STATE OF NEW JERSEY v. JAMES M. DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES M. DAVIS,

Defendant-Appellant.

_______________________________

November 1, 2013

Submitted: October 23, 2013 Decided:

Before Judges Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 08-07-1189 and 08-07-ll97.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

AndrewC. Carey,Acting MiddlesexCounty Prosecutor,attorney forrespondent (BrianD. Gillet,Special DeputyAttorney General/ActingAssistant Prosecutor,and SusanBerkow, SpecialActing AssistantProsecutor/Special Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After the trial court denied his motion to suppress evidence in connection with Middlesex County Indictment Nos. 08-07-1189 and 08-07-1197, defendant James Davis pled guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; third-degree possession of a controlled dangerous substance (CDS) with intent to distribute on or near school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a; second-degree possession of a firearm while committing a CDS offense, N.J.S.A. 2C:39-4.1; and second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7b. In accordance with the negotiated plea, the judge sentenced defendant to an aggregate term of fifteen years, with an eight-year period of parole ineligibility. The remaining counts of the indictments were dismissed. Appropriate fines and penalties were also assessed. We affirm.

Officer William Lopez of the Perth Amboy Police Department was the only witness to testify at the suppression hearing. On March 8, 2008, Officer Lopez was on patrol in a marked police vehicle. At approximately 1:30 p.m., he received a dispatch stating that a citizen had called 9-1-1 to report that a man in a barber shop had a weapon. The caller described the individual as a "stocky" black male, with dreadlocks, and a brown jacket.

Officer Lopez drove to the barber shop and arrived within five minutes of receiving the dispatch. He observed an individual, later identified as H.D.,1 standing in the doorway of the shop. H.D. was pointing at a stocky black male, with dreadlocks, who was wearing a brown jacket. As he pointed, H.D. yelled to the officer, "that's him, that's him." The individual, later identified as defendant, began to walk away "in a brisk manner." Officer Lopez walked toward defendant and asked him to stop. Defendant slowed his gait, but continued to walk away from the officer.

After asking defendant "at least two or three times" to stop and talk to him, the officer told defendant to put his hands on the wall of a building. Defendant did not immediately comply, but then did so. Officer Lopez testified he conducted a patdown search of defendant "for my safety as well as his." The officer felt "[a] heavy object, a bulge" on the left side of defendant's jacket. Based on his training, Officer Lopez believed the object was a handgun.

Officer Lopez testified that defendant "began to struggle" and "started pulling" the officer's hand away from the object. By that time, Sergeant Gregowicz had arrived to assist and both officers proceeded to "safely handcuff" defendant. Officer Lopez was then "able to pull out a handgun from inside" defendant's jacket. The handgun was loaded with six hollow point bullets. After the handgun was seized, another officer searched defendant and found two bags containing a total of fourteen packets of crack cocaine.

The judge denied defendant's motion to suppress the handgun and cocaine seized from him. Based upon the citizen's report, the judge found that Officer Lopez had an "articulable suspicion" that defendant was involved in criminal activity and, therefore, the officer was permitted to stop and frisk him. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE THE OFFICER LACKED AN ARTICULABLE REASONABLE SUSPICION TO STOP THE DEFENDANT, AND LACKED JUSTIFICATION TO CONDUCT A PAT-DOWN. U.S. CONST. AMENDS. IV & XIV; N.J. CONST. (1947) ART. I, PARA. 7.

POINT II

THE TRIAL COURT ERRED IN IMPOSING A CONSECUTIVE SENTENCE FOR THE "CERTAIN PERSONS" OFFENSE, NECESSITATING MODIFICATION OF THE SENTENCE OR A REMAND FOR RESENTENCING.

We reject these contentions and affirm.

Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J.1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Rockford, 213 N.J. 424, 440 (2013) (quoting Robinson, supra, 200 N.J. at 15). Additionally, we defer to a trial judge's findings that are "'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original) (quoting Robinson, supra, 200 N.J. at 15). We do not, however, defer to a trial judge's legal conclusions, which we review de novo. Ibid. We also review de novo mixed questions of law and fact. In re Malone, 381 N.J. Super.344, 349 (App. Div. 2005).

The police may, without a warrant, temporarily detain and frisk a person for possession of a weapon if they have a reasonable and articulable suspicion that the person is engaged in unlawful activity and may be armed. Terry v. Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 1884-85, 20 L. Ed. 2d 889, 911 (1968); State v. Elders, 192 N.J. 224, 247 (2007). "A suspicion of criminal activity will be found to be reasonable only if it is based on 'some objective manifestation that the person [detained] is, or is about to be engaged in criminal activity.'" State v. Williams, 410 N.J. Super. 549, 555 (App. Div. 2009), certif. denied, 201 N.J. 440 (2010) (alteration in original) (quoting State v. Pineiro, 181 N.J. 13, 22 (2004)). "In making this determination, a court must consider '[t]he totality of the circumstances.'" Ibid. (alteration in original) (quoting Pineiro, supra, 181 N.J. at 22).

In this case, the State justified the warrantless patdown search of defendant as a temporary Terry stop and frisk for a weapon. The trial court found that Officer Lopez's suspicion of criminal activity was reasonably based on the information received from a citizen at the scene. We agree.

Our Supreme Court has noted that an ordinary citizen reporting crime to the police is not viewed with suspicion, and courts assume that a further demonstration of reliability is not necessary to justify a stop and frisk of the person identified in the citizen's report. State v. Amelio, 197 N.J. 207, 212-13 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009); State v. Stovall, 170 N.J. 346, 362 (2002). "There is an assumption grounded in common experience that such a person is motivated by factors that are consistent with law enforcement goals." State v. Davis, 104 N.J. 490, 506 (1986); see also Adams v. Williams, 407 U.S. 143, 146-47, 92 S. Ct. 1921, 1923-24, 32 L. Ed. 2d 612, 617 (1972) (information officer received on the street from a known informant had sufficient indicia of reliability to justify reaching into vehicle to remove gun from the suspect's waistband).

Here, the police received a report from an identified citizen regarding present criminal activity at a specific location. The information H.D. provided was immediately confirmed by Officer Lopez's own observations at the scene. The officer had no reason to discredit the information and, under the totality of the circumstances, he certainly had a right to approach defendant to investigate further. The report that defendant had a weapon, Officer Lopez's observation that defendant was attempting to "hastily" leave the area once he was identified by H.D. outside the barber shop, and defendant's failure to comply with the officer's reasonable directions, provided specific justification for Officer Lopez to stop defendant and conduct "a carefully limited search of [his] outer clothing" to ensure the safety of the officer. Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1885, 20 L. Ed. 2d at 911.

Defendant argues that H.D.'s tip did not provide the reasonable suspicion necessary to permit Officer Lopez to stop and frisk him, citing Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000) and State v. Matthews, 398 N.J. Super. 551 (App. Div.), certif. denied, 196 N.J. 344 (2008). We disagree. In those cases, the tips were made anonymously by telephone, with no personal police contact with the tipster. See J.L., supra, 529 U.S. at 268, 120 S. Ct. at 1377, 146 L. Ed. 2d at 258-59; Matthews, supra, 398 N.J. Super. at 559. Here, however, the officer met H.D., the man who provided the information, at the scene. Thus, unlike an anonymous telephone caller, H.D. was not an unknown source of information without any "indicia of reliability." See J.L., supra, 529 U.S. at 271, 120 S. Ct. at 1379, 146 L. Ed. 2d at 260; Matthews, supra, 398 N.J. Super. at 560. Therefore, we discern no basis for disturbing the trial judge's decision to deny defendant's motion to suppress.

Finally, defendant argues his sentence was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984). We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record and applied the correct sentencing guidelines enunciated in the Code. We discern no basis in the record to disturb the judge's decision to impose consecutive sentences for defendant's separate offenses. Because there is neither clear error on the judge's part in his adherence to the sentencing guidelines, nor a sentence imposed which, under the circumstances, shocks the conscience, there is no reason for appellate intervention. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989).

1 We refer to the citizen by initials to protect his privacy.