STATE OF NEW JERSEY v. ANTHONY S. HAMLETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2955-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY S. HAMLETT,

Defendant-Appellant.

_________________________________

December 29, 2011

Submitted December 19, 2011 - Decided

Before Judges Sabatino and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-05-1725.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After pleading guilty, defendant appeals from his conviction for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. The judge imposed a five-year prison term with three years of parole ineligibility. Defendant argues that the judge erred by denying his motion to suppress because the police lacked probable cause to search him. We disagree and affirm.

At about 9:00 p.m. on February 23, 2009, Detective John Gramaglia and Investigator Patricia Taulane conducted a sneak-and-peak operation in a high-drug area. They concealed their location and obtained "an open, unobstructed view of an area." Other officers nearby provided backup assistance.

Gramaglia and Taulane observed three men, including defendant and his brother, standing on the street corner. Both officers testified that they observed defendant lift his jacket and expose a chrome or silver handgun, which was tucked in his pants on his right hip. Although there are some minor discrepancies in the accounts of Gramaglia and Taulane concerning the estimated distance between them and the three men, as well as the color of the grip on the handgun, they do not disagree in their testimony about the basic fact that they saw defendant display a gun.

After defendant lowered the bottom of his shirt to conceal the gun, he and his brother walked up the street. The surveillance continued. Defendant and his brother went into a store briefly and they then walked toward defendant's residence. At that point, Gramaglia and Taulane pulled their unmarked vehicle in front of defendant's premises and, with their weapons drawn, ordered the two men to get on the ground. The brother cooperated but defendant did not comply. At that point, an assisting officer removed a .45 caliber handgun from defendant.

Defendant moved to suppress the gun, and Judge Thomas Brown, Jr., conducted a hearing with three days of testimony. Defendant presented testimony from his brother, who contended that the two of them never crossed the intersection. The brother also contended that the gun was not recovered from defendant but rather from the front steps of the premises.

The judge denied the motion to suppress and concluded that the testimony of both Taulane and Gramaglia was "extremely credible." The judge noted that Gramaglia is a twelve-year veteran of the police department and that Taulane has significant background in firearms as a range instructor. Judge Brown disbelieved the brother's testimony.

On appeal, defendant raises the following point:

THE TRIAL COURT MISTAKENLY CONCLUDED THAT PROBABLE CAUSE EXISTED FOR THE SEARCH OF DEFENDANT'S PERSON.

Our review of denial of a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We defer to the motion judge's factual findings if "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted). The motion judge is in a better position to determine credibility because he can observe the character and demeanor of the witness. State v. Locurto, 157 N.J. 463, 474 (1999); Elders, supra, 192 N.J. at 243-44. As such, we will not disturb his findings unless "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). However, we need not defer to his legal conclusions. State v. Brown, 118 N.J. 595, 604 (1990); State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

After considering the record and briefs, we conclude that defendant s arguments are "without sufficient merit to warrant discussion in a written opinion," Rule 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Brown in his February 19, 2010 oral opinion. We add the following brief comments.

Probable cause is "more than mere suspicion but less than

legal evidence necessary to convict." Sanducci v. City of

Hoboken, 315 N.J. Super. 475, 480-81 (App. Div. 1998) (citing State v. Mark, 46 N.J. 262, 271 (1966)). It is a "well-grounded" suspicion that an offense has been committed. State v. Moore, 181 N.J. 40, 45 (2004). "Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge, and of which they had reasonably trustworthy information, [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-

76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879, 1890 (1949) (alterations in original)(quoting Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555 (1925));

accord Moore, supra, 181 N.J. at 46. In determining whether

probable cause existed, a court should consider the "totality of

the circumstances," Moore, supra, 181 N.J. at 46, including the

police officer's "'common and specialized experience.'" Schneider v. Simonini, 163 N.J. 336, 362 (2000) (quoting State v. Contursi, 44 N.J. 422, 431 (1965)), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001).

There was more than an adequate basis to provide a well-grounded suspicion to search defendant. Defendant's failure to comply with the officers' order to get on the ground elevated the officers' suspicion and justified their right to search him for the gun that they had just observed in his possession. Although there were minor inconsistencies in the testimony of the two officers, they observed defendant display a handgun to

two other individuals. We see no basis to disturb these findings.