STATE OF NEW JERSEY v. KELVIN L. FLOWERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3259-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KELVIN L. FLOWERS,

Defendant-Appellant.

________________________________

August 2, 2011

Submitted July 26, 2011 - Decided

Before Judges Sabatino and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0384.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Shawn P. Barnes, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kelvin L. Flowers, who was convicted in 2009 of armed robbery and other offenses, appeals from the denial of his motion to suppress evidence, the denial of his motion to withdraw his guilty plea, and the sentence the court imposed. For the reasons that follow, we affirm.

I.

Although the case was not tried, the police reports and the testimony at the suppression hearing reveal the following pertinent facts. In essence, this case arises from defendant's participation in an armed robbery of five victims in Linden with two other men, co-defendants Sharif Boone and Yusef Evans.

On January 27, 2008, Linden police dispatch received a report of a just-completed armed robbery, involving three males who were in what was described as a "dark colored SUV." The report further stated that the SUV had just been in an accident, and would be expected to have fresh damage on its rear. The dispatcher relayed this information over the police radio between approximately 10:15 p.m. and 10:30 p.m.

A Linden police officer on patrol at the time, Paul Zack, heard the dispatch and drove to the vicinity of the reported robbery. Officer Zack soon observed an SUV fitting that description heading at a high rate of speed toward Routes 1 and 9. Zack was able to catch up with the SUV and observed "fresh damage" to the right rear of the vehicle.

Officer Zack continued to follow the SUV, initially observing two occupants inside the vehicle. A third occupant in the back seat then appeared in the rear window, looked at Zack's police cruiser, and then attempted to conceal himself again. This observation further aroused Zack's suspicion that the SUV was the one involved in the robbery. Zack called for backup assistance and then pulled the SUV over at Clinton Avenue and East Edgar Road.

When backup assistance arrived, Zack approached the SUV and ordered the three occupants to place their hands outside of the windows where he could see them. Zack approached the driver's side window, asked the driver for credentials, and then observed the front seat passenger attempting to hide something under the seat with his foot. Zack ordered him to remain still.

His suspicions heightened by the passenger's actions, Zack walked around the vehicle to the front passenger side, and shone his flashlight into the vehicle. He observed an out-of-state driver's license, two cellular phones, and the butt of what appeared to be a handgun sticking out from underneath the seat.

Having seen these items in the SUV, Officer Zack then ordered the three occupants out of the vehicle. He secured each of them in handcuffs, with the assistance of the other officers. After the three suspects were removed from the vehicle, Zack continued to peer through the windows with the illumination of his flashlight. While doing so, he observed the wooden handle of a second handgun on the back seat floor board.

Officer Zack then entered the SUV and removed the two guns. They turned out to be a wood-grip revolver and a plastic toy gun. Zack also removed from the floor of the vehicle two cellular phones, a knife, and identification cards later determined to belong to the robbery victims. The photographs on the driver's licenses were of white males, while the occupants of the vehicle were black males. Zack testified that all of these items were in plain view, either before or once he entered the vehicle to seize the guns, and that he did not need to search for them.

At the time Zack entered the vehicle, defendant, who had been one of the passengers, the driver, and the other former occupant of the SUV were all seated on a nearby curb and handcuffed. When asked why he seized the guns from the vehicle, Zack testified that he seized them for "safety," out of concern that they could get "into the hands of anyone that would, you know, be possibly [sic] have another incident." He also testified that there was heavy vehicular traffic on Routes 1 and 9 on the night of the arrests, as well as pedestrian traffic. After the guns and the other seized items were removed from the SUV, the police impounded it.

Defendant, Boone, and Evans were subsequently indicted by a Union County grand jury. In particular, defendant was charged with five counts of first-degree armed robbery, N.J.S.A. 2C:15-1, corresponding to each of the five victims who had been robbed (counts one through five); one count of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count six); one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count seven); one count of fourth-degree possession of hollow-nosed bullets, N.J.S.A. 2C:39-3f (count eight); and one count of unlawful possession of an imitation firearm, N.J.S.A. 2C:39-4e (count nine).

Defendant moved to suppress the items the police had seized from the SUV without a warrant. The trial court considered that motion at an evidentiary hearing, at which Officer Zack was the sole witness called to testify. Upon considering that testimony and the arguments of counsel, the trial court denied the suppression motion. The court specifically found Officer Zack to be "a credible and believable witness," and, in particular, adopted Zack's description of how he was able to observe the two guns by shining his flashlight into the SUV. Although the State had argued that the search was justified under both the plain view and the automobile exceptions to the warrant requirement, the court upheld the search under the automobile exception and found it unnecessary to reach the plain view doctrine.

Defendant thereafter entered a conditional plea to the open indictment, preserving his right to appeal the suppression ruling. Although the plea was not fully negotiated, the State did not oppose a reduction of defendant's sentencing exposure to the second-degree range, and also did not oppose concurrent treatment of the offenses. The trial court accepted defendant's plea, based upon his factual representations at the plea hearing admitting his willing participation in the armed robbery and his constructive possession of the revolver with Boone.1

Before his sentencing on November 20, 2009, defendant moved to withdraw his guilty plea. In support of his motion, defendant tendered a certification in which he claimed that he had not intended to rob the victims and that he "just happened to be outside of the vehicle with Mr. Boone when he changed the intent of the situation from that of purchasing marijuana to that of robbing the individuals." The trial court denied the motion in nearly all respects, applying the factors governing the withdrawal of guilty pleas under State v. Slater, 198 N.J. 145 (2009). In particular, the court described the evidence of defendant's guilt as "overwhelming," and found that he had presented no "colorable claim of innocence," one of the key factors under Slater. However, the court did find the factual basis from the plea hearing inadequate to support defendant's guilt on counts six and eight, and amended his disposition accordingly.

The court sentenced defendant as a second-degree offender on the robbery counts, and the two remaining weapons counts were merged. It imposed concurrent terms of eight years,2 subject to an eighty-five percent parole disqualifier under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.

This appeal followed, in which defendant presents these arguments for our consideration:

POINT I

AS DEFENDANTS WERE OUT OF THE SUV, IN HANDCUFFS, GUARDED BY POLICE OFFICERS, WHEN THE VEHICLE WAS SEARCHED, AND THERE WERE NO EXIGENT CIRCUMSTANCES AND THE SEARCH WAS IN VIOLATION OF DEFENDANT'S FOURTH AMENDMENT RIGHTS AS WELL AS THE LAW OF STATE V. DUNLAP[,] ALL ITEMS SEIZED MUST BE SUPPRESSED.

POINT II

THE DENIAL OF DEFENDANT'S PRE-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION.

POINT III

THE IMPOSITION OF A NINE YEAR TERM OF IMPRISONMENT, SUBJECT TO THE 85% NERA PAROLE BAR, WAS EXCESSIVE.

II.

A.

In his first point on appeal, defendant contends that the judge erred in denying his motion to suppress evidence because, he urges, the automobile exception does not apply inasmuch as there was no exigency justifying the search of the SUV without a warrant. We need not address this argument under our State's construct of the automobile exception now set forth in State v. Pena-Flores, 198 N.J. 6, 28 (2009)3, because the warrantless seizure of the guns and other contraband from the SUV was independently justified under the plain view doctrine.

Under the Fourth Amendment of the federal Bill of Rights and under Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981). Here, the "recognized exception" that justifies the police seizure of the guns and the other contraband inside the SUV is the plain view doctrine.

We note at the outset of our plain view analysis that several aspects of defendant's encounter with the police are unchallenged. Defendant does not dispute that, in light of the fresh report of a robbery involving three offenders and a damaged SUV, Officer Zack had a right to stop their vehicle. Nor does defendant contest the propriety of the officer's order that he and the two other men get out of the SUV. The critical question is whether, once the occupants were secured outside of the vehicle, the officer could lawfully enter the SUV and take the guns and the other items he observed inside. Applying the plain view doctrine, the answer to that question is yes.

It is well settled that a warrant is not required to perform a search when a police officer is (1) lawfully present in the viewing area, (2) the officer inadvertently discovers the evidence in plain view, and (3) it is "immediately apparent" to the police officer that the "items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002); see also State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). The use of a flashlight to illuminate a motor vehicle's interior is permissible under the plain view doctrine. State v. Nishina, 175 N.J. 502, 517-18 (2003).

Each of these elements of the plain view doctrine are satisfied here. Officer Zack was lawfully present in the viewing area both when he initially spotted the two protruding guns while standing outside of the SUV and thereafter when he justifiably went inside the SUV to retrieve those guns and saw other contraband in plain view on the vehicle floor. Second, there is no proof that the officer had intended to find those particular items, and his discovery of them was manifestly inadvertent. Third, it was immediately apparent to the officer that the items were evidence of the recent robbery and subject to seizure. Defendant offers no persuasive argument to the contrary.

In applying these plain view factors to the record, we accept the trial court's determination that Officer Zack's narrative of his actions at the scene was credible. A reviewing court "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." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted); see also State v. Locurto, 157 N.J. 463, 474 (1999)). The officer's description of what he observed in plain view inside the SUV is logical and consistent, and we will not second-guess the trial court's finding that he was credible. There is no evidence that Officer Zack went beyond the confines of what was in plain view and found the subject items by opening containers or closed compartments. It is of no moment that the trial court did not extend its legal analysis to the plain view exception, as the facts supporting that exception are credible and essentially unrefuted.

The State's reliance on the plain view exception here is bolstered by State v. Mai, 202 N.J. 12 (2010). In Mai, police responded to a report of an armed man, and upon arrival, noticed a double-parked vehicle with five men inside and another six men milling around outside of the vehicle. Id. at 16. The officers approached and opened the door of the van, before ordering a passenger, who matched the description they had received of the armed man, to get out of the vehicle. Ibid. The passenger had been seated on the floor of the van, and when he left the vehicle, the officer noticed a gun on the floor of the van where the passenger had been sitting. Id. at 16-17. The officer "took the gun for safety reasons." Id. at 17. Based on these circumstances, the Supreme Court held that the seizure of the weapon from the floor of the van was proper under the plain view doctrine. Id. at 25; see also State v. Frankel, 179 N.J. 586, 610 (2004) (explaining that a police officer "could not ignore the evidence of [illegal] activity that he observed in plain view").

The denial of the motion to suppress is accordingly affirmed.

B.

In his second point on appeal, defendant contends that the trial court erred in failing to allow him to withdraw his plea. We disagree and affirm the denial of defendant's motion. We do so substantially for the cogent reasons expressed by Judge James C. Heimlich in his bench ruling of November 20, 2009.

As Judge Heimlich recognized, the withdrawal motion was governed by the standards of Slater, supra, 198 N.J. at 150. Under Slater, when a defendant enters a guilty plea and subsequently wishes to withdraw the plea, the court must consider (1) whether the defendant asserts a colorable claim of innocence; (2) the nature and strength of the reasons the defendant wishes to withdraw the plea; (3) the existence of a plea bargain; and (4) whether withdrawal might result in prejudice to the state or an unfair advantage to the accused. Ibid.

A defendant's claim of innocence must be more than a mere bald assertion. A defendant must instead present specific, credible facts supporting his claim. Id. at 158; see also State v. Huntley, 129 N.J. Super. 13, 18 (1974), certif. denied, 66 N.J. 312 (1974). Courts should not conduct a "mini-trial" on the withdrawal motion, but should merely inquire whether a defendant's assertion of innocence rests on particular, plausible facts. Slater, supra, 198 N.J. at 159.

Here, the trial court justifiably found that defendant had failed to establish a "colorable claim of innocence" warranting the withdrawal of his guilty plea. Defendant claimed in his motion that he had no idea that his confederate intended to rob the victims rather than purchase marijuana from them. However, that claim of innocence is contradicted by the testimony he gave at the time of the plea hearing, in which he admitted that he knew that his co-defendant Boone had a gun, that he carried a toy gun himself, and that he knew that Boone intended to rob the victims. As such, the judge was not required to credit the contradictory certification in support of the motion to withdraw the plea. Without a colorable claim of innocence, there was no basis to permit withdrawal of the plea. This assessment makes it unnecessary for us to comment on the other three factors under Slater, and we instead incorporate by reference Judge Heimlich's thoughtful Slater analysis. The motion was properly denied.

C.

Lastly, defendant contends that his sentence was excessive, mainly because the mid-range for a second-degree offence is seven years and he was sentenced to more than that, i.e., eight years. We need not say much about this contention of excessiveness. This armed robbery involved multiple victims, and defendant's prior criminal record included two prior felony convictions and three violations of probation. The trial court found that aggravating factors, three, six, and nine under N.J.S.A. 2C:44-1(a) applied, and there were no mitigating factors under N.J.S.A. 2C:44-1(b). Indeed, the judge noted at sentencing that had defendant gone to trial and been convicted by a jury of the first-degree offenses to which he pled, the judge would have imposed a twenty-eight-year term.

We detect no manifest injustice nor any abuse of discretion in the sentence that the court imposed. Guided by our limited scope of review, we affirm the trial court's disposition. See State v. Bieniek, 200 N.J. 601, 612 (2010) (noting that the sentencing discretion of trial judges should be immune from second-guessing on appeal); State v. Roth, 95 N.J. 334, 364 (1984) (instructing that a sentence should be modified only if it "shocks the judicial conscience").

Affirmed.

1 Apparently Evans was alleged by the State to be the getaway driver of the SUV. According to defendant's brief, the charges against Evans were eventually dismissed.

2 Although the sentencing transcript refers to the concurrent terms imposed as nine-year sentences, the judgment of conviction clearly reflects concurrent terms of eight, not nine, years, and the State's appellate brief likewise describes the sentences as eight-year concurrent terms.

3 Defendant's brief on appeal does not cite Pena-Flores, although it is presently the seminal case from our Supreme Court on the automobile exception. Our resolution of the appeal on the plain view exception makes it unnecessary for us to address defendant's arguments under State v. Dunlap, 185 N.J. 543 (2006), a decision that hinged upon other exceptions to the warrant requirement.