STATE OF NEW JERSEY v. SHAFEEQ CHAPPELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3956-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAFEEQ CHAPPELL,

Defendant-Appellant.

_______________________________

December 10, 2012

Submitted October 30, 2012 - Decided

Before Judges Messano and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-09-2140.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Jack R. Martin, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following the denial of pre-trial motions to disclose a surveillance location and suppress evidence, defendant Shafeeq Chappell entered into a plea agreement and pled guilty to second-degree possession of a handgun by a convicted felon in violation of N.J.S.A. 2C:39-7, and the State agreed to dismiss two other charges set forth in its indictment. Defendant preserved his right to appeal the trial court's denial of his pre-trial motions.

On appeal, defendant challenges the trial judge's decisions on these pre-trial motions and also argues the sentence imposed was excessive. Specifically he states:

POINT I.

THE TRIAL COURT ERRED IN DENYING [DEFENDANT]'S MOTION FOR DISCLOSURE OF THE SURVEILLANCE LOCATION.

POINT II.

THE LOWER COURT ERRED IN DENYING [DEFENDANT]'S MOTION TO SUPPRESS.

POINT III.

THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON [DEFENDANT] (NOT RAISED BELOW).

We have considered these arguments in light of the record and applicable law. We affirm.

Following indictment, defendant moved to compel disclosure of the location used by an Atlantic City Police Department (ACPD) surveillance and arrest team on assignment in Atlantic City's marina district, commonly known as the "Back Maryland" area, whose observations formed the State's evidence supporting probable cause to stop defendant. The State filed a cross- motion for a protective order precluding disclosure. During the in camera hearing, Timothy Rose, a plain-clothes detective on assignment for the ACPD Vice Unit testified regarding the State's use of the surveillance location in this and other criminal investigations, conducted weekly in the "Back Maryland" area, known for drug trafficking and violence, including shootings. Arrests have resulted from information gathered by police using the location for observation. At the time of the in camera hearing in this matter, evidence was being gathered in an on-going investigation using the same location. Detective Rose opined that were the location revealed it would pose a safety concern for police and residents; further, the location, which was better suited than others in the area, could no longer be used.

The judge found the State had met its burden and failure to disclose would "not hinder[]" the defense in "finding out everything about that location except the exact address[.]" The judge denied defendant's motion to compel disclosure and granted the State's motion, ordering the location remain privileged. Thereafter, a hearing on defendant's motion to suppress was held. We summarize the State's evidence.

On July 9, 2008, Detective Rose was conducting surveillance, stationed alone at the location, which was at an elevation in excess of 100 feet. Detective Rose used 10 x 50 power binoculars, which magnified his view by a factor of 10, making an object that was one-hundred yards away look as if it were ten yards away. At approximately 7:30 p.m., while it was still daylight, Detective Rose observed a black GMC Sierra pickup truck pull into the parking lot of a residential apartment complex located on Magellan Avenue, approximately 300 feet from his location.1 Earlier that evening, Detective Rose had observed a drug transaction, which resulted in an arrest, take place in the same parking lot.

Using the binoculars, Detective Rose watched as a man, whom he had observed "loitering in the area[,]" and later identified as defendant, walked from a porch toward the truck that had entered the parking lot. As he approached the vehicle, defendant appeared to be "looking around, checking the area[,]" behavior which, based on Detective Rose's "training and experience watching hand-to-hand [drug transactions]," he believed was "indicative of someone looking to see if there is law enforcement in that area or anybody else around." After speaking briefly with the driver, defendant climbed into the passenger seat of the truck.

Through the vehicle's rear window, Detective Rose saw defendant reach across his body with his right hand to produce a small, quarter-sized "white object . . . wrapped in clear plastic[.]" Detective Rose explained, "it was the white object . . . I observed that piqued my attention [and] made me believe it was drugs, and the secondary notion was that it was in plastic because of the mannerisms of [defendant's] hand in holding it" between his palm and thumb "in a close manner to keep it from falling out of his hand." Detective Rose believed the color and texture of the object appeared to be crack cocaine. He saw the driver lean toward the center of the cab to take the white object from defendant, and then hand defendant money, which Detective Rose watched him count. Moments later the truck exited the parking lot onto Magellan Avenue and proceeded south on Pennsylvania Avenue. Believing he had just witnessed a hand-to-hand drug transaction, Detective Rose notified "the arrest teams" to stop the vehicle, giving its description and a description of its occupants.

ACPD Detectives Kevin Fair and Mark Benjamin, also on assignment with the Vice Unit's surveillance and arrest team, were patrolling the "Back Maryland" area near the intersection of Maryland and Baltic Avenue when they heard Detective Rose's radio transmission. Moments later they observed a GMC Sierra pickup truck near the intersection of Kentucky and Adriatic Avenue, so they initiated a vehicle stop.

Detective Benjamin approached the passenger side of the truck and immediately recognized defendant, who was sitting in the passenger's seat. Upon seeing defendant, Detective Benjamin heightened his concern for safety because of defendant's "reputation with handguns" and prior investigations when defendant was a "target or suspect in other shootings in the city[.]" Due to this heightened safety concern, Detective Benjamin "[i]mmediatly" commanded defendant to produce his hands, and once they were in plain view ordered defendant out of the vehicle. As defendant rose to exit the passenger seat, Detective Benjamin observed a large "bulge under his shirt" in the area of his waistband. Believing the bulge to be "a weapon of some sort[,]" he performed a Terry2 pat-down. On feeling the item he "immediately recognize[d]" was a handgun, Detective Benjamin shouted "gun" while grabbing defendant's hand and then placed him in handcuffs. He lifted defendant's shirt and revealed a black and silver semi-automatic handgun tucked into the waistband of his pants. Detective Fair was standing on the driver's side of the vehicle. He heard Detective Benjamin yell "gun[,]" then watched him remove the weapon from defendant's person and place him under arrest.

Once in custody, police conducted a peripheral search of defendant's person and pockets to ensure he carried no other weapons; the search revealed no further contraband. Police transported defendant to headquarters where he was Mirandized.3 A subsequent search of the GMC Sierra revealed no drugs or substantial sums of money. Also, no drugs were found in a pat-down search of the Sierra's driver.

The trial judge considered the totality of the circumstances, particularly Detective Rose's experience and the "high drug" incidence of the area, and determined the police had established a reasonable articulable suspicion justifying the investigative vehicle stop. The judge concluded the handgun seized from defendant's person was in plain view and denied defendant's motion to suppress.

Defendant subsequently pled guilty to count three of the indictment, possession of a handgun by certain persons, N.J.S.A. 2C:39-7, pursuant to a negotiated plea agreement. Defendant was sentenced to an eight-year term of imprisonment, five years of which must be served prior to consideration for parole, pursuant to N.J.S.A. 2C:39-7(b). The terms of the plea agreement preserved defendant's right to appeal from the denial of his motions to compel disclosure of the surveillance location and suppress the handgun evidence, which we now consider.

We first address defendant's claim of error in upholding the State's asserted privilege of the surveillance location. "[A] defendant seeking to learn the location of a police surveillance post should ordinarily show that he or she needs the evidence to conduct his or her defense and that there are no adequate alternative means of getting at the same point." State v. Williams, 239 N.J. Super. 620, 631 (App. Div. 1990). Defendant makes this claim, stating he presented a "substantial showing of need to defeat the State's proper assertion of the privilege." State v. Garcia, 131 N.J.67, 81 (1993); State v. Ribalta, 277 N.J. Super.277, 288 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). Defendant's argument acknowledges the State proved the public need for concealment; however, he suggests if Detective Rose's observations were discredited, the subsequent stop was unlawful and the evidence obtained must be suppressed. Accordingly, he asserts disclosure of the observation post to effectively challenge Detective Rose's credibility outweighs the State's need to preserve the secrecy of the address. We are not persuaded.

"Trial courts must consider possible disclosure of surveillance locations on a case-by-case basis." Garcia, supra, 131 N.J. at 80. See also N.J.S.A. 2A:84A-27 and N.J.R.E. 515 ("No person shall disclose official information . . . if the judge finds that disclosure . . . will be harmful to the interests of the public."). In deciding whether to require disclosure, a court must balance the negative effect that such disclosure may have on the public good against the defendant's need for the information to prepare his or her defense. Garcia, supra, 131 N.J. at 80. See also State v. Zenquis, 131 N.J. 84, 88 (1993) ("[T]he court should balance the defendant's need for that information with the public's interest in nondisclosure.").

The trial court first considers whether the State's privilege applies to protect the surveillance location during an in camera hearing. Thereafter, defendant is given the opportunity to present why disclosing is necessary for a fair determination of his case. Garcia, supra, 131 N.J. at 80.

When reviewing a defendant's motion to compel disclosure, we have instructed trial courts to "consider the 'crime charged, the possible defenses, the possible significance of the privileged information, and other relevant factors.'" Ribalta, supra, 277 N.J. Super.at 288 (quoting Garcia, supra, 131 N.J. at 80). On appeal, a trial court's determination not to disclose a surveillance location will not be disturbed absent a showing that there was an abuse of discretion. Zenquis, supra, 131 N.J. at 88.

Detective Rose's testimony during the motion hearing to compel disclosure demonstrated the surveillance location provided an optimum vantage point and had allowed police to gather evidence to "make a number of arrests." Further he explained the location was unique and no other would be as effective to police the Back Maryland area. Because of its advantages, the location was frequently used, remained in use, and was the key surveillance point for an on-going investigation. Finally, the safety of police and civilians would be compromised were the address disclosed. We have reviewed Detective Rose's testimony from the in camera hearing which provides additional detail on each of the issues. Nevertheless, the facts presented during the suppression motion hearing are sufficient to meet the State's burden and support the trial judge's finding the State properly proved the release of the information would be harmful to the public by demonstrating "a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property." Garcia, supra, 131 N.J. at 78.

On the other hand, defendant did not present a substantial showing of need to defeat the State's privilege. Ibid. Defendant was provided the distance -- both length and height -- of the location from the parking lot where the truck was observed, information regarding whether obstructions existed, and the details of the equipment utilized by Detective Rose to aid his observations. Using this information, defendant conducted a rigorous cross-examination, questioning the accuracy of Detective Rose's assertions. Defendant posed the possibility that a different truck model appeared similar to the claimed GMC Sierra involved in the transaction. Further, he suggested the detail expressed by Detective Rose was impossible to see through the small rear window of the cab. Finally, defendant noted the police recovered neither drugs nor money from defendant and the driver when stopped.

The trial judge considered the totality of the evidence and concluded nothing would be added by full disclosure of the surveillance address. This conclusion is amply supported by the facts of record, given the weight of the testimonial evidence supporting nondisclosure and lack of demonstrated prejudice allowing defendant to marshal evidence to support his defense. We find no abuse of discretion in denying defendant's motion for disclosure.

Defendant also argues the judge erred in denying his motion to suppress the gun recovered by Detective Benjamin, who stopped the vehicle, ordered defendant to exit, and conducted a Terry frisk based on Detective Rose's information. We reject this argument and conclude Detective Rose had reasonable articulable suspicion he had observed criminal activity justifying Detective Benjamin's stop of the vehicle, which included a frisk of a visible bulge at defendant's waistband, to assure police safety.

Our courts have firmly established an investigatory vehicle stop is constitutionally justified when police have an "articulable and reasonable suspicion" the law has been violated. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Locurto, 157 N.J. 463, 470 (1999). Whether an investigatory stop is reasonable requires a fact-sensitive inquiry obligating courts to examine the totality of the circumstances. State v. Pineiro, 181 N.J. 13, 22 (2004) (citations omitted). The police must demonstrate "'a particularized and objective basis'" for suspecting the detainee of criminal activity. Ibid. (quoting State v. Stovall, 170 N.J. 346, 356 (2002)). The trial court may take into account "[a]n officer's experience and knowledge . . . [when] applying the totality of the circumstances test." Ibid. (citing State v. Davis, 104 N.J. 490, 504 (1986)). Finally, the State may meet the "articulable and reasonable suspicion" standard without proving the suspected criminal activity actually occurred. Locurto, supra, 157 N.J. at 470.

In this matter, the judge credited Detective Rose's testimony, considered in light of his training, knowledge, and experience, which he found supported a drug transaction had occurred. See State v. Arthur, 149 N.J. 1, 8 (1997) (finding "consideration must be given 'to the specific reasonable inferences which [an officer] is entitled to draw from the facts in light of his experience'" (citations omitted)). In determining the facts supporting a reasonable suspicion defendant had engaged in a hand-to-hand drug transaction, the judge cited Detective Rose's description of defendant's conduct prior to entering the truck and the detailed events between defendant and the driver while seated in the vehicle; the prevalence of drug trafficking in the area, see State v. Richards, 351 N.J. Super. 289, 307 (App. Div. 2002) (discussing facts relevant to establishing reasonable suspicion), including the parking lot then under observation; and the additional details, including the general description of the driver and the passenger, the vehicle's direction of travel, its make, model and license plate numbers, all of which Detectives Benjamin and Fair confirmed matched the description of the radio transmission.

Defendant's claim that Detective Rose's testimony was "incredible" and not worthy of belief is insufficient to reject the trial judge's specific credibility determinations were grounded in facts of record. Rather, the trial judge properly found the police reasonably exercised their obligation to investigate suspicious behavior. State v. Dilley, 49 N.J. 460, 468 (1967). We conclude the State satisfied its burden and we find no constitutional impediment to the vehicle stop.

Once a vehicle is lawfully detained, police may order the vehicle's occupants to alight without pointing to specific facts showing the occupants are armed or dangerous. State v. Smith, 134 N.J. 599, 618 (1994). Police need only show "some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner[.]" Ibid.

As Detective Benjamin approached the vehicle, he immediately recognized defendant, who was previously involved in events such as shootings and use of illicit weapons. This knowledge that defendant could be armed, coupled with the report of a drug transaction, justified the need to assure police safety and supported the request for defendant to exit the vehicle.

"[T]o justify a pat-down of an occupant once alighted from a vehicle, specific, articulable facts must demonstrate that a 'reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" Id. at 619 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). The officer "need not be absolutely certain" an individual is armed to effectuate a weapons frisk; the inquiry is whether the frisk was reasonable given "the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. Following our review of this record, we conclude the State's evidence clearly satisfied this requirement.

Detective Benjamin, in addition to recognizing the danger posed by the high-crime "Back Maryland" area and defendant's "reputation" for involvement with handguns and as a "target or suspect in other shootings in the city," noted the plainly visible bulge protruding from defendant's waistband was suggestive of a weapon, which further heightened his suspicion of criminal activity and the need for extreme caution. See Richards, supra, 351 N.J. Super. at 307 (finding relevant factors in determining the reasonableness of perceived heightened danger include visibility of "any bulges or suspicious conduct . . . suggest[ing] defendant was hostile or dangerous[,]" officer knowledge of "defendant from prior criminal encounters[,]" and neighborhood reputation for "high-crime" and "guns"). Given the facts available, we agree with the trial judge that a reasonably prudent officer making such an observation would be warranted in concluding his safety or the safety of other officers was in danger, permitting a frisk of defendant for weapons. See State v. Wanczyk, 201 N.J. Super. 258, 264 (App. Div. 1985) ("Once defendant exited the car and the police observed the bulge in the left sleeve of defendant's jacket, the officers unquestionably had the right to conduct a frisk of the defendant under the principles pronounced in Terry v. Ohio, supra[, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909]." We conclude no constitutional violation occurred.

Defendant also challenges as excessive the base eight-year term of his sentence. He maintains the trial court "misapplied its discretion by finding aggravating factors unsupported by credible evidence and by failing to find applicable mitigating factors." Defendant argues the judge failed to provide a qualitative assessment of the applicable factors. We disagree.

Our review of a sentence must be "careful and vigorous"; however, we may not substitute our judgment for that of the sentencing judge. State v. Kirk, 145 N.J. 159, 175 (1996). The test is not whether this court would have imposed a different sentence, but rather "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989) (citation omitted). A trial judge is given "wide discretion" to impose a sentence provided it is within the statutory framework, and the reviewing court must give that decision "great deference[.]" State v. Dalziel, 182 N.J. 494, 500-01 (2005). In our review we must make sure that the statutory sentencing guidelines were followed, that the aggravating and mitigating factors found below are based upon "'competent credible evidence in the record[,]'" and that the sentence is not "'clearly unreasonable so as to shock the judicial conscience.'" Id. at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

We also note that our Supreme Court has recently fortified the authority of sentencing judges, State v. Bieniek, 200 N.J. 601 (2010), and has reminded our court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division:

Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of

appellate review of a criminal sentence.

[Id. at 612.]

Here, the trial judge, in imposing the sentence recommended in the negotiated plea agreement, specifically applied aggravating factors three (risk defendant will commit another offense), six (extent of defendant's prior criminal record and seriousness of the offense for which defendant was convicted), and nine (need for deterrence). N.J.S.A. 2C:44-1a(3), (6) and (9). The judge found no applicable mitigating factors. He identified defendant's adult criminal history, beginning in 2003, including four convictions for indictable offenses, among which was a prior weapons offense, along with municipal court convictions, and multiple violations of both probation and parole. Further, defendant had numerous juvenile adjudications.

Defendant asserts the court neglected to apply two mitigating factors: (1) "defendant's conduct neither caused nor threatened serious harm[,]" N.J.S.A. 2C:44-1b(1); and (2) "defendant did not contemplate his conduct would cause or threaten serious harm[,]" N.J.S.A. 2C:44-1b(2). The suggestion that defendant's action of concealing possession of an illegal loaded firearm did not contemplate or intend to cause harm because the gun was not actually used in a crime is outrageous and lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

In this matter, we do not discern either a misapplication of sentencing principles or an inappropriate exercise of discretion. The sentencing court explicated the reasons for imposing the term of incarceration, and we are not free to lightly disregard them. The aggravating factors applied were properly supported by the facts; no mitigating factors were applied and the sentence imposed did not violate the sentencing guidelines. Furthermore, the sentence is not unduly harsh in light of the circumstances of the crime for which defendant pled guilty. We discern no abuse of discretion.

A

1 During the suppression hearing it was agreed that the year of the truck was not known.

2 See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968) (articulating the standard for a constitutionally permissive pat down or "frisk").

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