STATE OF NEW JERSEY v. DARYL O. BURGESS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARYL O. BURGESS, a/k/a

JAMES LANE,

Defendant-Appellant.

________________________________

November 15, 2016

Submitted October 31, 2016 Decided

Before Judges Nugent and Haas.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 13-12-1497.

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

AngeloJ. Onofri,Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Supervising Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Daryl Burgess appeals his conviction, following his entry of a guilty plea, for second-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b). The issue on appeal is whether the trial judge erred in denying defendant's motion to suppress evidence seized at the time of his arrest. We affirm.

At approximately 2:20 a.m. on July 6, 2013, Officer Joseph Schiaretti and his partner were on patrol in a "crime-ridden area" of West Trenton. Officer Schiaretti testified that he received a call from dispatch stating that a woman was in an alleyway near an intersection "hiding from her boyfriend, who was in a car looking for her." The woman also reported that her boyfriend "possibly had a gun on him."

The officers went to the intersection and located the woman who had called 9-1-1 seeking help. The woman, who was later identified as Natasha Jones, told the officers "her boyfriend was chasing her . . . and that he had a gun on him."

Moments later, defendant drove up in a car, got out, and started yelling at Jones "to get in his car." Officer Schiaretti testified that defendant was acting "[v]ery aggressively. He was screaming and hollering." Based on defendant's behavior and Jones' claim that he was carrying a gun, the officers drew their weapons and told defendant to "show us his hands." Defendant complied. Officer Schiaretti then patted down defendant for weapons "[f]or our safety and the victim's safety." During the pat-down, the officer "felt a bulge consistent with a handgun." Officer Schiaretti removed a loaded ".38 Charter Arms revolver" from defendant's waistband and arrested him.

At the suppression hearing, Jones1 testified that she had been with defendant in his car on the evening of the incident. At some point, Jones got into an argument with defendant and ran away from him. When she realized she no longer knew where she was, Jones called 9-1-1. Jones stated she did not remember whether she told the operator or the police officers that defendant was carrying a handgun.

Defendant also testified at the hearing. He confirmed that he and Jones had an argument and Jones ran away. He denied "yelling and screaming" at Jones when he found her standing with the officers. Defendant admitted that the police found the handgun when they searched him.

Following the hearing, Judge Timothy Lydon rendered a comprehensive written decision, denying defendant's motion to suppress the handgun. Judge Lydon made detailed credibility findings. The judge found that "Officer Schiaretti's statements were reliable [and] . . . convincingly demonstrated that [Jones] informed the 9-1-1 operator and the officers on the scene that [defendant] possessed a gun."

On the other hand, the judge determined that "Jones' failure to recall whether she informed the police about [defendant's] gun [was] suspect." In this regard, the judge noted that Jones remembered almost everything about the incident except whether she told the police about defendant's handgun. Thus, the judge concluded that Jones' testimony was "incredible[.]" Judge Lydon also found that defendant's claim that he did not act aggressively toward Jones "was not credible." The judge observed that defendant "spoke rapidly[;] failed to provide complete answers to questions under cross[-]examination[; and] raised his voice to evade questioning[.]"

Based upon Jones' statements to the 9-1-1 operator and the police officers that defendant had a handgun, and defendant's aggressive behavior once he arrived at the scene, the judge concluded that Officer Schiaretti's pat-down search of defendant was manifestly reasonable under the totality of the circumstances. The judge therefore denied defendant's motion to suppress the handgun.

Defendant thereafter accepted a plea agreement and pled guilty to unlawful possession of a handgun, the first count of a three-count indictment. The other two charges were dismissed. Judge Lydon sentenced defendant to five years in prison, with a three-year period of parole ineligibility. This appeal followed.

On appeal, defendant presents the following argument

THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS EVIDENCE BECAUSE, DESPITE THE CONFUSED AND INCOMPLETE RECORD, THE TRIAL COURT CREDITED THE OFFICER'S CLAIM THAT HE HAD INFORMATION THAT [DEFENDANT] WAS ARMED WITH A GUN.

Having reviewed the arguments raised on appeal in light of the record before us and the applicable law, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Lydon's thoughtful written opinion. We add the following brief comments.

The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows

Appellate courts reviewing a grant or denial of 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. Deference to these factual findings is required because those findings are substantially influenced by [an] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy. Thus, appellate courts should reverse only when the trial court's determination is so clearly mistaken that the interests of justice demand intervention and correction.

A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference. Therefore, a trial court's legal conclusions are reviewed de novo.

[State v. Gamble, 218 N.J. 412, 424-25 (2014) (alteration in original) (internal citations omitted).]

Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 904-06 (1968) (seizure of a person); see State v. Hempele, 120 N.J. 182, 216-17 (1990) (seizure of property).

The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop 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." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). "When an officer is justified in believing that the individual whose suspicious behavior he [or she] is investigating at close range is armed and presently dangerous to the officer or to others," the officer may conduct a frisk or pat-down search "to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." Terry, supra, 392 U.S. at 24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 908. The search permitted is not one "to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence[.]" State v. Privott, 203 N.J. 16, 25 (2010) (alteration in original) (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 617 (1972)).

Applying these principles, we discern no basis for disturbing the trial judge's determination that the pat-down search was valid. After hearing and observing the witnesses as they testified, Judge Lydon found that Officer Schiaretti's testimony was credible, while defendant's and his wife's accounts were not. We defer to that credibility finding, which the judge fully explained in his written decision. Gamble, supra, 218 N.J. at 424-25. Based upon Jones' statements to the 9-1-1 operator and at the scene, Officer Schiaretti reasonably believed that defendant was armed. Defendant's aggressive behavior toward Jones further supported the officer's decision to frisk defendant for the officers' and Jones' safety.

Under the totality of these circumstances, the officer's actions were clearly appropriate. Therefore, Judge Lydon properly denied defendant's motion to suppress the handgun the officer seized during the search.

Affirmed.

1 Jones married defendant sometime prior to the November 21, 2014 suppression hearing.