STATE OF NEW JERSEY v. ALBERT A. MAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4874-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT A. MAS a/k/a MACHO,

ALBERT ANTONIO MAS,

Defendant-Appellant.

________________________________________________________________

October 27, 2011

Submitted October 4, 2011 - Decided

Before Judges Carchman and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 07-04-0301 and 06-03-0295A.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Emily Anderson, Special Deputy Attorney General, on the brief).

PER CURIAM

Following his unsuccessful attempt to suppress drugs seized from him during a motor vehicle stop and the statement he gave to police following his arrest, defendant Albert Mas proceeded to trial. A jury convicted him of third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10(a)(1). At sentencing, the judge revoked defendant's four-year probationary sentence on a previous conviction of third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b), and sentenced him to concurrent three-year prison terms on the drug conviction and the probation violation. Defendant raises the following points for our consideration on appeal:

POINT I

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE UNLAWFUL DETENTION OF THE PASSENGER.

(Partially Raised Below)

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OTHER OFFENSES ALLEGEDLY COMMITTED BY THE DEFENDANT.

We affirm.

The testimony presented during the suppression hearing revealed the following facts. While on patrol shortly after midnight on December 28, 2006, Plainfield narcotics detective Michael Black and his partner stopped the driver of a speeding van. According to Black, he recognized the van's front seat passenger as defendant. Recalling that defendant had previously been arrested for drug and weapons offenses, and believing that a warrant existed for his arrest, Black confirmed the existence of the arrest warrant by checking with the police records bureau. After confirming the existence of the warrant, Black arrested defendant, searched him, and seized from his waistband a "quantity of . . . cooked up or base cocaine."

Black and his partner transported defendant to police headquarters where they began the "booking process" by asking defendant about his date of birth, height, weight, marital status, and employment. When asked if he was currently employed, defendant responded that "he quit his job and that's why he had the drugs in his possession and sells crack now."

A Union County grand jury indicted defendant and charged him with third-degree possession of a CDS, cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a CDS, cocaine, with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and third-degree possession of a CDS, cocaine, with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three). Defendant subsequently filed a motion to suppress the drugs and his statement, which the court denied. Defendant proceeded to trial, and the jury convicted him on count one and acquitted him on the remaining counts. As we previously noted the court sentenced him to three years imprisonment and imposed appropriate fines and penalties. The court also revoked his probation on a previous weapons offense and sentenced him to a concurrent three-year prison term.

We first address defendant s contention in Point I that the police unlawfully detained him. He makes two arguments in support of his contention: first, the stop was "pretextual"; second, the police did not have an "articulable reasonable suspicion to believe that there was an outstanding warrant to justify [his] detention while [they] conducted their investigation." We reject both arguments.

As to the first argument that the vehicle stop was pretextual, our scope of review of the trial court s factual findings and credibility determinations is limited. We must uphold the court's factual findings if they are "supported by sufficient credible evidence in the record." State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)), aff'd, 206 N.J. 39 (2011). We "should give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). Our review of a judge's legal conclusions, however, is plenary. See Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).

Detective Black was the only witness to testify at the suppression hearing. Through cross-examination defendant established that Black had initially prepared a report documenting defendant s drug arrest, but did not document the motor vehicle stop until he wrote a supplemental report thirteen months later at the request of the prosecutor. Defendant also established that the police did not ticket the van s driver. Based on that cross-examination defendant argues that the vehicle stop was pretextual.

Defendant's argument depends upon a determination of Black's credibility. The trial court found Black s testimony credible in its entirety and also found that Black and his partner stopped the van's driver for speeding. Because the court s factual findings and credibility determinations are supported by substantial evidence in the record and entitled to our deference, we will not disturb them on appeal. Handy, supra, 412 N.J. Super. at 498.

We also reject defendant s argument that his suppression motion should have been granted because the police did not have an articulable reasonable suspicion to detain him. The Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution prohibit unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, 7. For federal and state constitutional purposes, when the police stop a car's driver for a motor vehicle offense they seize not only the driver, but also the passengers. Brendlin v. California, 551 U.S. 249, 251, 127 S. Ct. 2400, 2403, 168 L. Ed. 2d 132, 136 (2007); State v. Sloane, 193 N.J. 423, 431 (2008). However, running a National Crime Information Center (NCIC) check on the driver or the passengers is not a search within the meaning of the federal and state constitutions. Sloane, supra, 193 N.J. at 436. Running an NCIC check is within the scope of a valid motor vehicle stop "so long as it does not unreasonably extend the time of the stop." Id. at 437-38.

We find no significant distinction between the police running an NCIC check, which the Court upheld in Sloane, and checking with a records bureau for an arrest warrant as the police did here. Critical to the Court's holding in Sloane was "the fact that the NCIC database is comprised of matters of public record." Id. at 436. Such records include arrest warrants. Ibid. (citing Gist v. Macon Cnty. Sheriff's Dep't, 671 N.E.2d 1154, 1161 (Ill. App. Ct. 1996), appeal denied, 677 N.E.2d 965 (Ill. 1997)). Additionally, as was the case in Sloane with the NCIC check, there is no evidence here that the records bureau check unreasonably prolonged either the vehicle stop or defendant's detention. Sloane, supra, 193 N.J. at 438. We therefore reject defendant s argument that his detention violated the federal and state constitutions.

We turn to Point II in which defendant argues he was denied due process and a fair trial when Black testified about "other offenses allegedly committed by [him]." The State called two witnesses at trial: Black and a detective with expertise in sales, packaging, and distribution of CDS. To explain why he arrested defendant, Black testified that he recognized defendant and believed there was an active arrest warrant for him, so he checked with headquarters and learned "it was a motor vehicle warrant . . . ." Defendant did not object to the testimony but now claims the mention of the motor vehicle warrant deprived him of due process and a fair trial. We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following concerning defendant's argument.

Because defense counsel did not object to the testimony we review the issue under the plain error standard of review. Under that standard, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. See also State v. Macon, 57 N.J. 325, 336 (1971). "Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008)(internal citations and quotations omitted); see also State v. Daniels, 182 N.J. 80, 95 (2004). One reason we apply that standard is that "[i]t may be fair to infer from the failure to object . . . that in the context of the trial the error was actually of no moment." Macon, supra, 57 N.J. at 333. Where the proofs are otherwise overwhelming, errors in the admission of evidence may be harmless. State v. Gillispie, 208 N.J. 59, 93 (2011).

Black testified about the warrant to explain why he arrested defendant, the passenger in a van. Defendant has not explained, other than in the most conclusory fashion, how Black s reference to a motor vehicle warrant was clearly capable of producing an unjust result in his trial for a drug offense. Even if the reference to the motor vehicle offense and the absence of a limiting instruction were error, proof of defendant s guilt was overwhelming. When arrested he had a quantity of cooked up cocaine in his pocket and he admitted to detectives that he was selling drugs. Black s reference to the motor vehicle warrant was not plain error.

Affirmed.