STATE OF NEW JERSEY v. JOHN F. CORTEZ-RAMIREZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3964-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN F. CORTEZ-RAMIREZ,

Defendant-Appellant.

________________________________________________________________

June 7, 2011

Submitted May 17, 2011 - Decided

Before Judges Wefing and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-01-0231.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Gina Giordano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John F. Cortez-Ramirez appeals from his August 20, 2009 conviction on one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7(a), for which the judge sentenced him to a two-year term of non-custodial probation, to run concurrent to probationary terms he was currently serving in both New Jersey and New York. On appeal, he raises the following claims:

I. THE OFFICER LACKED THE REASONABLE AND PARTICULARIZED SUSPICION REQUIRED TO LAWFULLY SEIZE THE DEFENDANT, NECESSITATING SUPPRESSION. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. [7].

II. THE MOTION COURT'S DETERMINATION OF CREDIBILITY MUST BE REJECTED, BECAUSE IT WAS BASED, AT LEAST IN PART, UPON THE DEFENDANT'S STATUS AS A DEFENDANT. U.S. CONST., AMEND XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

We affirm.

I.

Defendant filed a motion to suppress. At the May 20, 2009 evidentiary hearing, the State presented the testimony of police officer Peter Insetta who was on routine patrol in North Bergen at 1:00 a.m. on November 1, 2008. In an unmarked police vehicle, he was driving southbound on Bergenline Avenue when he saw defendant standing next to the mail storage box at the post office. Insetta noticed defendant because the post office was closed, and due to two bars nearby, "the area had experienced urinating in public, and public indecency crimes." He noted that "it was late at night, it's not a frequented area, [and] there wasn't pedestrian traffic."

Insetta repositioned the police vehicle to obtain a better view of defendant, and was able to see that defendant was "holding papers in his hand, going through various papers, and there was a white plastic bag at his feet." When defendant became aware that Insetta was observing him, defendant began to drop the papers to the ground. As soon as defendant "began dropping the papers," Insetta activated the emergency lights on his vehicle, and exited the vehicle with a police badge on a chain around his neck. Identifying himself as a police officer, Insetta asked defendant what he was doing. Defendant stated that he had been at the Tapas Bar, and was in the process of walking home. On three separate occasions, defendant began to saunter away but Insetta on each occasion asked him to come back. Insetta described defendant as "nervous, shaky, a little disheveled."

Insetta acknowledged that "dropping papers is [not] a crime," but explained that defendant "flipping through papers" aroused his suspicion because defendant was "directly next to a post office" where mailboxes and unsecured postal vehicles are present. He testified that he was also suspicious because defendant "just dropped his papers on the ground and left his bag behind," leading him to "infer" that the bag "didn't belong to him."

Insetta used his police radio to request that a marked unit be dispatched to the scene. As Officer Ortega arrived in the marked unit, Insetta noticed a black purse and identification cards scattered on the ground slightly to the right of where defendant had been standing. The white plastic bag that Insetta had observed earlier was on the ground next to several identification cards. Among them was a driver's license bearing the name Beatriz Borrero-Cucalon. Borrero-Cucalon, who was in a nearby bar, told police that the items recovered on the ground where defendant had been standing, had all been in her purse in the trunk of her car parked on Bergenline Avenue. She testified at the suppression hearing that she had put the purse in the trunk of her car before going into the bar, but had forgotten to lock the car. Insetta arrested defendant after Borrero-Cucalon identified the objects as hers.

After the arrest, Insetta searched him. In defendant's jacket, Insetta found a bracelet and three items of makeup. Borrero-Cucalon advised Insetta that these items had been in her handbag as well.

Defendant testified that he was leaning on the mailbox waiting for his aunt to arrive home, because he did not have a key. He acknowledged he was "looking at . . . papers" at the time Officer Insetta approached him. He explained that as he was walking toward the house from the Tapas Bar, he saw a bag on the ground and decided to "go through" it because he "was just being nosy." Inside the plastic bag, he found "some paperwork" and a black purse. On the ground he saw "something shiny" that he thought were "some markers." When Officer Insetta arrived, he "got nervous" and dropped the papers to the ground and "pocketed some of the items." When asked how the makeup and a woman's bracelet came to be found in his jacket, defendant responded "I didn't know that was there." When the prosecutor asked him where the makeup and jewelry had come from, he said "when [police] stopped me, I guess I put it in my pocket." He admitted that the items he placed in his pocket "was somebody's stuff [that he] took from the ground." When asked why he would have taken women's makeup, he said "I thought it was markers and stuff. I didn't even know."

On cross-examination, defendant also conceded that he had pled guilty to theft in New Jersey a week before the night in question; and acknowledged that he had "spent some time" in Florida, having been convicted of "minor charges," the number of which he could not remember.

In a written opinion issued on May 21, 2009, the judge upheld the search and seizure. The judge first assessed the credibility of the witnesses, finding Officer Insetta to be "forthright, candid and honest," adding that his testimony was "inherently reasonable," and that "[t]here was no evidence he knew defendant prior to the arrest or that he had a particular axe to grind."

In contrast, the judge found defendant's testimony unreliable and unworthy of belief. The judge found that defendant "contradicted himself" throughout his testimony and gave an account of the night's events that was "patently unreasonable," adding that defendant "has the most to lose and therefore had motivation to shave the truth."

Turning to the validity of the stop, the judge concluded, based upon the totality of the circumstances, that Officer Insetta had a reasonable and articulable suspicion that defendant was engaged in criminal activity "either involving taking mail that did not belong to him or public indecency." The judge credited Officer Insetta's fifteen years of police experience, including experience as a street crimes detective. Consequently, defendant's presence in an isolated area leaning against a mail storage box in the vicinity of a post office, holding white letter-sized papers with a plastic bag at his feet, gave rise to a reasonable suspicion that defendant had removed items from the mail storage box. The judge also concluded that the duration of the stop was not excessive, and that the arrest of defendant after the victim identified the items as hers, was based upon probable cause. Finally, the judge also held that the search of defendant's person after the arrest was permissible as a search incident to a valid arrest. Thus, the judge denied defendant's motion to suppress the evidence recovered from defendant's person, namely, the bracelet and makeup.

II.

We turn to Point I, in which defendant argues that the denial of his motion to suppress should be reversed because Officer Insetta lacked the reasonable and particularized suspicion that was required for a stop. "Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004). "When no warrant is sought, the State has the burden to demonstrate that the search falls within one of the few well-delineated exceptions to the warrant requirement." Ibid. (internal quotations marks and citation omitted).

A search incident to a lawful arrest that is based on probable cause is a long-recognized exception to the warrant requirement. State v. Sims, 75 N.J. 337, 352 (1978). The Court has described the probable cause standard as follows:

The probable cause standard is a well-grounded suspicion that a crime has been or is being committed. Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.

[State v. O'Neal, 190 N.J. 601, 612 (2007) (alterations in original) (citations and internal quotation marks omitted).]

In evaluating the existence of probable cause, the totality of the circumstances must be considered. Ibid.

Applying those principles to the present case, we conclude that police had probable cause to arrest defendant. As we have noted, defendant was found in possession of items that the victim identified as hers, which she said were in her unlocked vehicle. Under those circumstances, police had a well-grounded suspicion that defendant had committed the crime of theft or receiving stolen property. Therefore, the arrest of defendant was valid, and the search incident to that lawful arrest was permissible.

This, however, is not the end of our inquiry, as we must determine whether the initial stop of defendant by Officer Insetta was lawful. Detaining a suspect to ask him further questions is frequently known as a Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). A Terry investigatory stop is valid only "if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity. . . . The suspicion need not rise to the probable cause necessary to justify an arrest." Pineiro, supra, 181 N.J. at 20 (citations and internal quotation marks omitted). The particularized suspicion must be based on the officer's assessment as to the totality of the circumstances, which includes the officer's observations, experience, knowledge and the rational inferences drawn from those facts. State v. Davis, 104 N.J. 490, 504 (1986).

In evaluating the articulable and reasonable suspicion necessary for a stop, judges must remain mindful that "police officers are trained in the prevention and detection of crime. Events which would go unnoticed by a layman ofttimes serve as an indication to the trained eye that something amiss might be taking place or is about to take place." State v. Gray, 59 N.J. 563, 567-68 (1971).

We are satisfied, as was the judge, that at the time Officer Insetta told defendant he was not free to leave, the officer had abundant reasonable and articulable suspicion that defendant was engaged in criminal activity. The combination of defendant standing near a mailbox in the wee hours of the morning holding papers in his hands that he dropped as soon as he saw Officer Insetta's vehicle approaching him, thereby creating the inference that the papers were not his, all provided the officer with an objective articulable and reasonable basis to justify the stop of defendant. We therefore conclude, as did the judge, that the stop of defendant was lawful.

Thus, having concluded that the stop, the arrest, and the search of defendant incident to that arrest were lawful, we reject the claim defendant advances in Point I.

III.

In Point II, defendant addresses the portion of the judge's written opinion labeled "Findings of Credibility" in which the judge stated:

[The defendant] has the most to lose and therefore has motivation to shave the truth.

Defendant argues that this statement is "profoundly disturbing, and in and of itself necessitates reversal." According to defendant, "[t]he statement cannot be construed as anything other than a categorical assertion, by a court of our State, that the value of a criminal defendant's testimony is to be discounted because he is a criminal defendant."

The State in turn argues that appellant has taken this statement "wholly out of context." The State maintains that the judge found defendant's testimony unworthy of belief "because of inconsistencies and not because of his status as a defendant." The State points to the judge's conclusion that defendant "contradicted himself on a matter of importance, namely, whether or not he had put any of the alleged victim's property into his jacket pocket when the police came." While we agree that the judge's remark was infelicitous, we agree with the State that the portion of the judge's findings to which defendant now objects played a small, and virtually inconsequential, role in the judge's evaluation of defendant's credibility. As we have noted, the judge rejected defendant's account of his activity because it was inherently unworthy of belief. Thus, to the extent that there was any error in the judge's "most to lose" comment, any such error was harmless. We thus reject the claim defendant advances in Point II.