STATE OF NEW JERSEY v. HASSAN M. CHERRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4321-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HASSAN M. CHERRY,

Defendant-Appellant.

__________________________

Argued May 23, 2011 Decided July 22, 2011

Before Judges Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-07-1238.

Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Watson, of counsel and on the brief).

Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief).

PER CURIAM

Defendant was indicted on numerous drug-related offenses. Following the denial of his motion to suppress, he pled guilty to one count of second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2). He was sentenced to a term of five years imprisonment subject to a two-and-a-half-year parole ineligibility period; the appropriate fines and penalties were imposed and the remaining counts of the indictment were dismissed pursuant to the plea agreement. He now appeals the denial of his motion to suppress. We affirm.

The pertinent evidence adduced at the motion hearing may be summarized as follows. While on patrol on July 11, 2008, South Amboy Police Officer Paul Noble received a dispatch to respond to a residence on Main Street "on a report of an unwanted male." Upon his arrival, he spoke to Holly Horvath, who had called in the complaint. She told Noble "that a black male who gave her the name as Hassan had approached her while she was sitting on her porch, began to threaten her, her daughter and one of her daughter's friends."

As they were speaking, Horvath told Noble that the individual was "across the street on Stevens Avenue" in an SUV; "[s]he pointed in the direction where the vehicle was still located . . . ." Noble observed what appeared to be "an SUV Range Rover type vehicle." The vehicle left the curb and began heading north on Stevens Avenue. Noble entered his vehicle and radioed all other police vehicles in the area. As he approached Stevens Avenue heading north, Noble no longer saw the vehicle. He decided to turn left on Sixth Street on the thought that the vehicle may have turned onto a side street.

As Noble was driving on Sixth Street, he observed the vehicle make a right turn directly in front of him. The officer activated his lights, made a u-turn and pulled up behind the vehicle, which then pulled over. Noble radioed his location and the car's license plate number to police headquarters. Officers Matthew Barcheski and Ted Nycz also arrived on the scene. Noble approached the vehicle and asked the driver, later identified as defendant, for his credentials; he stated that he smelled "a strong odor of marijuana coming from the vehicle."

Noble asked defendant where he had been, and he responded that he "had stopped a few blocks back . . . and asked some girls that were sitting on the porch for some directions." At that point, Noble returned to Horvath's residence to interview her further.

On cross-examination, Noble was confronted with a tape of the 911 dispatch in which he was heard saying to the dispatch officer that "they told me he went up that street."1 When asked why he said that, Noble responded that he was not "aware at the time [he] said [defendant] was going up the street." He reiterated that Horvath "motioned" to him where defendant's vehicle was located. He estimated the distance between Horvath's residence and the location where he stopped defendant's vehicle was three blocks.

Barcheski testified that he also received the 911 dispatch regarding an "unwanted male" at Horvath's residence. While en route there, Noble radioed him "that the suspect vehicle [had] already left." Noble said he had the description of the vehicle and he was "going to be out with a Land Rover."

Barcheski arrived on Sixth Street to back up Noble. Nycz also arrived on the scene. Barcheski asked defendant why his car smelled of marijuana and then advised him of his Miranda2 rights. Nycz conducted a search of the interior of defendant's vehicle; in addition to marijuana, he found a plastic bag containing twenty-two packets of suspected cocaine.

At the conclusion of the testimony the judge rendered a decision from the bench. The judge found that Noble's testimony that he saw and followed defendant's vehicle was credible. Noting that Horvath either "pointed across the street or pointed out the vehicle," the judge found that "[a]s the officer observed the vehicle he saw it pull away, . . . saw the direction it went . . . . He described the . . . vehicle with sufficient specificity . . . [and] when he pulled out to follow the vehicle . . . he recognized [it] when it crossed his path . . . . It is perfectly consistent and . . . appropriate."

On appeal, defendant presents the following contention for our consideration:

POINT I

BECAUSE THE TRIAL COURT'S FINDING THAT THE POLICE OFFICER SAW THE VEHICLE NEAR THE COMPLAINANT'S HOME BEFORE HE IN[I]TIATED THE STOP WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE, THE MOTION TO SUPPRESS WAS IMPROPERLY DENIED. ALTERNATIVELY, THE TRIAL COURT ERRED IN ITS LEGAL CONCLUSION THAT THE POLICE OFFICER AND THE COMPLAINANT SUFFICIENTLY DESCRIBED THE VEHICLE AND ITS OCCUPANT TO PROVIDE REASONABLE SUSPICION FOR THE STOP. U.S. CONST. AMEND IV, XIV, N.J. CONST. ART. 1, PAR. 7.

Having considered these arguments in light of the record and the controlling legal principles, we are satisfied that they are without merit.

The judge's findings supporting his decision are grounded in his credibility determinations. In short, he found credible Noble's testimony that Horvath pointed to defendant's vehicle while it was still at the curb across from her residence; the vehicle pulled away at that point and Noble pursued it. We defer to these credibility-based findings so long as we are satisfied that they "'could reasonably have been reached based on sufficient credible evidence present in the record. This involves consideration of the proofs as a whole[.]'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

The crux of defendant's argument appears to be the discrepancy between Noble's testimony and his statement on the 911 tape. As noted, Noble did not recall making that statement to the 911 dispatch officer. Moreover, he consistently testified at the motion hearing that he had the vehicle in view upon his arrival at Horvath's residence; he then pursued it, lost sight of it temporarily, but saw the vehicle shortly thereafter and stopped it three blocks away from the residence. On this record, we find no merit to defendant's claim that the judge's findings "went so wide of the mark" that "a mistake must have been made." Johnson, supra, 42 N.J. at 162.

We likewise reject defendant's contention that the judge's legal conclusion "cannot stand." While Noble's entire encounter with defendant's vehicle may have been "brief," as defendant asserts, the fact remains that he observed the vehicle which he initially described as a Range Rover, and then, while in pursuit, as a Land Rover. He very shortly thereafter stopped the vehicle three blocks from the location where he first saw it. The 911 dispatch clearly reflects Horvath identifying defendant's vehicle as "an SUV type of thing."

Horvath's 911 call "provide[d] a sufficient quantity of information, such as an adequate description of the vehicle, its location . . . or similar innocent details, so that the officer . . . may be certain that the vehicle stopped is the same as the one identified by the caller." State v. Golotta, 178 N.J. 205, 222 (2003) (internal quotation omitted). Moreover, upon Noble's arrival, defendant's vehicle was still at the scene.

We are satisfied that Noble had adequate grounds to stop defendant's vehicle. "An investigative stop is valid . . . if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). "The standard of reasonable suspicion required to uphold an investigative detention is lower than the standard of probable cause necessary to justify an arrest." State v. Nishina, 175 N.J. 502, 511 (2003). We discern no violation of defendant's constitutional rights.

Affirmed.

1 Based on our review of the recording, the statement is: "They told me he jumped in a vehicle and went up one of the side streets."

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)