STATE OF NEW JERSEY v. KEARNEY POWELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5692-06T45692-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEARNEY POWELL,

Defendant-Appellant.

__________________________________

 

Submitted October 14, 2009 - Decided

Before Judges Skillman and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

06-02-0197.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jeffrey R. Jablonski, Designated

Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for

respondent (Frank J. Ducoat, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant Kearny Powell was tried before a jury and convicted of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1), third-degree possession of a handgun without the required permit, N.J.S.A. 2C:39-5b, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2b. After the jury returned its verdict, defendant pled guilty, pursuant to a negotiated agreement, to one count of second-degree possession of a handgun by a person who has been previously convicted of one of the offenses listed in N.J.S.A. 2C:39-7. The court sentenced defendant to an aggregate term of ten years, five years of parole ineligibility, and imposed the mandatory fines and penalties.

We gather the following facts from the evidence presented before the trial court.

At approximately three o'clock in the morning of August 24, 2005, Jersey City Police Officer Christopher Monahan was driving a marked police car accompanied by fellow Officer Patrick Sullivan. Both officers were in uniform. As they headed east on Bostwick Avenue, another car abruptly entered their lane of traffic, ran through a stop sign, and almost collided broadside with their police car. The vehicle then turned right and began heading south.

As they followed the car, Officer Sullivan entered the vehicle's license plate number into a mobile data computer (MDT). This onboard computer provides officers with instant access to a database containing, among other things, the names of individuals with a suspended or revoked driver's license or outstanding warrants; the MDT also indicates if a vehicle has been reported stolen or is unregistered.

The MDT search revealed that the vehicle was either not registered or that its license plate number did not match the car's model type. Based on both an apparent lack of registration, and the previous observed traffic infraction (running the stop sign), the officers decided to follow the car until they could find a location to safely stop the vehicle. In the meantime, they kept their local precinct apprised of the situation.

When they reached the intersection of Carteret and Randolph, the officers turned on their emergency overhead lights, signaling for the vehicle to pull over. The car initially complied, stopping approximately "two car lengths" up from the street corner. At this time, two back-up officers arrived and exited their vehicle. As Officer Sullivan was about to exit his car, Officer Monahan noticed that the suspect vehicle's brake lights were still lit. Based on his training and experience, Monahan inferred a possible intent by the driver to flee. As he explained, "if . . . you're pulling somebody over and they have their foot on the brake, there's something else going on."

Monahan's suspicions proved to be prescient. The stopped vehicle suddenly drove away with great haste and at a high rate of speed. A police pursuit ensued. Both Monahan and Sullivan testified that they never lost sight of the wayward car throughout the pursuit; the fleeing vehicle never reduced speed, hitting at least one speed hump with such force that it caused the car to become airborne while sparks and dust flew from underneath the vehicle. Throughout the pursuit, the car ran through at least two stop signs; the pursuit covered over four city blocks during which the officers maintained an average speed of approximately 55 mph in order to keep up with the car.

Finally, when the car failed to negotiate a turn, it came to a stop. According to Monahan, his police car stopped "a safe distance behind the vehicle." At this point, the occupants of the car opened the doors and began to flee, leaving the car running and its doors open. Monahan then "tackled" and handcuffed the driver, subsequently identified as Terrence Williams, who was found ducked behind a van. Sullivan arrested defendant, who had only run about five or ten feet before stopping.

With the two men handcuffed and secured in the police car, the officers returned to the vehicle to prepare it for towing. It was at this point that Monahan and Sullivan saw a handgun (a loaded five-shot Taurus .38 Special) thrown in the middle of the front bench seat. They also noticed an open McDonald's bag on the passenger side by "the hump" covering the gearshift. Inside the open bag Monahan saw what, based on his training and experience, looked like a bundle of heroin with a rubber band around it. The bundle was nearly falling out of the bag. Analysis subsequently established that the bundle contained nine glycine bags of heroin.

Against these facts, defendant now appeals raising the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING MR. POWELL'S MOTION TO SUPPRESS THE EVIDENCE SINCE THE STATE DID NOT ESTABLISH THE INITIAL REASONABLENESS OF THE OFFICERS' ACTIONS.

A. The "plain view" doctrine to justify the discovery of the evidence does not apply.

POINT II

MR. POWELL'S DUE PROCESS RIGHT TO A FAIR TRIAL WAS VIOLATED SINCE HE WAS NOT INFORMED OF THE CONSEQUENCES OF A STIPULATION TO AN INTEGRAL ELEMENT OF SOME OF THE OFFENSES FOR WHICH HE WAS CONVICTED. (Not Raised Below)

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING MR. POWELL TO EXCESSIVE AND UNJUSTIFIED PRISON TERMS WITHOUT A CONSIDERATION OF ANY SENTENCING FACTORS.

We reject these arguments and affirm. The arguments raised in Point I lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The actions taken by the police in engaging in a high speed pursuit of defendant's vehicle were proper under the circumstances. The officers were forced to pursue defendant's car after it sped away from a lawful traffic stop.

The incriminating evidence seized by the police from defendant was discovered in plain view and was thus not the product of a search within the meaning of the Fourth Amendment of the United States Constitution or Article I, paragraph 7 of the New Jersey Constitution. Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576, 582 (1967). Here, the officers were lawfully at the scene when they saw the handgun and suspected heroin. Given the officers' training and experience, there was no ambiguity of the illicit nature of the items involved. The evidence was therefore properly obtained. State v. Johnson, 171 N.J. 192, 207 (2002).

Defendant's argument in Point II is equally devoid of merit. Defense counsel's decision to stipulate to the admissibility of the laboratory certificate indicating that the substance found in the car was in fact heroin, in lieu of compelling the production of the chemist who performed the analysis, is a well-established practice that falls within the purview of an attorney's trial strategy. Defendant is free to raise the issue of ineffective assistance of counsel in the context of a post conviction relief petition.

As to Point III, the sentence imposed by the trial court was well within its discretionary authority and is supported by the applicable aggravating and mitigating factors. State v. Cassady, 198 N.J. 165, 181 (2009). Finally, we note that defendant's conviction of the second-degree crime of possession of a handgun by a person who has been previously convicted of one of the offenses listed in N.J.S.A. 2C:39-7, carries a mandatory five-year term without parole. Thus, the bulk of defendant's sentence was predetermined as a matter of law.

Affirmed.

 

Defendant was tried with his codefendant Terrance Williams.

Under the plea agreement, the State agreed to vacate the guilty plea to this offense if defendant were to prevail on appeal.

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A-5692-06T4

December 28, 2009