STATE OF NEW JERSEY v. TYRONE JOHNSON, JR


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6332-08T4




STATE OF NEW JERSEY,


Plaintiff-Respondent,


v.


TYRONE JOHNSON, JR.,


Defendant-Appellant.


________________________________________________________________

January 5, 2011


Submitted December 7, 2010 - Decided


Before Judges Carchman and Messano.


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-03-0471 and 07-03-0475.


Yvonne Smith Segars, Public Defender, attorney for appellant (Lora B. Glick, Designated Counsel, of counsel and on the brief).


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


PER CURIAM


Following the denial of his motion to suppress evidence, defendant Tyrone Johnson, Jr. entered a plea of guilty to one count of second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(4), as well as second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Consistent with the plea agreement, the trial judge sentenced defendant to an aggregate term of seven years imprisonment with a five-year period of parole ineligibility with the sentences to run concurrent to an unrelated sentence then being served by defendant. Defendant appeals from the denial of the motion to suppress as well as the sentence. We affirm.

These are the relevant facts adduced at the motion to suppress. During the evening hours of January 9, 2007, Detective Michael Dammann of the Carteret Police Department, received a phone call from a confidential informant stating that a tall black man, wearing blue jeans and a tan coat, was in possession of a gun and was selling narcotics in the Sam Sica Homes public housing facility. Dammann and Detective/Sergeant Thomas Stroka of the Special Investigations Unit, Narcotics Unit, responded to the scene within minutes1 and observed two individuals standing in front of the F building, neither of whom matched the informant's description. However, recognizing that they were in a "high crime narcotics location that [the Carteret Police have] been investigating," the detectives parked their vehicle and investigated on foot. By the time the detectives arrived at the front of the F building, the two individuals they initially spotted were no longer present. The detectives proceeded to walk towards an alleyway that separates the F and E buildings. Although the detectives were walking together, they were not side-by-side; Stroka "was hugging the E building on the sidewalk" and Dammann "was against the fence line . . . of the sidewalk." In this position, both detectives heard a voice yell out, "Yo, who's that?" Dammann looked back and for the first time observed an individual who fit the informant's description of the individual with the weapon and narcotics. Despite Dammann's observation, both detectives, who were in plainclothes and not uniformed, continued walking because they "[didn't] want to give [their] presence there."

At this point, the detectives split up. Dammann continued along the sidewalk towards a church, and Stroka turned right into the church parking lot hiding behind a car. Stroka heard someone yell, for a second time, "[Y]o, yo, who's that?" Immediately thereafter, Stroka witnessed "a tall male running . . . with this tan coat and jeans" after Dammann. Although Dammann had previously observed the subject, this was the first time that Stroka spotted an individual who fit the description of the tip.

Concerned for his partner's safety, Stroka "went running to the back [of the church], the same direction where this subject was following Detective Dammann." According to Stroka:

When I came running around the corner, the subject reversed direction, and we actually physically collided.


. . . .


It was a blind collision. As soon as we turned the corner, we just ran into each other.


. . . .


After the two of us collided, [the suspect] stumbled back a little bit because . . . when I hit him, his left . . . part of his body happened to turn, and simultaneously he threw an object, a black object, behind him that landed on the grass . . . .



Stroka was not immediately aware of the object's identity. Instead, his main concern was the suspect, as he "got him right to the ground" by "grabb[ing] him and . . . [asking], please get to the ground, and he complied."

As soon as Stroka took the suspect to the ground, Dammann appeared. Stroka then turned around and determined that a handgun had been discarded. The suspect was handcuffed and placed under arrest. Dammann escorted the defendant to the patrol vehicle, and Stroka surveyed the immediate area with a flashlight for additional objects that might have been thrown. Only a nine millimeter handgun was recovered.

Defendant was transported to headquarters by two other officers. During the drive, one of the officers noticed defendant "fidgeting" and then kick an object under the driver's seat. When they arrived at headquarters, the officers discovered "a plastic bag containing additional forty-two knotted plastic bags of suspected cocaine."

On appeal, defendant raises the following issues:

POINT I

THE DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE CONDUCT OF THE POLICE OFFICERS AMOUNTED TO AN UNLAWFUL DE FACTO ARREST OF DEFENDANT THAT WAS NOT PREDICATED UPON PROBABLE CAUSE.


The police detention of defendant amounted to a de facto arrest that exceeded an appropriate level of minimal intrusion and was insufficiently supported by information supplied in the informant's tip.

Page 12


The informant's tip did not have the requisite indicia of reliability or veracity to create a reasonable articulable suspicion of criminal activity which would justify a Terry stop.


POINT II


THE EVIDENCE OF COCAINE FOUND IN THE POLICE CAR THAT TRANSPORTED DEFENDANT TO HEADQUARTERS AFTER HIS ARREST WAS THE PRODUCT OF DEFENDANT'S UNLAWFUL SEIZURE AND, THEREFORE, IT SHOULD BE SUPPRESSED.


POINT III


DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND IT SHOULD BE REDUCED.


Since the issue of credibility weighed heavily in the motion judge's analysis of the testimony, we set forth our standard of review. "'An appellate court reviewing a motion to suppress 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. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Instead, "an appellate court must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 336-37 (quoting Johnson, supra, 42 N.J. at 161). However, if the trial court's findings are clearly mistaken "and the interests of justice demand intervention and correction," the reviewing court should review "the record as if it were deciding the matter at inception and make its own findings and conclusions." Johnson, supra, 42 N.J. at 162. Nevertheless, "[i]t is a well-established principle of appellate review that a reviewing court is neither bound by, nor required to defer to, the legal conclusions of a trial or intermediate appellate court." State v. Gandhi, 201 N.J. 161, 176 (2010) (citing Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).

We reject defendant's argument that the officers acted improperly in defendant's apprehension. The motion judge accepted Stroka's testimony that defendant discarded the handgun during an accidental collision not a "seizure" under the Fourth Amendment with Stroka. The detectives neither handcuffed nor arrested defendant until they determined that the abandoned black object thrown was a handgun. That discovery provided sufficient probable cause to arrest defendant and justified the officers' actions.

According to Stroka, he accidentally collided with defendant. The trial judge found Stroka to be "very credible" and determined that an accidental collision is "exactly what happened[:]"

This was a situation where Detective Stroka obviously was concerned . . . that perhaps his partner may get jumped who doesn't realize that [defendant] is behind him. And [Stroka] . . . is now protective of his partner. So he runs after the person who just ran into that alley where his partner went.


Fortuitously, that person turned around. And where do they meet? Right there . . . .


I find that testimony very credible actually. I think that that has the ring of truth. And there are little things that were testified to that really enhanced the credibility of that version. And a lot of it came in through the [videotaped statement].


Stroka's comments in the questioning and almost the disbelief that the officers had when they were questioning the defendant when he was telling them I don't know what you're talking about. It's not so much what they said, but their reaction to that as if what are you talking about? You were there. In other words, their demeanor, the officers' demeanor, particular Stroka's demeanor on [the videotape] when they were talking to the defendant about how this occurred. It's almost as if they were somewhat caught flatfooted or dumbfounded that the defendant was . . . not acknowledging certain facts. And that reaction, I think, lends a lot of credibility to [the detectives' version].


. . . .


Interestingly, during the [videotape] . . . the officers are obviously, and Officer Dammann particularly was unnerved obviously by the fact that he was being pursued in this fashion. And that's really what they wanted to know. You know . . . why were you coming after me? . . . [Defendant] never answered, except finally he says you should know the answer to that or words to that effect. I think that's very compelling at least as a tacit admission. . . .


So that version of the facts as to how [the collision] occurred I find to be very credible. I think that's factually what happened. They collided . . . . That's exactly what happened, there was a collision.


We defer to the motion judge's factual finding as to the accidental collision. See Mann, supra, 203 N.J. at 336-38.

Because the collision was accidental, the motion judge appropriately determined that "[t]here was no seizure in terms of the Fourth Amendment." A seizure is a coercive interaction between a law enforcement official and an individual that "'in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" State v. Stovall, 170 N.J. 346, 355 (2002) (alteration in original) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed.2d 497, 509 (1980)).

Furthermore, the judge properly concluded that the gun was abandoned. "For purposes of search-and-seizure analysis, a defendant abandons property 'when he voluntarily discards, leaves behind, or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search.'" State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006) (quoting State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981), affirmed, 89 N.J. 378 (1982)). Again, according to Stroka, defendant "simultaneously . . . threw an object, a black object, behind him than landed on the grass" during the collision, a factual scenario accepted by the judge and worthy of our deference. Mann, supra, 203 N.J. at 336-38. Similarly, we accept the judge's legal conclusion that defendant abandoned the discarded property. See State v. Hughes, 296 N.J. Super 291, 296 (App. Div. 1997) (holding that a defendant on a bicycle abandoned a cocaine-filled container when he threw it against the curb after observing an approaching police car), certif. denied, 149 N.J. 410 (1997); Farinich, supra, 179 N.J. Super. at 6 (noting that abandonment was found where defendant dropped his suitcase and started to run away after being approached by police).

Finally, Stroka's act of "grabb[ing] [defendant] and [taking] him right to the ground" is legally insignificant. Even accepting defendant's theory of an improper arrest, defendant abandoned the handgun during the initial accidental collision, not as a product of the restraint. There was no error here.

Defendant further asserts that "the police investigation leading to defendant's arrest was predicated on an informant's tip" and "the vagueness and inaccuracies contained in the tip weigh against a finding that it provided a sufficient basis for the [detectives] to form a reasonable articulable suspicion to justify an investigatory stop." The tip here triggered an investigation; it did not provide the basis for a Terry2 stop.

The accidental nature of the collision between defendant and Stroka precludes the finding of a "seizure." Absent an investigatory stop, defendant's reliance on the constitutional mandates of Terry is misplaced. Critically important, however, is that the tip involved information about an individual with a gun. That shifts the landscape and provides a lawful basis for investigation of an individual possibly in possession of a weapon. See State v. Padilla, 321 N.J. Super. 96, 107 (App. Div. 1999) (observing that "the police had the right, if not the obligation, to proceed to the scene in order to investigate the report that a person with a gun was [present]"); State v. Stanton, 265 N.J. Super. 383, 384-86 (App. Div. 1993) (finding that "the officers would have been derelict in their duty" if they did not investigate a tip that an individual was selling narcotics from a motel and was in possession of guns).

Our conclusion that the police acted properly with regard to the weapon and the arrest of defendant renders moot any argument regarding the cocaine found in the transporting patrol vehicle. Moreover, our conclusion regarding abandonment of the weapon applies with equal force to the cocaine that was left in the patrol vehicle.

Finally, Defendant asserts that "[a]lthough [his] sentence was within the bound of his plea agreement, the judge improperly considered certain aggravating factors and failed to consider certain mitigating factors such that the sentence imposed was manifestly excessive and should be reduced." We disagree.

State v. Roth, 95 N.J. 334 (1984), "set[s] forth the structure and standards [of] . . . appellate power to review and correct sentences." State v. Jarbath, 114 N.J. 394, 401 (1989). In Roth, the Court summarized appellate review of sentencing as follows:

In sum, then, appellate review of a sentencing decision calls for us to determine, first, whether the correct sentencing guidelines, or in this case, presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.


[Roth, supra, 95 N.J. at 365-66.]

"An appellate court is not to substitute its assessment of aggravating and mitigating factors for that of the trial court" unless the trial court's findings were "unsupported by the record . . . ." State v. Bieniek, 200 N.J. 601, 608 (2010). Additionally, "the appellate courts are adjured not to exercise their own sentencing discretion or to substitute their own judgment but to determine only whether or not the sentencing court was 'clearly unreasonable.'" Jarbath, supra, 114 N.J. at 401.

Substantial evidence exists to support the judge's finding of aggravating factors N.J.S.A. 2C:44-1(a)(3) and (a)(9) for both counts. See Roth, supra, 95 N.J. at 365-66.

The record supports a finding of aggravating factor N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant will commit another offense." Specifically, the court found that "defendant had one known juvenile adjudication for aggravated sexual assault" and "one prior indictable conviction for robbery which resulted from a juvenile waiver." Based on these prior offenses, N.J.S.A. 2C:44-1(a)(3) was appropriately found as an aggravating factor. See State v. Gallagher, 286 N.J. Super. 1, 21 (App. Div. 1995) (upholding a finding of aggravating factor (a)(3) when "there was a substantial risk of future recidivism as evidenced in part by defendant's lengthy history of criminal activity").

As to aggravating factor N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the defendant and others from violating the law," the record also supports its application. The trial judge stated that "defendant discarded [forty-two] bags of cocaine" with a total weight "in excess of one half ounce." These findings are analogous to our decision in State v. Varona, 242 N.J. Super. 474 (App. Div. 1990), where we commented on the application of N.J.S.A. 2C:44-1(a)(9):

Finally, there is ample evidential support for the trial court's finding of a need for deterrence. Such is recognized as an aggravating factor, especially where a person has been convicted of a drug offense.


In addition, the amount of cocaine found in defendant's possession, and the potential profit to be derived from its distribution, justify the trial judge's finding that the need for deterrence is an aggravating factor pertinent to defendant's sentencing.


[Id. at 492.]


Defendant also argues that the court failed to consider mitigating factor N.J.S.A. 2C:44-1(b)(2), "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm." The failure to find that this mitigating factor applies is consistent with observations that we have made under similar circumstances recognizing that "[d]istribution of cocaine can be readily perceived to constitute conduct which causes and threatens serious harm." State v. Tarver, 272 N.J. Super. 414, 434-35 (App. Div. 1994). The sentence was proper.

Affirmed.

1 Stroka originally testified that the information was received either on January 8 or even January 7, 2008. However, Dammann clarified that the information was in fact received on January 9, 2008.

2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968)