STATE OF NEW JERSEY v. JARROD JENNINGS, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JARROD JENNINGS, JR.,

Defendant-Appellant.

___________________________________________________

March 19, 2014

Submitted February 11, 2014 Decided

Before Judges Messano and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-09-1527.

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

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jarrod Jennings, Jr., appeals from the judgment of conviction entered after his guilty pleas to third-degree burglary, N.J.S.A. 2C:18-2, and second-degree eluding, N.J.S.A. 2C:29-2(b). The judge sentenced defendant in accordance with the plea agreement to an aggregate term of seven years imprisonment with a three-year period of parole ineligibility.1

Before us, defendant raises the following point for our consideration:

ABSENT PROBABLE CAUSE, THE ARREST OF DEFENDANT WAS UNCONSTITUTIONAL. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. I, PARA. 7

We have considered this argument in light of the record and applicable legal standards. We affirm.

Initially, defendant acknowledged that his pre-trial motion was not a traditional motion to suppress because no physical evidence was ever seized. See Rule 3:5-7(a) ("[A] person claiming to be aggrieved by an unlawful search and seizure and having reasonable grounds to believe that the evidence obtained may be used against him or her in a penal proceeding, may apply to the Superior Court . . . to suppress the evidence.") (emphasis added). Defense counsel contended defendant's "stop and detention was not supported by substantial evidence," and the motion sought "the suppression of that arrest and his ultimate detention . . . ." The prosecutor objected, noting that probable cause for defendant's arrest was no longer in issue since the grand jury returned an indictment. Without ruling on the objection, the judge decided to hear the testimony of the State's witnesses.

Elmwood Park police officer Michael Mulligan testified that shortly after 3:00 a.m. on February 6, 2010, he responded to a radio report of a vehicle stolen from the Valero gas station on Route 46. Mulligan spoke to the Mohammed Abdellatie, the driver of a Chrysler minivan owned by his wife. Abdellatie stated that two individuals took his vehicle as he went into the station's "mini mart." He provided Mulligan with a description of both men and the minivan, as well as its license plate number.

Mulligan spotted the minivan, followed it and activated his overhead lights and siren. The vehicle did not stop but rather continued to travel at a high rate of speed approaching eighty miles per hour. Mulligan followed the minivan as it continued into neighboring Paterson, at times driving on the wrong side of the road and illegally passing other cars. The minivan drove down a dead end street and crashed into the side of a parked "trailer."

Mulligan saw the driver, who fit one of the descriptions given by Abdelatie, exit the car and run between the trailer and a chain link fence topped with barbed wire. Mulligan could hear the "fence starting to make noise." At that point, Mulligan returned to the minivan and took the passenger into custody. Mulligan asked as to the identity of the driver. The passenger, Kenneth Burke, told Mulligan the driver's name was "Jarrod," who lived in either Lodi or Washington Heights.

By now, several other police units, including some from the Paterson police department, had arrived at the scene. Mulligan supplied them with a description of the driver, specifically, an African-American "male, [with] corn rows . . . [and] wearing a black jacket" with an "eagle with rhinestones." Within five minutes, Mulligan was advised by radio that a Paterson unit had detained someone a few blocks away who fit that description. He proceeded to that location and identified defendant as the driver of the minivan.2 Defendant was wearing clothing that matched Mulligan's description and his hands "were cut up pretty bad."

Defendant denied that his name was Jarrod or that he was driving the minivan. He told Mulligan he was riding his bike and looking for a store to buy fried chicken. While being processed at the police station, defendant told police his name was "Jarrod Jennings, Junior," and that he lived in Lodi.

Patrolman Todd Pearl of the Paterson police department also testified. He arrived at the scene of the minivan's crash and spoke to Mulligan, who already had Burke in custody. Pearl drove around the immediate area and noticed "a male sort of hiding behind one of the vehicles" in an auto body repair shop, approximately three blocks from the crash scene. The male, who fit the description and was wearing a black leather jacket with an ornate design, stood up and started to walk away. Pearl ordered him to stop and detained him until Mulligan arrived and identified defendant. Pearl did not recall if the man had any injuries to his hands. He also testified that defendant told him he was "walking around." Pearl further stated that there was a bicycle in the area.

After considering this evidence, the judge denied defendant's motion, stating "there's sufficient evidence corroborating that this was the same individual who was in the vehicle . . . ."3

In a footnote in his brief, defendant contends that his motion was actually one to dismiss the indictment based upon an arrest that was unsupported by probable cause. He urges us to reverse his convictions and dismiss the charges. The State argues that the arrest was supported by probable cause, and, even if it was not, the proper remedy for an illegal arrest is the suppression of any physical evidence that was seized as a result. It contends that dismissal of the indictment is not appropriate under these circumstances.

Initially, we agree "that an illegal arrest taints only the evidence that is the product of the arrest; it does not necessarily taint an entire prosecution." State v. Mulcahy, 107 N.J. 467, 482 (1987) (citing State v. Sugar, 100 N.J. 214 (1985)); and see State v. Egles, 308 N.J. Super. 124, 131 (App. Div. 1998) (same).

Second, and more importantly, by pleading guilty defendant waived any challenge to his arrest or the indictment returned upon the grand jury's determination of probable cause. It is well established that a defendant's guilty plea acts as a waiver to any challenge he may now assert to the sufficiency of the indictment. See, e.g., State v. Robinson, 224 N.J. Super.495, 498 (App. Div. 1988) ("'Generally, a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea.'"); and seeState v. Knight, 183 N.J.449, 470 (2005) ("Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.") (quoting State v. Crawley, 149 N.J.310, 316 (1997)).

As the Court explained in Knight, supra, 183 N.J.at 471, there are generally only three exceptions to the waiver rule, none of which apply here. The first exception is provided expressly by Rule3:5-7, which permits a defendant to challenge on appeal an unlawful search and seizure of physical evidence after entering a guilty plea. Ibid. The second, expressly permitted by Rule3:28(g), permits an appeal after the entry of a guilty plea from an order denying entry into the pre-trial intervention program. Ibid.

Lastly, if a defendant enters a conditional guilty plea pursuant to Rule3:9-3(f), he may appeal those issues expressly preserved. Ibid. In State v. Marolda, 394 N.J. Super.430, 434 (App. Div.), certif. denied, 192 N.J.482 (2007), one of the defendant's arguments on appeal was that the motion judge erred in failing to dismiss the indictment in its entirety. We refused to consider the issue, noting that "[b]ecause [the] defendant did not preserve the issue[] . . . by entry of a conditional guilty plea, he has waived his right to relief . . . ." Id.at 435-36. Defendant did not enter a conditional guilty plea in this case.

While the above alone would compel us to affirm defendant's conviction, we exercise our discretion and consider the merits of defendant's appeal. SeeState v. J.M., 182 N.J.402, 410 (2005) (citing State v. Gonzalez, 254 N.J. Super.300, 304 (App. Div. 1992)) (recognizing that despite the failure to enter a conditional plea, review is appropriate in limited situations). We conclude that defendant's challenge as to his detention or arrest lacks sufficient merit to warrant extensive discussion in a written opinion. R.2:11-3(e)(2). We add only the following.

An investigatory stop or a Terry4 stop is a well-recognized exception to the warrant requirement. State v. Mann, 203 N.J. 328, 338 (2010). "Such a stop 'is valid 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.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). "[A] reviewing court must assess whether 'the facts available to the officer at the moment of the seizure . . . warrant a man of reasonable caution in the belief that the action taken was appropriate.'" Ibid. (quoting Pineiro, supra, 181 N.J. at 21). "Because the 'determination of reasonable [and articulable] suspicion is fact-sensitive,' a careful review of the totality of the circumstances surrounding each case is required." Ibid. (quoting Pineiro, supra, 181 N.J. at 22).

Pearl's initial detention was based upon a reasonable and articulable suspicion of defendant's involvement in criminal activity. He detained defendant at approximately 4:00 a.m. in a desolate area of Paterson. Defendant was originally seen crouched behind a vehicle in an obvious attempt to avoid detection. Pearl's detention was brief, lasting only a few minutes until Mulligan arrived and positively identified defendant as the individual who was exited the driver's side of the minivan after it crashed into the trailer.

At that point, there was more than sufficient probable cause to arrest defendant. "For probable cause to arrest, there must be probable cause to believe that a crime has been committed and that the person sought to be arrested committed the offense." State v. Chippero, 201 N.J. 14, 28 (2008) (internal citations omitted). Here, probable cause to arrest defendant existed based upon the totality of circumstances then known to the officers. State v. Dangerfield, 171 N.J. 446, 456 (2002).

1 Defendant also pled guilty to a burglary that was the subject of a second indictment. He was sentenced to a concurrent three-year term on that charge.

2 Defendant apparently chose not to attend the proceedings, but the judge permitted Mulligan, who had seen defendant at court proceedings the prior day, to identify him as the driver of the minivan.

3 After entering his guilty plea and represented by successor counsel, defendant moved to withdraw his guilty plea. It is unclear whether the motion was directed to both indictments. In any event, the motion was denied, and that decision is not challenged on appeal.

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