STATE OF NEW JERSEY v. JOHN SCOTT

NOT FOR PUBLICATION WITHOUT THE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.

JOHN SCOTT,

Defendant-Appellant.

____________________________

February 10, 2015

Submitted February 3, 2015 Decided

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-01-0070.

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

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant appeals from his convictions for second-degree unlawful possession of a weapon, N.J.S.A.2C:39-5b; second-degree unlawful possession of an assault firearm, N.J.S.A2C:39-5f; and fourth-degree possession of a weapon and devices, N.J.S.A.2C:39-3j. We affirm.

I.

A State Police trooper (the "Trooper") and his partner (collectively the "Troopers"), were patrolling a non-residential, high crime area. At approximately 1:00 a.m., the Troopers observed a taxi in an alleyway with the "brake lights being energized on and off . . . like . . . maybe someone was in distress." The Troopers entered the alleyway, and the taxi began driving in an abnormal manner of accelerating and suddenly stopping. The taxi stopped at an intersection, the Troopers activated their emergency lights, and exited their unmarked SUV.

As the Troopers approached, they noticed the taxi was a four-door Lincoln sedan with tinted windows. The Trooper spoke to the front seat passenger, heard a "rustling" from the back seat, and noticed the taxi was "shaking." The Trooper then opened the rear passenger door of the taxi because he could not see inside the vehicle, and observed defendant "seated . . . and down between his legs." The Trooper ordered defendant to show his hands and at that point, the Trooper observed a semi-automatic pistol magazine at defendant's feet. The Trooper removed defendant from the taxi and arrested him at the scene. A semi-automatic pistol was found in the taxi's passenger cabin.

A grand jury indicted defendant for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and second-degree possession of a firearm by certain persons not to have weapons, N.J.S.A. 2C:39-7b (the "first indictment"). Defendant moved to suppress the weapon, and the judge took testimony from the Trooper and the taxi driver. The Trooper testified to his observations, and although the taxi driver stated that he was "driving regularly," the taxi driver testified that he "was not sure what we got stopped for," and that he did not signal for help. The judge denied the motion to suppress pursuant to the community caretaker and plain view exceptions to the warrant requirement under the United States and New Jersey Constitutions.

A second indictment (the "second indictment") superseded the first indictment, charging defendant with second-degree unlawful possession of a weapon, N.J.S.A.2C:39-5b (Count One); second-degree unlawful possession of an assault firearm, N.J.S.A2C:39-5f (Count Two); fourth-degree possession of a weapon and devices, N.J.S.A.2C:39-3j (Count Three); and second-degree certain persons not to have weapons, N.J.S.A.2C:39-7b (Count Four). The jury found defendant guilty on Counts One through Three of the second indictment and the State subsequently agreed to dismiss Count Four. The judge then sentenced defendant to an extended-term of fourteen years in prison with seven years of parole ineligibility on Count One, with concurrent sentences of ten years in prison with five years of parole ineligibility on Count Two, and eighteen months in prison with nine months of parole ineligibility on Count Three.

Defendant raises the following points on appeal

POINT I

THE LAW ENFORCEMENT OFFICERS DISCOVERED AND SEIZED THE EVIDENCE IN VIOLATION OF THE CONSTITUTIONAL PROHIBITION AGAINST UNREASONABLE SEARCHES AND SEIZURES. THEREFORE, THIS COURT SHOULD REVERSE THE LOWER COURT'S ORDER DENYING THE MOTION TO SUPPRESS EVIDENCE.

A. The Court Below Erred in Finding That the Motor Vehicle Stop Was Justified Under the Community Caretaking Doctrine, As the Officers' Conduct Was Neither Prompted By Circumstances Creating an Objectively Reasonable Basis to Infer That One of the Vehicle's Occupants Was in Distress Nor Divorced From the Detection and Investigation of Criminal Activity.

B. The Lower Court's Determination that [the Trooper] Was Permitted to Open the Taxicab's Passenger Door Was Erroneous Because the Circumstances Would Not Generate a Heightened Awareness of Danger in a Reasonable Officer.

C. The Plain View Doctrine Is Inapplicable Because the Officer Was Not Lawfully in the Viewing Area and the Evidence Was Not Discovered Inadvertently (Raised Below, in Part).

POINT II

THE LOWER COURT'S FACTUAL FINDINGS WERE ROOTED IN IMPERMISSIBLE AND FUNDAMENTALLY FLAWED REASONING. THEREFORE, [DEFENDANT] IS ENTITLED TO REVERSAL OF THE ORDER DENYING THE MOTION TO SUPPRESS EVIDENCE.

A. The Lower Court's Factual Findings Were Predicated Upon [t]he Impermissible Presumption That the Testimony of a Law Enforcement Officer Is More Credible Than That of a Civilian Witness.

B. The Court Below Employed Flawed Reasoning When Presupposing That Law Enforcement Officers Would Not Stop a Vehicle For an Improper Purpose, and Thus Found That [the Trooper's] Account of the Facts Preceding the Motor Vehicle Stop Must Have Been True.

POINT III

IN THE ALTERNATIVE, THE CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCE IMPOSED BY THE COURT BELOW IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.

A. The Sentencing Court Ascribed Undue Weight to [Defendant's] Prior Convictions, Resulting in Duplicative Consideration of His Prior Record.

B. The Sentencing Court Failed to Consider [Defendant's] Status as a Youthful Offender.

II.

When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted). This is because the trial court has the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (citation and internal quotation marks omitted). Therefore, "[a]n appellate court cannot substitute its own findings merely because it would have drawn different [47] inferences from the evidence." State v. Brown, 216 N.J. 508, 538 (2014). The trial court's legal conclusions, however, are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). In applying this standard, we reject defendant's contention that the trial judge erred by denying the motion to suppress.

A.

There is sufficient credible evidence in the record to support the judge's factual findings. The judge found the testimony of the Trooper and the taxi driver at the suppression hearing to be credible, but determined the Trooper's testimony to be more credible. The judge stated that he had

to compare the [taxi] driver to the [T]rooper. And the . . . [T]rooper's testimony . . . appeared to be credible. It wasn't by much. . . .

But if I had to bet my life on it, I'd bet the [T]rooper's version . . . of . . . what he said he observed.

I can't find any plausible explanation for stopping this [taxi], other than the observations the [T]rooper said he made. . . .

[O]n balance, given the high crime area, given the time of night, given the six . . . abrupt stops . . . it's not unreasonable to stop the vehicle to make sure everything's all right.

Defendant's suggestion that the judge credited the testimony of the Trooper more simply because he was a law enforcement officer is not persuasive. There is nothing in the record which suggests that the testimony of the Trooper was not credible, or that the judge's factual determinations were "clearly mistaken or so wide of the mark that the interests of justice required appellate intervention." Brown, supra, 216 N.J. at 538 (citation and internal quotation marks omitted).

B.

We conclude that the community caretaker and plain viewexceptions to the warrant requirement apply to the facts of this case.

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution guarantee "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV; N.J. Const. art. I, 7. Warrantless searches and seizures are presumptively invalid under Article I, paragraph 7 of the New Jersey Constitution and theFourth Amendment of the United States Constitution. State v. Bruzzese, 94N.J. 210,216-18 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). It is the burden of the State to show that the search falls within a recognized exception to the warrant requirement and that the search was permissible. State v. DeLuca, 168 N.J. 626, 631-32 (2001).

The community caretaker exception to the Fourth Amendment "applies when the 'police are engaged in functions, [which are] totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a [criminal] statute.'" State v. Diloreto, 180 N.J. 264, 275 (2004) (alterations in original) (quoting State v. Cassidy, 179 N.J.150, 161 n.4 (2004)). "Community caretaking . . . is based on a service notion that police serve to ensure the safety and welfare of the citizenry at large." Id. at 276 (citation and internal quotation marks omitted).

The plain view exception applies when (1) the officer is lawfully in the viewing area; (2) the officer discovers evidence "inadvertently," without knowing "in advance where evidence was located nor intend[ing] beforehand to seize it"; and (3) it is "immediately apparent to the officer that items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v.Johnson, 171N.J. 192,206-07 (2002) (citations and internal quotation marks omitted). "A simple observation into the interior of an automobile by a police officer located outside the automobile is not a 'search' within the meaning of the Fourth Amendment." State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987) (citing Texas v. Brown, 460 U.S. 730, 739-40, 103 S. Ct. 1535, 1541-42, 75 L. Ed. 2d 502, 512 (1983)). Also, inadvertent discovery is not required when officers observe an object in plain view without any intrusion. Id. at 216.

Here, the community caretaker exception allowed the Troopers to stop the taxi because the Troopers had a reasonable belief that the taxi driver or its occupants were in distress based upon the location and actions of the taxi. The community caretaker exception thus lawfully placed the Troopers in the viewing area around the taxi. While there, the Trooper observed "rustling"and "shaking"within thetaxi, promptinghim to open the rear door because he could not see into the taxi due to the time of dayand thetinted windows. See Diloreto,supra, 180 N.J. at 276 (noting that "[o]ur federal and State constitutions also permit warrantless conduct when the police perceive a risk to their safety"). The Trooper immediately and clearly observed the semi-automaticgun magazine at defendant's feet. This sequence of events justifies the application of the plain view exception.

III.

Defendant's remaining argument, that his sentence was manifestly excessive and unduly punitive, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief remarks.

Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed which is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court "first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 N.J. 49, 64 (2014). The court must then "determine which factors are supported by a preponderance of [the] evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.

Here, the judge granted the State's request to treat defendant as a persistent offender and provided an adequate factual basis for finding aggravating factors three, six, and nine. See Case, supra, 220 N.J. at 66 (citing State v. Fuentes, 217 N.J. 57, 73 (2014) (noting that a sentencing court must state a factual basis supporting a finding of particular aggravating or mitigating factors affecting the sentence)). Despite defendant's contentions, the judge expressly stated he did not "double count" defendant's prior convictions for the purpose of finding him a persistent offender and when weighing the aggravating factors. Moreover, the judge could not consider defendant's youth as a mitigating factor because defendant was twenty-five years old and was not "substantially influenced by another person more mature" than him. N.J.S.A. 2C:44-1b(13).

There is no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).

Affirmed.