. Lane, 393 N.J. Super. 132, 144 (App. Div.), certif. denied, 192 N.J. 600 (2007); State v. Padilla, 321 N.J. Super. 96, 109 (App. Div. 1999), aff'd o.b., 163 N.J. 3 (2000). Here, the trial court found that Meany was "legally inside the hotel room conducting a protective sweep"; he "inadvertently saw part of the gun protruding in plain view when he was conducting the protective sweep to look for other occupants"; and he "had probable cause, based upon the circumstances, to associate [the guns] with criminal activity and with robbery." These findings were based on sufficient credible evidence, and they support the application of the plain view doctrine.

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL JUDGE'S DECISION DENYING DEFENDANT'S MOTION TO SUPPRESS MUST BE REVERSED BECAUSE THE OFFICER WHO CONDUCTED THE SEARCH WAS NOT LAWFULLY IN THE VIEWING AREA TO MAKE A PLAIN-VIEW OBSERVATION AND THE SEIZURE OF ITEMS FROM THE MOTEL ROOM WAS THUS THE DIRECT RESULT OF AN UNLAWFUL AND UNCONSTITUTIONAL WARRANTLESS SEARCH. U.S. CONST., Amends. IV, XIV; N.J. CONST. (1947) Art. I, Par. 7.

A. BECAUSE THE OFFICER'S ENTRY INTO THE MOTEL ROOM WAS UNJUSTIFIED, THE SEIZURE OF THE GUNS CANNOT BE JUSTIFIED AS IN PLAIN VIEW.

B. THE INEVITABLE DISCOVERY DOCTRINE DOES NOT APPLY IN THIS CASE.

POINT II

THE THIRTY-YEAR MANDATORY EXTENDED TERM THAT THE TRIAL COURT IMPOSED ON THE DEFENDANT IS EXCESSIVE AND SHOULD BE REDUCED.

We have considered each of these arguments in light of the record, the briefs, the applicable law, and we are satisfied that neither has sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm with only the following comments.

We must defer to a trial court's factual findings on a motion to suppress when the findings are supported by sufficient credible evidence. State v. Robinson, 200 N.J. 1, 15 (2009). We will reverse only if we are convinced the court's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We also defer to the trial court's credibility determinations. State v. Locurto, 157 N.J. 463, 474 (1999). However, we give no deference to the trial court's legal conclusions, which we review de novo. State v. Harris, 181 N.J. 391, 415 (2004). Based on these standards and our independent examination of the record, we affirm the denial of defendant's suppression motion substantially for the reasons stated by Judge DeStefano in his comprehensive and well-reasoned oral decision on October 28, 2005.

Defendant also challenges his sentence, but he does not dispute that he was eligible for a mandatory extended term for a second Graves Act offense under N.J.S.A. 2C:44-3(d). Consequently, defendant's guilty plea to first-degree robbery exposed him to a potential sentence between twenty years and life. N.J.S.A. 2C:43-7(a)(2). Prior to imposing sentence, the court carefully reviewed the appropriate statutory factors and found aggravating factors three, six, and nine, and no mitigating factors. The court sentenced defendant to an extended thirty-year term for first-degree armed robbery (count seven of Monmouth County Indictment No. 05-11-2538), and imposed concurrent sentences on the remaining courts of that indictment.

The court also sentenced defendant to a four-year consecutive term based on his guilty plea to counts one and two of Monmouth County Indictment No. 05-05-1173, which charged defendant with third-degree conspiracy to commit theft and third-degree theft. Thus, defendant's aggregate sentence was thirty-four years in prison with thirty years subject to an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.

In our view, the court imposed a reasonable sentence based on a proper weighing of the relevant factors. See State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Ghertler, 114 N.J. 383, 388-89 (1989). As a reviewing court, we may modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case. See also State v. Bieniek, 200 N.J. 601, 612 (2010) (instructing appellate courts to refrain from "second-guessing" the discretionary assessments of sentencing judges).

Affirmed.

 

N.J.S.A. 2C:44-1(a)(3) (the risk that defendant will commit another offense); N.J.S.A. 2C:44-1(a)(6) (the extent of defendant's prior criminal record and the seriousness of the offenses); N.J.S.A. 2C:44-1(a)(9) (the need for deterrence).

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A-0118-07T4

August 2, 2010