STATE OF NEW JERSEY v. THOMAS J. ROSSMAN

NOT FOR PUBLICATION WITHOUT THE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.

THOMAS J. ROSSMAN,

Defendant-Appellant.

________________________________________________________________

May 21, 2014

Submitted October 16, 2013 Decided

Before Judges Fisher, Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 10-08-0559.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and his sentence. He raises the following arguments in his appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE SEIZED BY POLICE.

POINT II

THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION TO AMEND THE INDICTMENT AGAINST DEFENDANT AFTER THE JURY PANEL HAD BEEN SWORN.

POINT III

IMPROPER HEARSAY PERMITTED AT TRIAL VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM (PLAIN ERROR).

POINT IV

OTHER CRIMES AND WRONGS EVIDENCE PLACED BEFORE THE JURY BELOW AT LEAST WARRANTED A LIMITING INSTRUCTION TO ENSURE THAT THE JURY DID NOT USE THIS PROSECUTION TESTIMONY FOR THE IMPROPER PROPENSITY PURPOSE, FURTHER WARRANTING GRANTING OF A NEW TRIAL (PLAIN ERROR).

POINT V

THE TRIAL COURT ERRED AND VIOLATED DEFENDANT'S RIGHT TO RAISE REASONABLE DOUBT BEFORE THE JURY BY INSTRUCTING THE JURY TO DISREGARD PART OF DEFENSE COUNSEL'S SUMMATION.

POINT VI

DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

After reviewing these arguments in light of the record and applicable legal principles, we are satisfied that none have merit.

I

Defendant filed a motion to suppress the .32 caliber semiautomatic handgun that was seized from him on the ground that the police lacked probable cause for his arrest.

Officer Spencer Smith of the Wildwood Police Department testified both at the suppression hearing and at trial to the events leading up to defendant's arrest. Smith was on patrol on July 9, 2010, when he received a report from dispatch at 5:44 a.m. regarding a 9-1-1 call. The caller had reported witnessing an argument between two men at the intersection of Roberts and Arctic Avenues in Wildwood. The caller said one of the men, described as a "white male with a beard and a ponytail, wearing a black shirt and long shorts with the color yellow on them," was carrying a handgun in the front of his waistband and had begun heading south on Arctic Avenue.

After driving through the intersection of Arctic and Roberts Avenues and seeing no sign of an argument or the person described by the 9-1-1 caller, Smith proceeded south on Arctic and eventually made a U-turn to head back north. Within three to four minutes after receiving the report from dispatch, Smith observed defendant leaving a residence on Arctic Avenue. At the suppression hearing, Smith testified that he recognized defendant from prior arrests. He stated that defendant's clothing matched the clothing description given by dispatch "perfectly" and that his hair matched the physical description as well.

Smith testified that upon seeing defendant, he left his patrol car, drew his weapon, and ordered defendant to "put his hands up and stop." When defendant put his hands in the air, his shirt rose to reveal the grip of a handgun, which was in defendant's right front waistband. Smith ordered defendant to drop to his knees approximately five times, but defendant continued walking toward Smith. Smith also testified that defendant appeared to be under the influence of a controlled dangerous substance. Eventually, another patrolman arrived and placed defendant on the ground. The other patrolman removed a .32 caliber handgun, which was unloaded, from defendant's waistband. Defendant was handcuffed and transported to police headquarters for processing.

After defendant's arrest, Smith contacted the dispatcher to obtain the phone number of the 9-1-1 caller, who had identified himself as Tim Johnson. When Smith called the phone number dispatch provided, however, he found that the number did not belong to Tim Johnson.

At trial, the State presented testimony that no record existed that defendant had: a New Jersey firearms registration or identification card, or a permit to carry or purchase a handgun, or that he had ever applied for any of these credentials. In addition, the State presented testimony that the weapon seized was operable. Defendant did not testify or present any witnesses on his behalf.

The jury found defendant guilty as charged. The trial judge sentenced him to five years imprisonment with a three-year period of parole ineligibility.

II

We first address defendant's challenge to the denial of his suppression motion. In reviewing a trial court's ruling on a motion to suppress, "an appellate court . . . 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. Elders, 192 N.J. 224, 243 (2007) (citation omitted). This court "should not disturb the trial court's findings merely because 'it 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' in a close case." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Issues of law, however, are reviewed de novo. See State v. Gandhi, 201 N.J. 161, 176 (2010).

Defendant contends that he was arrested when Smith drew his weapon and that Smith lacked probable cause at that point. His argument is thus rooted in the legal principles applicable if an arrest occurred at that point, a premise with which we disagree. In our view, Smith subjected defendant to a "temporary street detention," which does not require probable cause, but is satisfied by the lower standard of "reasonable suspicion." State v. Stovall, 170 N.J. 346, 356-57 (2002); State v. Tucker, 136 N.J. 158, 167 (1994). This standard requires "'some minimal level of objective justification for making the stop.'" State v. Nishina, 175 N.J. 502, 511 (2003) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989)).

The source of information Smith relied upon in stopping defendant was a 9-1-1 caller, who was later shown to have given a false name. Thus, although Smith did not know it at the time, the information was provided by an anonymous informant. Ordinarily, an anonymous tip, standing alone, will be insufficient to satisfy the reasonable suspicion standard because "the veracity of persons supplying anonymous tips is 'by hypothesis largely unknown, and unknowable.'" Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 237, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)); State v. Rodriguez, 172 N.J. 117, 127 (2002). To justify action based on such information, police must obtain "independent corroboration . . . of significant aspects of the informer's predictions[.]" Id. at 127-28 (quoting White, supra, 496 U.S. at 332, 110 S. Ct. at 2417, 110 L. Ed. 2d at 310). Ultimately, the analysis turns on the totality of the circumstances. Id. at 128.

In State v. Golotta, 178 N.J. 205 (2003), the Court considered whether a 9-1-1 caller's report that the defendant was driving erratically was sufficient to justify a traffic stop. The Court recognized that, although a caller to the 9-1-1 system may not provide identification information, the caller "'place[d] his anonymity at risk' by virtue of using the 9-1-1 system" because such calls can be traced. Id. at 225 (quoting Florida v. J.L., 529 U.S. 266, 276, 120 S. Ct. 1375, 1381, 146 L. Ed. 2d 254, 263-64 (2000) (Kennedy, J., concurring)). After reviewing cases from other jurisdictions, the Court agreed that a "reduced . . . degree of corroboration [was] necessary to uphold a stop of a motorist suspected of erratic driving" in the circumstances before it. Id. at 218. The Court's rationale was threefold:

First, by its nature, a call placed and processed via the 9-1-1 system carries enhanced reliability not found in other contexts. Second, the conduct at issue is the temporary stop of a motor vehicle based on reasonable suspicion, not the more intrusive search of its contents or arrest of its driver, which would be governed by different rules. Third, an intoxicated or erratic driver poses a significant risk of death or injury to himself and to the public and, as such, that factor is substantial when evaluating the reasonableness of the stop itself.

[Ibid.]

As the Court noted, its analysis of the stop was "essentially . . . governed by the same case law used to evaluate a stop based on suspected criminal or quasi-criminal activity." Id. at 213. It follows that the Court's rationale in adopting a reduced degree of corroboration applies here. Like the facts in Golotta, the anonymous information came by way of the 9-1-1 system and the officer's responsive conduct was to stop defendant temporarily. He did not search defendant based on the information received from the caller. And, although the mere mention of a handgun in an anonymous tip is insufficient to justify a stop and frisk, J.L., supra, 529 U.S. at 268, 120 S. Ct. at 1377, 146 L. Ed. 2d at 258, it cannot be denied that unlawfully concealing a weapon poses a public-safety risk. See State v. Edmonds, 211 N.J. 117, 137 (2012) (Although the identity of an anonymous 9-1-1 caller was unverifiable and the source of the caller's knowledge was unknown, "the police had a duty to investigate an allegation of domestic violence involving a gun."); Golotta, supra, 178 N.J. at 226.

In Golotta, the Court described its decision as follows:

Although we analyze this case in terms of "reduced" or "less rigorous" corroboration than might apply in other settings, our decision can just as readily be described as doing no more than accepting a level of corroboration commensurate with the level of threat implicated by the tip at issue. In other words, we do not in this case reduce the degree of corroboration necessary to ensure the tip's reliability. Rather, we consider the citizen caller to have sufficient inherent reliability given the nature and content of the 9-1-1 communication so that an independent corroborative effort, beyond confirmation of the vehicle's description, is not constitutionally required.

[Id. at 227.]

Here, the 9-1-1 caller stated his report was based on his observation of defendant and another man engaged in an argument. Unlike the description given in J.L. of a young black male wearing a plaid shirt standing at a particular bus stop, the description here was not limited to a suspect's race and shirt, but included a description of facial hair and a ponytail, and more detailed information about attire, "a black shirt and long shorts with the color yellow on them."1 The caller also gave the location and direction the person was walking. The totality of this description was such that it was unlikely to apply to an indeterminate number of males the officer might encounter at the location. And, when Smith came across defendant, he was in the vicinity described and matched all the details provided by the 9-1-1 caller.

We are therefore satisfied that the 9-1-1 call had sufficient indicia of reliability and was adequately corroborated to justify the investigative stop. Once defendant raised his hands, the handgun was visible, tucked in his waistband as the 9-1-1 caller described, providing the officer with probable cause to arrest him. The suppression motion was, therefore, properly denied.

III

Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.

The indictment was amended to correct the serial number of the handgun seized from defendant. This amendment was authorized by Rule 3:7-4, which permits an amendment "to correct an error . . . provided the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby . . . ." Contrary to the argument advanced in Point II, the correction of a serial number did not deprive defendant of his rights to a grand jury indictment or a fair trial, and did not prejudice him in his defense.

Defendant raises two arguments as plain error. First, he argues that the court erred in permitting Smith to testify as to the specific information provided to him in the call from the dispatcher because such details were inadmissible hearsay statements. Next, defendant argues that it was error to allow Smith to testify that he failed to comply with Smith's orders to drop to his knees. Both of these issues would have been matters within the discretion of the trial court if properly raised. See Bd. of Educ. v. Zoning Bd. of Adjustment, 409 N.J. Super. 389, 430 (App. Div. 2009). Neither alleged error "is of such a nature as to have been clearly capable of producing an unjust result" on the record here. R. 2:10-2.

Next, defendant argues that the court erred in instructing the jury to disregard part of defense counsel's summation. Defendant was charged under N.J.S.A. 2C:39-5(b), with knowingly possessing a handgun "without first having obtained a permit to carry the same as provided in N.J.S. 2C:58-4." As noted, the State presented evidence that defendant had neither obtained nor attempted to obtain a permit pursuant to N.J.S.A. 2C:58-4, which sets forth the application process for obtaining a permit to carry a handgun in New Jersey.

In his closing argument, defense counsel suggested this testimony was inadequate to prove guilt because the State's witness could not testify as to whether defendant might hold a handgun permit in another jurisdiction. The State objected, and the court instructed the jury to disregard defense counsel's suggestions that defendant might hold a handgun permit in another jurisdiction, stating this was "a New Jersey action."

In Herring v. New York, the United States Supreme Court noted that the trial court has "broad discretion" to "ensure that argument does not stray unduly from the mark." 422 U.S. 853, 862, 95 S. Ct. 2550, 2555, 45 L. Ed. 2d 593, 600 (1975). The suggestion that the State had failed to prove defendant's guilt in the absence of proof that he did not have a valid permit anywhere was improper as it was based upon an entirely erroneous statement of the law. Not only did the trial court have the discretion to act, it was obliged to ensure that the jury would not be misled by an inaccurate statement of the law.

Finally, defendant contends his sentence was excessive. This argument rings hollow in light of the fact that the sentence imposed was the minimum allowable under N.J.S.A. 2C:43-6. Moreover, the court made specific findings as to the applicable aggravating and mitigating factors that were supported by the record.

Affirmed.

1 The facts in J.L. are further distinguishable because upon arriving at the location, the police in J.L. did not observe a handgun or any unusual movements before frisking the defendant and seizing a gun from his pocket. 529 U.S. at 268, 270, 120 S. Ct. at 1377, 1378, 146 L. Ed. 2d at 258, 260.