STATE OF NEW JERSEY v. DONALD BYARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3145-07T43145-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD BYARD,

Defendant-Appellant.

___________________________________

 

Submitted September 16, 2009 - Decided

Before Judges Miniman and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No. 05-12-2708.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Peter J. Gallagher, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Donald Byard appeals his conviction, after a guilty plea, for violation of N.J.S.A. 2C:39-7, which prohibits certain persons from possessing weapons. We affirm.

I.

The following facts were developed at the hearing on Byard's motion to suppress evidence, held in April and May 2006, and in the papers submitted in connection with his motion to suppress the statement given to the police following his arrest.

A.

On November 1, 2005, Atlantic City Police Officer Michael Ruzzo received information from a confidential informant that a man living at a specific Westminster Place address had a large amount of cocaine and guns in the house. He was also informed that the individual drove a green Taurus vehicle to make drug deliveries. Ruzzo went to the Westminster Place location, where he saw a green Taurus parked in front of the house. He checked the license plate of the vehicle and learned that the car was registered to Byard. Ruzzo also checked Byard's criminal history and learned that Byard's physical description matched the description given to him by the confidential informant.

After consulting with his supervisor, Ruzzo returned to Westminster Place and began a "fixed surveillance" of the house from across the street. He saw Byard leave the house shortly after 10:00 p.m. Ruzzo observed Byard drinking from a bottle of Corona beer as he walked to the green Taurus. He placed the beer bottle on top of the car and engaged in a conversation with someone who was driving past the house. Byard then entered the Taurus and drove west on Sewell Avenue toward Kentucky Avenue. Ruzzo notified the assisting police officers in the area of his observations, including those with respect to the bottle of beer.

Police Officer William Warner understood that the subject of the investigation was supposed to be in possession of a handgun and drugs and driving a green Taurus. After Warner heard Ruzzo's report that Byard was driving a green Taurus, Warner spotted the vehicle and began to follow it. Warner observed the driver make a head movement as if he were taking a sip from something. Warner also observed the Taurus "roll[] through a stop sign." He activated his police lights and effected a motor vehicle stop.

Warner parked his police car behind the Taurus, exited, and approached the vehicle. He illuminated the inside of the car with his flashlight and saw a bottle of Corona beer on the floor by the driver's feet. Warner testified that he detected the "strong odor" of an alcoholic beverage coming from inside the car. When asked for identification, Byard gave Warner an expired insurance card with his other driving credentials.

Because he was aware of the information that Byard might be armed, Warner ordered Byard to get out of the Taurus and walk to the rear of the car. Warner noticed that Byard began to sweat profusely. Warner stated that when asked why he was sweating, Byard responded: "I got a pistol on me." There was a loaded 9-millimeter handgun under Byard's waistband. Byard was arrested and also issued motor vehicle summonses for having an open container of alcohol in the car, having an expired insurance card, and failing to stop at a stop sign.

According to Byard, he was staying at this girlfriend's house on Westminster Place. He left the house and drove to a house on Kentucky Avenue. While there, he was given a bottle of Corona beer. Byard testified that he noticed Ruzzo drive past the house in a police car. He acknowledged that he walked back to his car with the bottle of beer. He testified that, when he started to drive, he was holding the beer bottle in his left hand and driving with his right hand.

Byard testified that he recalled seeing another police car when he made a turn. Although he admitted that he was holding the bottle as he drove, Byard denied that he drank the beer as he was driving. He stopped at the stop signs at the intersection of Adriatic Avenue and New York Avenue, and then at the intersection of Adriatic Avenue and Tennessee Avenue. By that time, the police car had positioned itself behind his car and activated its lights, so he pulled over. Byard testified that he had placed the beer bottle under the driver's seat.

Byard conceded that he had a handgun tucked under his shirt. According to Byard's testimony, after he exited the Taurus, he was sitting on the hood of the police car as Warner searched the inside of his car, from which Warner removed the bottle of beer. Byard testified that he heard another officer say: "Let him go." A different officer asked Warner if he had searched Byard. He was then ordered off the police car and told to raise his hands. When the officer began to pat him down, the officer felt the handgun at his waist and asked what it was. Byard then stated: "It's a gun." The weapon was seized and he was placed under arrest.

The motion judge determined that the police testimony was more credible than Byard's. He found that

[T]he defendant emerged from [the] Westminster Place [location] as described by Officer Ruzzo; that he was seen to be driving with an open container of alcoholic beverage; that the motor vehicle stop was proper based upon the articulable reasonable suspicion that he was violating Title 39 and that he volunteered that he was in possession of a handgun subsequent to the motor vehicle stop.

Consequently, Byard's motion to suppress the gun was denied.

B.

Following Byard's arrest, the police searched the Westminster Place location without a warrant. Shortly after midnight on November 2, 2005, almost two hours after Byard was arrested, Sgt. Applegate read Byard his Miranda rights, which Byard waived. Applegate summarized the facts leading up to that point, including a description of the evidence recovered from Westminster Place, and Byard confessed to owning the narcotics and bullets found there, stating that they did not belong to his girlfriend. He also repeated his earlier concession that he was in possession of a handgun when he was arrested. Although the motion judge had suppressed the evidence seized during the warrantless search, he denied the motion to suppress Byard's statement, explaining his reasons as follows:

[T]he chain of events between the illegal search and the confession were sufficiently attenuated to render the defendant's confession voluntary. The defendant was lawfully in custody on another unrelated charge. The police only advised him his girlfriend's apartment had been searched and narcotics recovered. If the defendant confessed to the possession of the contraband recovered from [the girlfriend's] apartment at least in part to exonerate her, there is authority that holds that such a statement is not tainted.

C.

Byard was indicted and charged with the following offenses: possession of cocaine with the intent to distribute, a crime of the second degree, contrary to the provisions of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count one); possession of cocaine with the intent to distribute within a school zone, a crime of the third degree, contrary to the provisions of N.J.S.A. 2C:35-7 (count two); possession of cocaine, a crime of the third degree, contrary to the provisions of N.J.S.A. 2C:35-10(a)(1) (count three); committing a drug offense while in the possession of a handgun, a crime of the second degree, contrary to the provisions of N.J.S.A. 2C:39-4.1 (count four); unlawful possession of a weapon, a crime of the third degree, contrary to the provisions of N.J.S.A. 2C:39-5(b) (count five); unlawful possession of a prohibited bullet, a crime of the fourth degree, contrary to the provisions of N.J.S.A. 2C:39-3(f) (count six); and being a person prohibited from possessing a weapon, a crime of the second degree, contrary to the provisions of N.J.S.A. 2C:39-7 (count seven).

In exchange for a recommendation that he be sentenced to a five-year term of incarceration with a five-year period of parole ineligibility, Byard agreed to plead guilty to count seven of the indictment, which charged him with second-degree possession of a weapon by a person not to have weapons, N.J.S.A. 2C:39-7. The State also agreed not to request an extended term of incarceration. Byard entered a guilty plea on December 12, 2006. He did not condition the plea on his ability to appeal the adverse decision on his motion to suppress his statement to the police. The recommended sentence was imposed on March 30, 2007, along with the required fines and fees. This appeal followed.

II.

On appeal, Byard raises the following issues.

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.

(A)

OFFICER WARNER'S STOP OF THE DEFENDANT'S VEHICLE WAS A "PRETEXT STOP" WITHOUT ANY LEGAL JUSTIFICATION.

(B)

EVEN IF OFFICER WARNER HAD AN ARTICULABLE AND REASONABLE SUSPICION THAT THE DEFENDANT HAD COMMITTED A MOTOR VEHICLE VIOLATION, HIS INITIAL ENCOUNTER WITH THE DEFENDANT RESULTED IN A DE FACTO ARREST THAT WAS NOT SUPPORTED BY PROBABLE CAUSE.

(C)

THE SUBSEQUENT SEIZURE OF THE GUN SHOULD HAVE BEEN SUPPRESSED AS BEING THE "FRUIT OF THE POISONOUS TREE."

POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS HIS INCULPATORY STATEMENT BECAUSE OF ANTECEDENT ILLEGALITY.

A.

The Supreme Court recently explained the standard of review applicable to a trial court's decision on a motion to suppress as follows:

Our analysis must begin with an understanding of the standard of appellate review that applies to a motion judge's findings in a suppression hearing. As the Appellate Division in this case clearly recognized, an appellate court reviewing 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." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
 
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate 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 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

[State v. Elders, 192 N.J. 224, 243-44 (2007).]

Having reviewed the record, we conclude that the motion judge's factual findings were supported by the testimony and his credibility determinations.

All that is required for a "'lawful stop of an automobile [is a] reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed.'" State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009) (quoting State v. Carty, 170 N.J. 632, 639-640, modified by 174 N.J. 351 (2002)). Here, Warner observed Byard go through a stop sign without making a full stop. Warner also observed Byard making a movement as if he were drinking at a time when Warner had reason to believe Byard had an open bottle of beer in the car. Indeed, although Byard denies drinking from the bottle, he did not deny driving with it in his hand. Consequently, we find that the motor vehicle stop was lawful.

Once he approached the green Taurus, Warner observed the bottle of beer on the floor of the car and smelled alcohol. Byard also gave him an expired insurance card. In addition, Warner had reason to believe that Byard might be armed. Even without those additional factors, Warner had the right to order Byard out of the vehicle. State v. Baum, 199 N.J. 407, 425 (2007) (citing State v. Smith, 134 N.J. 599, 611 (1994)). Once Byard was out of the vehicle and Warner asked him why he was sweating profusely, Byard admitted to having the weapon.

Byard concedes, as he must, that our review of the reasonableness of Warner's decision to stop the green Taurus is "limited" to a determination of whether his conduct was "objectively reasonable, without regard to his . . . underlying motives or intent." State v. Bruzzese, 94 N.J. 210 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). He nevertheless seeks to characterize it as a "pretext stop," by arguing that he actually stopped at each stop sign he drove through. Because we have sustained the motion judge's factual finding to the contrary, we reject his argument. The fact that Byard was "being watched because he is suspected of one crime does not immunize him during the period of surveillance from arrest for another offense." State v. Padavano, 81 N.J. Super. 321, 327 (App. Div. 1963).

Consequently, we conclude that the motion judge correctly decided the motion to suppress the weapon and affirm that decision.

B.

Having reviewed Byard's remaining arguments on appeal in light of the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We note only that the State correctly argues that Byard is precluded from raising the denial of his motion to suppress his statement to the police by virtue of his unconditional plea. State v. Smith, 307 N.J. Super. 1, 8 (App. Div. 1997) (noting that "'unsuccessful challenges to statements and Miranda violations cannot be raised on appeal after a guilty plea pursuant to R. 3:5-7(d)'") (citation omitted), certif. denied, 153 N.J. 216 (1998).

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-3145-07T4

October 5, 2009