STATE OF NEW JERSEY v. JAMAR L. CORBITT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4668-08T44668-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAR L. CORBITT,

Defendant-Appellant.

 
 

Submitted March 17, 2010 - Decided

Before Judges Graves and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-02-0510.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mary Kate Simmons, Designated Counsel, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

After his motion to suppress physical evidence was denied, defendant Jamar L. Corbitt entered guilty pleas to violations of fourth-degree obstructing administration of law or other governmental function, N.J.S.A. 2C:29-1, and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). The sentencing judge imposed an aggregate term of eight years incarceration, with five years of parole ineligibility. Defendant now appeals, arguing the following points:

POINT I: THERE WAS NO LEGITIMATE REASON FOR THE POLICE TO STOP THE DEFENDANT INITIALLY (Not Raised Below).

POINT II: THE WARRANTLESS ENTRY INTO THE HOME WAS IMPROPER AS THE OFFICERS WERE NOT IN "HOT PURSUIT" AND NO EXIGENCY EXISTED. EVIDENCE RESULTING FROM THIS ILLEGAL ENTRY SHOULD HAVE BEEN SUPPRESSED.

POINT III: THE EIGHT-YEAR JAIL SENTENCE WITH PAROLE INELIGIBILITY OF FIVE YEARS FOR POSSESSION OF A WEAPON BY A CONVICTED PERSON IN THE SECOND DEGREE WAS MANIFESTLY EXCESSIVE.

We affirm.

I.

On January 22, 2008, Atlantic City Police Officer James Herbert responded to a call directing him to the vicinity of 227 Rosemont Place, after receiving information over his police radio of an armed person in the area. The suspect was described as a black male wearing dark blue jeans and a black jacket. One week earlier, there was a homicide involving a shooting in front of that same address.

Shortly after Officer Herbert arrived on the scene, he was joined by Police Officer Dean Dooley, along with Dooley's canine partner. Just before Officer Dooley arrived, Officer Herbert exited his patrol vehicle, and began carefully to look for a person matching the description of the armed male. As he was walking along, alertly scanning the nearby buildings and playground, the officer observed defendant, who fit the description obtained from the radio communication. As he approached defendant and made eye contact, Officer Herbert distinctly noticed defendant's facial expression, describing it as "shocked to see an officer's presence." The police officer also observed that defendant "had [placed] his left hand . . . inside his jacket pocket" after coming face to face with the police officer, which indicated to Officer Herbert that defendant may have been concealing a weapon.

Concerned for his safety because he could not see both of defendant's hands, Officer Herbert told defendant to take his hand out of his pocket. Instead of complying with this request, defendant immediately fled, with "his left hand still in his pocket and he was leaning as if there's some or trying to protect something on his left side, almost leaning over to it." Thereupon Officer Herbert ordered defendant to stop, but he failed to comply, impelling a chase.

By this time, Officer Dooley was also on foot in the area. As he heard the other police officer's command for defendant to stop, he observed defendant "run up the stoop, grabbing his left side and then enter 227 Rosemont [Place]." The police officers immediately met outside the residence to discuss their next course of action. As other police officers were arriving, they "started to try and get like a plan together to enter into the residence because a male is supposed to have a handgun and waiting for other officers to arrive on scene so nobody else would exit through the rear."

No more than one minute later, with Officer Herbert in the lead, the dwelling was approached. After a lone woman left the building at the insistence of the officers, the policemen entered the dwelling with their weapons drawn and observed several males in the front room, including defendant. Officer Herbert ordered everyone "to keep their hands where I can see them," but defendant "still had his hand inside his jacket pocket." Eventually, defendant raised both of his hands, and Officer Herbert immediately noticed "the handle of a black . . . handgun inside of his pocket."

Upon observing the handgun, the police officer yelled, "there's a gun present." As this was shouted, defendant's hands dropped and were placed back inside his jacket. Officer Herbert immediately approached defendant and attempted to subdue him for the purpose of retrieving the handgun and ensuring everyone's safety. A struggle ensued; punches were exchanged; and defendant landed on the ground. With the aid of Officer Dooley's canine, defendant was finally apprehended and a loaded handgun was recovered without further incident or injury.

II.

Judge Albert J. Garofolo presided at the suppression motion, observing and listening to the police officers' testimony. The court also had the opportunity to review a stop-action security video recording that showed the activity outside of 227 Rosemont Place on the night in question, which defendant argued was proof that no one ran fleeing into the building as the police officers had testified. Defense counsel argued that the video recording belied the claim of exigency: "after reviewing the video surveillance, . . . there was no one that ran into that building; that apparently the police officers at one point all converged and went in, you see no one fleeing from the police or running into the building. So there's no hot pursuit, no exigent circumstances as described by the officers."

Judge Garofolo commented on the apparent discrepancy between what the police officers reported and what the video recording revealed. He ultimately found the police officers to be credible, based upon their testimony and his observations of their demeanor. The court further found that the stop-action video recording did not "vanquish[] what I otherwise find . . . is the credible or consistent testimony of the police." Thus, the judge determined that: (1) Officer Herbert had reasonable suspicion of defendant's involvement in criminal conduct thereby triggering the right to initiate an investigatory stop of defendant; (2) defendant's flight constituted probable cause to arrest; and (3) the police entry into 227 Rosemont Place without a warrant was lawful, along with the seizure of defendant's handgun. Accordingly, the motion to suppress was denied.

III.

In reviewing a motion to suppress, we are counseled to "uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Alvarez, 238 N.J. Super 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record") (citing State v. Johnson, 42 N.J. 146, 164 (1964)). We will reverse only if convinced that the motion judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244. "In those circumstances solely [we] 'appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Ibid. After applying these well-developed standards, we conclude that there is no reversible error present in this case.

The protective search standard established in Terry v. Ohio, 392 U.S. 1, 88 S. Ct 1868, 20 L. Ed. 2d 889 (1968) is an exception to the warrant requirement that permits a police officer to detain an individual for a brief period, and to pat him down only in order to ensure the officer's safety. The stop is permitted if "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriquez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged in] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).

Here, the evidence that was found credible by the motion judge established that at a minimum, the police had a constitutional right to stop defendant for investigative purposes based on a reasonable suspicion, grounded in specific and articulable facts observed at the scene by the officers. "Reasonable suspicion" means that "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. "The reasonable suspicion" burden is "less than proof . . . by a preponderance of evidence," and "less demanding than that for probable cause," but must be something greater "than an 'inchoate or unparticularized suspicion or hunch.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989); State v. Thomas, 110 N.J. 673, 678 (1988) (a reasonable, articulable suspicion involves something less than the probable cause standard needed to support an arrest). During an investigatory stop, a police officer who believes that the suspect "'may be armed and presently dangerous'" is constitutionally permitted to conduct a pat-down. State v. Williams, 192 N.J. 1, 9 (2007) (quoting Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911).

Police Officer Herbert acted in fidelity with the Constitution and did not deprive defendant of any rights reserved thereunder. The officer was in a dangerous neighborhood; he was looking for an armed male wearing clothing similar to that of defendant; he observed defendant's hand in his jacket; and before he could even commence a frisk, defendant sprinted away. The combination of defendant's dash from the police officer, coupled with his garb, location, and other suspicious conduct cemented the utterly reasonable suspicion that provoked the follow-up investigatory actions.

Moreover, upon defendant's flight, his conduct is measured by the considerations outlined in State v. Crawley, 187 N.J. 440, 451-52 (2006), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006). Defendant ignored the police officer's command, opting instead to flee, giving rise to the probable cause supporting the eventual arrest and search of his person incident thereto. Crawley, supra, 187 N.J. at 451-52; State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006). Regardless of the legality of the initial approach, defendant had an obligation to obey the officer's subsequent command to stop, see Crawley, supra, 187 N.J. at 451-52; State v. Lashinsky, 81 N.J. 1, 11 (1979). Defendant's failure to do so, combined with the subsequent scuffle inside 227 Rosemont Place, rendered the putative taint from any alleged prior unconstitutional action sufficiently attenuated so as to independently justify defendant's arrest and the ensuing seizure of evidence. See Crawley, supra, 187 N.J. at 460.

"A basic principle of Fourth Amendment law is that 'searches and seizures inside a home without a warrant are presumptively unreasonable.'" State v. Henry, 133 N.J. 104, 110 (quoting Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980)), cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993). "The warrant requirement safeguards citizens by placing the determination of probable cause in the hands of a neutral magistrate before an arrest or search is authorized." Ibid. The State bears the burden of demonstrating that a warrantless arrest or search falls within an exception to the warrant requirement. State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed 2d 128 (2004). A warrantless entry into a private residence will be unlawful, requiring suppression of all evidence seized. See State v. Johnson, 193 N.J. 528, 554 (2008) (citing Steagald v. United States, 451 U.S. 204, 216 n6, 101 S. Ct. 1642, 1650, 68 L. Ed. 2d 38, 49-50 (1981)) ("[B]efore entering a third-party's home to execute an arrest warrant, [police] must have either consent, a search warrant, or exigent circumstances."); see also State v. Bell, 388 N.J. Super. 629, 639 (App. Div. 2006) (citing State v. Miller, 342 N.J. Super. 474, 495 (App. Div. 2001)), certif. denied, 189 N.J. 647 (2007).

The State posits that hot pursuit validated the police entry into the building at 227 Rosemont Place. While such pursuit may present exigent circumstances, hot pursuit alone is not a sufficient justification for the warrantless entry into a home. State v. Bolte, 115 N.J. 579, 592, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989). The critical inquiry is whether the suspect poses a danger to the police or the public. Id. at 593. Typically, a danger exists where the police believe the suspect has just committed a serious offense. Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984).

Generally, when there is probable cause to believe a defendant has committed a crime and eluded police apprehension by retreating into his home or the home of another, there is authority for the police who are in immediate or continuous (i.e., "hot") pursuit to follow the fleeing felon, and there is a reasonable expectation that a delay in obtaining a warrant would result in the destruction of evidence. See, e.g., United States v. Santana, 427 U.S. 38, 42-43, n.3, 96 S. Ct. 2406, 2409-10, n.3, 49 L. Ed. 2d 300, 305, n.3 (1976); Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 1645-46, 18 L. Ed. 2d 782, 787 (1967); Bolte, supra, 115 N.J. at 587-92.

Exigent circumstances have been found to exist where "the events leading up to the search were spontaneous and unforeseeable, and posed a potential threat to officer safety." State v. Cooke, 163 N.J. 657, 668 (2000) (citing State v. Alston, 88 N.J. 211, 234 (1981)). In Warden, the Court upheld a warrantless search of a private residence where "[t]he police were informed that an armed robbery had taken place, and that the suspect had entered [the residence] less than five minutes before they reached it." Warden, supra, 387 U.S. at 298, 87 S. Ct. at 1646, 18 L. Ed 2d at 787. In that context, the Court maintained that "[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others." Id. at 298-99, 87 S. Ct. at 1646, 18 L. Ed. 2d at 787.

In this case, notwithstanding the video recording's supposed evidence to the contrary, exigent circumstances were plainly present. The police were in a single, continuous episode with defendant from the moment eye contact with defendant was established up until the struggle inside the building ended. That the police paused for one minute outside of the dwelling before entering in order to reconnoiter and organize their capture plan does not detract from the exigency of the circumstances that were present. We fail to perceive any constitutional infirmity in the conduct of the police on the night in question.

Defendant's final argument on appeal relates to his view that the sentence that he bargained for with the State, and which was imposed by Judge Garofolo, was excessive. We disagree.

We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). When reviewing a judge's sentencing decision, we "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence in those instances where the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence presented, and lastly decide whether application of the guidelines make a particular sentence so clearly unreasonable that it shocks the judicial conscience. State v. Bieniek, 200 N.J. 601, 608 (2010); Roth, supra, 95 N.J. at 364-65; O'Donnell, supra, 117 N.J. at 215.

Here, the weapons possession conviction, pursuant to N.J.S.A. 2C:39-7(b)(1), required the imposition of a minimum term of five years, during which defendant would be ineligible for parole. Indeed, Question #7 on the plea form that defendant signed disclosed the mandatory nature of this minimum term of incarceration. We do not find this parole disqualifier to be in any way surprising, much less shocking.

In imposing the sentence, the judge found aggravating factors N.J.S.A. 2C:44-1(a)(3) (the risk that the defendant will commit another offense), N.J.S.A. 2C:44-1(a)(6) (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been previously convicted) and N.J.S.A. 2C:44-1(a)(9) (the need for deterring the defendant and others from violating the law), and no applicable mitigating factors. We discern no abuse of discretion in defendant's sentence. The judge's findings of aggravating and mitigating factors are amply supported by the evidence, and the sentence imposed is just above the acceptable mid-range for second-degree offenses.

 
Affirmed.

The motion judge portrayed the video as "not a continuous type of thing." It depicted images described by the judge as "snapshots" taken at one or two-second intervals.

(continued)

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A-4668-08T4

April 5, 2010