STATE OF NEW JERSEY v. FRANK A. MOORE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4788-04T44788-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK A. MOORE,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 24, 2007 - Decided April 25, 2007

Before Judges Parker, C.S. Fisher and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-02-0477.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).

Joshua M. Ottenberg, Acting Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After his suppression motion was denied, defendant Frank A. Moore entered a guilty plea to third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and -5b(11). He was sentenced to a term of six years subject to three years parole ineligibility. We affirm.

During the suppression hearing, the following facts were elicited. On October 10, 2002, at approximately 7:24 p.m., Camden Police Officer Gabriel Mateo was dispatched to the intersection of Fourth and Jackson Streets to investigate a report that a stop sign had been knocked down. When he arrived at the scene, he found that the stop sign was, in fact, down. While he was there, an unidentified person advised him that the occupants of a nearby vehicle were involved in sexual acts. Mateo did not question the informant, nor did he identify that person. He did, however, approach the car to investigate and confirmed that there was a man and a woman in the car engaged in oral sex. Mateo returned to his patrol car and activated the lights to notify the occupants of the car of his presence. At that point, he saw the man on the driver's side attempt to get out of the vehicle. Mateo stepped out of his car and told the man, later identified as defendant, to return to his car. Defendant complied. Mateo then asked defendant for his driver's license and registration, which defendant could not produce. As Mateo was shining his flashlight in the car, he saw a white plastic shopping bag in the backseat containing what appeared to be "green vegetation," which he believed was marijuana. He then ordered the occupants out of the vehicle and seized the bag. Upon further investigation, it was determined that the shopping bag contained numerous packages of marijuana.

Defendant testified at the suppression hearing that he had borrowed his girlfriend's car about a half hour before encountering Mateo. He claimed that he was sitting in the car talking to, T.V., a woman he "didn't really know" but had "always seen her like around [the] downtown area." He picked her up and was just "riding at that moment," but had stopped on the corner of Jackson and Fourth to "sit and talk." He claimed that the officer pulled up behind him, flashed his lights and told him to get out of the car. He testified that there was no white plastic bag in the backseat, that he did not know if Mateo found any marijuana in the vehicle, and that he had no idea there was marijuana in the car when he borrowed the car from his girlfriend. He further denied engaging in sexual conduct with T.V. when Mateo approached the vehicle.

After hearing the testimony, the trial judge found Mateo to be a credible witness. With respect to defendant, the trial court noted that he was equivocal, "not certain about what it was he recalled," and found that defendant's "credibility concerning the issue of his awareness of what was and what wasn't in the vehicle, and his assertion that he had no awareness that there was any contraband in the backseat is not credible." The court concluded that defendant was attempting to "shift some responsibility for what was discovered and located in the backseat."

The court found further that Mateo "had a specific and articulable piece of information which led him to be suspicious of criminal activity and led him to the vehicle." Moreover, the officer had reason to investigate further when, after finding defendant engaged in a sexual act, "the initial stop wasn't the equivalent of an initial traffic stop." "[O]nce the observation was made of the sexual activity, [the court found] that there continued to be a specific and articulable set of facts that gave rise to suspicions of criminal activity." When the officer was "in the midst of . . . an investigatory stop for purposes of discovering only the nature of the lewdness . . . the officer . . . was where he had a right to be." Consequently, he had the right to use the flashlight and observed the bag in plain view. The motion to suppress was denied.

In this appeal, defendant argues:

POINT ONE

THE EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED AS IT WAS SEIZED IN VIOLATION OF DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS

A. THE COURT IMPROPERLY ALLOWED THE UNRELIABLE AND VAGUE TIP OF AN UNIDENTIFIABLE INFORMANT TO FIND REASONABLE SUSPICION TO STOP DEFENDANT. (Not raised below)

B. BECAUSE THE STOP WAS UNLAWFUL, THE PLAIN VIEW EXCEPTION HAS NO APPLICATION

C. MATEO WRONGFULLY SEARCHED THE TRUNK OF THE VEHICLE AND THUS, ALL EVIDENCE SEIZED MUST BE SUPPRESSED AS A MATTER OF LAW (Not raised below)

POINT TWO

THE COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S REQUEST TO WITHDRAW HIS GUILTY PLEA PRIOR TO SENTENCING

POINT THREE

THE TRIAL JUDGE ABUSED HIS DISCRETION IN IMPOSING AN EXCESSIVE SENTENCE BY FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR

The United States and New Jersey Constitutions protect the right to be free from unreasonable searches and seizures. U.S. Const. amend. IV, 1; N.J. Const. art. I, 7. This right includes "the right to be free from investigatory vehicle detention 'except in those situations in which there is at least articulable and reasonable suspicion that a motorist is . . . subject to seizure for violation of law.'" State v. Zapata, 297 N.J. Super. 160, 171 (App. Div. 1997), certif. denied, 156 N.J. 405 (1998) (quoting Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 15 L. Ed. 2d 660, 673 (1979) (emphasis added)).

Reasonable suspicion carries a lesser burden of proof than probable cause because it requires less quantitative content and "can arise from information that is less reliable than that required to show probable cause." Id. at 171-72 (quoting Drake v. County of Essex, 275 N.J. Super. 585, 589-90 (App. Div. 1994)). Moreover, "an anonymous call may provide the factual predicate necessary to justify an investigatory stop when there is corroboration of the information furnished." Zapata, supra, 297 N.J. Super. at 173 (finding that upon police corroboration of an anonymous tip, the investigatory stop was permissible). Once a police officer has corroborated an anonymous tip, he would be "derelict in [his] duty" if he did not investigate the offensive conduct. Id. at 174.

Our review of the trial court's denial of the suppression motion focuses on "whether the judge's findings are supported by evidence in the hearing transcript." State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). "In making that determination, we are duty-bound to give deference to those findings which are substantially influenced by the judge's opportunity to hear and see the witnesses and to have the 'feel' of the case." Alvarez, supra, 238 N.J. Super. at 564 (quoting Johnson, supra, 42 N.J. at 162). Although the review of factual findings is "narrow and restricted," we are "not similarly confined in assessing the validity of the legal conclusions [] reached" by the trial court. Alvarez, supra, 238 N.J. Super. at 564.

In considering credibility, the trial court found:

There are certainly suppression cases where there are not discrepancies in events and where the issue hinges solely on a matter of law. This is not one of those cases.

In evaluating the credibility, first let me refer to Officer Mateo. I find Officer Mateo to be a credible witness. He was straightforward in his testimony . . . He was careful in describing the events that he observed. I find that he did not speculate as to matters about which he did not have a specific recollection.

So, for example, when asked about distances, he was unable to specifically indicate the distances, and despite repeated questions, did not speculate about that. . . .

[H]is demeanor on the stand indicated that he was in fact credible. I found that he did not equivocate in his answers. I find that as he testified, he did not seek to in any way embellish or describe something that was not straightforward and obvious with respect to his observations. . . .

[H]e had no vested interest in describing one outcome or another outcome . . . . He did not appear to me to be overly aggressive, overly anxious, to set forth a particular sequence of events. Rather I found him to be even tempered and straightforward as he sought to describe what it was that he observed. State[d] more simply and more directly, he didn't have an ax to grind here. He simply was attempting to describe what it was that he saw, and I find that as he was cross-examined, he did not alter his story. There was a certainty to what it was that he described.

With respect to [defendant] and his credibility, when [defendant] first took the stand, I certainly make an allotment for this individual being nervous and being in a position where it is difficult to speak and to describe events. I understand that, and I understand that nervousness. However, as [defendant] sought to testify, he was uncertain about events.

I find that what I observed by his demeanor was not simply nervousness, but rather a kind of equivocation. He was not certain about what it was that he recalled, and I find that's consistent with Officer Mateo's description of events. In other words, to the extent that Officer Mateo indicated that he had received first a tip and then had made some observations about [defendant's] activities with [T.V.], it would be consistent with the fact that [defendant] would not have a clear recollection of how the police vehicle came to be at some point behind him.

I find that [defendant], as he testified, reflected an uncertainty as [to] what had happened, a confusion. I don't find that he was attempting to lie, but I find that he was uncertain. I find that he was uncertain because he was not making observations, and I find that [the] uncertainty was evident as he testified. He testified that he, quote, "had to think a while about what had happened." I find that that is a clear indication, not of nervousness, but of the uncertainty that I have just described.

So, with respect to credibility, I do find that Officer Mateo is credible in his description. I find that [defendant] is not credible in his description as to the initial stop, and I find that to be the case because there is an inability on the part of [defendant] to recall events accurately because of the activities that he was engaged in.

I find also that [defendant's] description of the way in which his vehicle was parked is a description that indicates that he was not facing the officer at the time that the officer flashed his lights. Rather, he was facing, if in fact he wasn't engaged in a sexual act, away from the officer so that all he would have been able to observe was flashing lights behind him and an awareness of flashing lights, and that he would be unable to gauge distances accurately.

. . . .

[Defendant] testified that there was nothing in the backseat. He testified that he ultimately saw Officer Mateo examine the trunk, and that he didn't know what occurred and what was taken from the trunk. In a sense he testifies that he has no awareness of what was discovered, and he has no awareness of how it came to be discovered, indicating that this was not his vehicle.

I find that [defendant's] credibility concerning the issue of his awareness of what was and wasn't in the vehicle, and his assertion that he had no awareness that there was any contraband in the backseat is not credible. I find that [defendant] saw to shift some responsibility for what was discovered and located in the backseat. . . .

. . . .

I would have found [defendant] to be more credible on that issue if he had described some things that he had initially observed as being in the vehicle, other things that he observed as being located in particular portions of the vehicle, something that would have demonstrated to me that this individual had in fact made careful observations of the vehicle, that his powers of [observation] were acute, and that he therefore had in fact the ability to know what was and wasn't in the car. I find that he did not do that, but instead made this blanket denial, quote, "[n]othing in the backseat," and I find that he did that because this was testimony which certainly, in the context of this proceeding, serves his purpose, but I find for that reason that it is not credible.

. . . .

Now, as to Officer Mateo on the issue of observations, I find that Officer Mateo was credible in his description of what he observed in the backseat. He was very specific in terms of describing what it was that he saw, and I find particularly telling his description of the manner in which he discovered the shopping bag which in turn contained [the contraband].

We defer to the trial court's factual findings on credibility, given its opportunity to view the demeanor and candor of the testifying witnesses. See Ibid. (quoting Johnson, supra, 42 N.J. at 162).

Defendant next argues that the marijuana was seized illegally. We disagree. The plain view doctrine is an exception to the requirement that a warrant be obtained prior to a search. State v. Johnson ("Johnson II"), 171 N.J. 192, 205-06 (2002). For the "plain view" exception to apply: (1) an officer must "lawfully be in the viewing area;" (2) the discovery of the evidence must be inadvertent; and (3) the evidence or contraband must be "immediately apparent." Id. at 206-07. "Immediately apparent" means that an officer must have "'probable cause to associate the property with criminal activity.'" Id. at 207 (quoting State v. Bruzzese, 94 N.J. 210, 236-38 (1983)).

Here, Mateo was lawfully on the street during an investigatory stop based on the citizen's tip that defendant was engaging in lewd conduct. N.J.S.A. 2C:14-4. While waiting for defendant to produce his credentials, Mateo shined his flashlight into the back seat, where he observed a "white shopping bag that had some other objects in it[,] which appeared to be green vegetation." Based upon his training and experience as a police officer, Mateo believed the green vegetation to be marijuana. See State v. Nishina, 175 N.J. 502, 518 (2003). The elements of the plain view exception were satisfied and the marijuana was, therefore, legally seized and defendant's motion to suppress was properly denied.

Defendant next contends that the trial court abused its discretion in denying his application to withdraw his guilty plea. A trial court can accept a plea bargain if it "is assured that a defendant enters his plea of guilty knowingly and voluntarily." State v. McQuaid, 147 N.J. 464, 486 (1997). A court

may refuse to accept a plea of guilty and shall not accept such plea without first addressing the defendant personally and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as the result of any threats or any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.

[Ibid. (quoting R. 3:9-2).]

Once a guilty plea has been accepted by a court, the right to withdraw the plea "is a matter within the broad discretion of the trial court." State v. Simon, 161 N.J. 416, 444 (1999); see also State v. Bellamy, 178 N.J. 127, 135 (2003); R. 3:9-3(e). To withdraw a plea, a defendant is required to show that he "was misinformed of the terms of the agreement or that [his] reasonable expectations were violated." Id. at 134-35. In other words, the defendant must show that he would be "prejudiced by enforcement of the agreement." Id. at 135.

Here, the trial court thoroughly questioned defendant as to whether he was voluntarily entering his plea with full knowledge of the terms of the plea agreement. See McQuaid, supra, 147 N.J. at 486. Defendant answered affirmatively to every question asked by the court. Moreover, defendant indicated on the plea form his understanding of the plea agreement and stipulated that he was eligible for an extended term. When questioned by the court, defendant reaffirmed his answers to the questions on the plea form. Defendant also provided factual support for the elements of the crime to which he pled guilty:

Q. Now, concerning the facts in this case, sir, on October 10, 2002, were you in the City of Camden?

A. Yes.

Q. And on that date, sir, did you possess some marijuana?

A. Yes.

Q. And was it more than 1-ounce but less than 5-pounds?

A. Yes.

Q. Did you know you had it in your possession?

A. Yes.

Q. Sir, was it your purpose to distribute this substance?

A. Yes.

Upon completion of defendant's testimony, the court accepted his plea.

Defendant failed to demonstrate that he was prejudiced by the plea agreement, and we find no abuse of discretion in the trial court's denial of his motion to withdraw the plea. Finally, we find no merit in defendant's sentencing arguments. The trial court recited the credible evidence in the record that supported the aggravating factors and found no mitigating factors. Defendant's criminal history fully supports the sentence imposed. See State v. Natale, 184 N.J. 458, 489 (2005).

Affirmed.

 

R. 3:9-3(e) provides:

Withdrawal of Plea. If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel or by imposing sentence in accordance with the court's previous indications of sentence, the court may vacate the plea or the defendant shall be permitted to withdraw the plea.

(continued)

(continued)

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A-4788-04T4

April 25, 2007