STATE OF NEW JERSEY v. ERIC ADAIR II

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3697-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC ADAIR II,

Defendant-Appellant.

_______________________________

August 2, 2011

Submitted May 16, 2011 - Decided

Before Judges Grall and C.L. Miniman.

On appeal from Superior Court of New

Jersey, Law Division, Ocean County,

Indictment No. 06-04-0614.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Sharon A.

Quinn, Designated Counsel, on the

brief).

Paula T. Dow, Attorney General, attorney

for respondent (Hillary Horton, Deputy

Attorney General, of counsel and on the

brief).

PER CURIAM

Defendant Eric Adair II pled guilty to one count of conspiracy to commit murder, N.J.S.A. 2C:11-3 and N.J.S.A.

2C:5-2, a crime of the first degree, N.J.S.A. 2C:5-4a. The charges against defendant and his two co-defendants arose from a drive-by shooting in which two of the three victims were shot. The car from which the shots were fired was a tan Thunderbird. Defendant entered his guilty plea pursuant to an agreement with the State that called for the dismissal of crimes charged in eleven additional counts of the indictment and a recommendation for a sentence of fifteen years, subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2, and restitution. Defendant was sentenced in conformity with that agreement, and the requisite fines, penalties, assessments and fees were imposed.

The factual basis provided by defendant in response to questions from his attorney established the elements of conspiracy to commit murder. On November 13, 2005, defendant and his companions Dashaun Randolph and Joshua Gonzalez were in Jackson and inside a tan car. They had a gun in the car, and they agreed to use that gun with the intent to cause the death of the three occupants of another vehicle. In furtherance of that agreement, the gun was fired and two of the three occupants were shot and wounded.

During a colloquy with defendant, the judge confirmed his understanding of the rights he was waiving by pleading guilty, the penal consequences, as well as the terms of the plea agreement and the sentence it contemplated. Defendant acknowledged his understanding, his ability to read and write English and his eleventh-grade education.

Defendant was eighteen years old at the time of the crime, and he had two juvenile adjudications that the judge deemed minor. The prosecutor conceded that defendant had no ability to pay restitution, and the judge rejected defense counsel's arguments that defendant's age, use of Ecstasy, marijuana and alcohol and willingness to make restitution were circumstances warranting mitigation.

Finding no mitigating factors, the judge based defendant's sentence on three aggravating factors the nature and circumstances of the crime, the risk that defendant would commit another offense and the need to deter defendant and others from engaging in such conduct. N.J.S.A. 2C:44-1a(1), (3) and (9). He further explained that the lengthy sentence would give defendant the time he needed to think, make choices and free himself from his destructive lifestyle.

Defendant raises three issues on appeal:

I. The court erred in failing to suppress

evidence obtained in a warrantless search of defendant's vehicle.

II. The Court erred in accepting

defendant's plea agreement.

III. The sentence imposed was excessive.

Based on our review of the record and consideration of the arguments presented in Points II and III of defendant's brief, we conclude that those issues are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We also reject defendant's claim that the judge erred in denying his motion to suppress evidence found in the tan Thunderbird. He argues that the officer who stopped the car did not have the necessary reasonable suspicion and that the officer's subsequent sighting of spent shell casings on the car's floor did not justify the subsequent warrantless search he conducted.

At the suppression hearing, the State presented testimony from two of the officers involved in defendant's apprehension. Just after 1:30 a.m. on November 13, 2005, Officer Mary Nelson of the Jackson Township Police Department responded to a report of gunfire at the Regency Club Apartments. Before she reached the apartment complex, Nelson was alerted that the victims of the shooting were found in their car while they were en route to a hospital, and she went to speak to them.

When Nelson arrived at the site of that stop, she saw that one of three young men in the car, J.F., had been shot in the chest and another, N.S., in the leg. N.S. told her what happened. While he and his companion were sitting in J.F.'s car in the complex's parking lot, he noticed a tan Thunderbird back up next to them. J.F. drove out of his parking space, turned and stopped so that the third young man, K.S., could get something out of his car. Meanwhile, the driver of the Thunderbird again pulled up next to J.F.'s car. Gunshots were then fired from the Thunderbird into J.F.'s car. After the shots were fired, the Thunderbird left, and J.F. drove toward the hospital. N.S. did not give Nelson a description of the Thunderbird's occupants or the car's license plate number, but he said there were three people in it.

Nelson gave the information she obtained to the dispatcher, and a "broadcast," known as a "Monmouth Ocean County Incident Bulletin (MOIB)" which alerts officers in the vicinity of an incident to focus their efforts on the incident reported until the MOIB is cancelled. The MOIB advised police in the area to be on the lookout for a tan Thunderbird with three occupants that had been identified as connected with a shooting in Jackson.

Patrolman Adam Griesemer of the South Toms River Police Department was on duty and heard the MOIB, and he also heard a dispatch canceling the MOIB at about 2:30 a.m. The officers explained that the cancellation of a MOIB means nothing other than that the officers should focus on their normal duties.

At about 3:00 a.m., Griesemer saw a tan Thunderbird approaching from the west on Dover Road in Toms River. When he saw the car, it was about twenty miles from Jackson Township, and it had four occupants. Griesemer turned his patrol car around and followed the Thunderbird. He pulled right up behind it, and, when he did, the driver turned off Dover Road and onto Route 9. At that point, Griesemer activated the patrol car's lights and siren to signal the Thunderbird to stop. He acknowledged that he had not seen any "erratic" driving before he signaled the car to stop. He also admitted that he knew nothing about the car's occupants other than that there were four of them. After Griesemer turned on the lights and siren, the driver turned off Route 9 and onto another local street.

The Thunderbird continued on for about one-quarter mile, moving several times from the roadway to the curb line and back. Each time the Thunderbird moved to the curb, the officer thought the driver was going to stop, but he did not. The driver, defendant, finally stopped the Thunderbird at an intersection controlled by a stop sign. When defendant stopped, the front-seat passenger, co-defendant Randolph, got out. As Randolph left the car, a gun fell from his waistband and onto the ground. He picked up the gun and ran.

An officer who had arrived to assist Griesemer chased Randolph through the yards of the nearby homes while Griesemer stayed with the Thunderbird and its occupants. When police officers from neighboring towns arrived to assist him, the passengers were removed from the car and handcuffed. Thereafter, Griesemer went back to the car with his flashlight and looked inside without entering the car. He saw empty shell casings on the floor behind the driver's seat and then searched the passenger compartment for any other weapons. He did not find any.

Randolph was subsequently arrested at a Quik Chek, and Griesemer identified him. Griesemer and another officer subsequently found the handgun along the route Randolph took when he ran from the Thunderbird. The car was impounded, but during a subsequent search, conducted pursuant to a warrant, no additional weapons were found.

Judge Citta credited the officers' testimony and determined that Griesemer had, under the totality of the circumstances, reasonable suspicion that this tan Thunderbird held persons involved in the Jackson shooting. He found that the car matched the description and had only one occupant more than N.S. reported. In addition, the car had turned off the road on which it was traveling as soon as Griesemer followed it.

The judge also found that after Griesemer saw Randolph drop the gun, the officer had additional cause to believe that he was dealing with the persons and the car involved in the shooting. The judge concluded that after seeing the gun and Randolph's flight, Griesemer acted reasonably by looking into the car from the outside for additional weapons or evidence.

We must uphold Judge Citta's factual findings because they are "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). We accept his conclusions because they are consistent with the controlling legal principles.

An officer may make an investigatory stop when specific and articulable objective facts and the rational inferences they permit "give rise to a reasonable suspicion of criminal activity." State v. Birkenmeier, 185 N.J. 552, 561-62 (2006) (internal quotations omitted); State v. Rodriguez, 172 N.J. 117, 126-27 (2002). "Facts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate, so long as the officer maintains an objectively reasonable belief that the collective circumstances are consistent with criminal conduct." State v. Nishina, 175 N.J. 502, 511 (2003).

This car matched the description of a specific model and color car involved in a shooting in a town about twenty miles away. While this car had one more occupant than the one that the victims of the shooting saw, the officer did not spot the car immediately after the incident was reported. Finally, when the officer turned his patrol car around and followed the Thunderbird, the driver turned off the street on which he was traveling and onto Route 9. In the totality of those circumstances, the driver's reaction was objective behavior that gave the officer reason to suspect that the driver was avoiding contact with him. The driver's subsequent reaction when the officer followed the Thunderbird onto Route 9 promptly turning off Route 9 and onto a local street gave the officer additional reason to continue his effort to have its driver stop.

Once the passenger left the car when it came to a stop at a stop sign, dropped a gun, picked it up and ran, it was reasonable for the officer to go to the car and look inside to see if there were other firearms or evidence of the crime inside. He did not know in advance that he would find spent shell casings on the floor, and his conduct was justifiable under the plain-view exception to the warrant requirement. State v. Mann, 203 N.J. 328, 341 (2010).

Affirmed.