STATE OF NEW JERSEY v. RONALD PAYNE

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1589-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD PAYNE,

Defendant-Appellant.

_______________________________

November 18, 2014

Submitted November 12, 2014 Decided

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-09-2289.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for two counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and third-degree resisting arrest by force against a law officer, N.J.S.A. 2C:29-2a(3)(a). We affirm the convictions, but remand directing the judge to address defendant's request for additional jail credit.

The police received a report that a man possessed a gun. They arrived at a location in Belleville and saw defendant running towards a Honda Accord. Defendant entered the rear passenger-side door of the Accord and the Accord sped away. The police activated their siren and overhead lights and pursued the Accord. Defendant pointed a gun at the officers during the chase.

A video camera mounted on the dashboard of the police vehicle documented the pursuit. The police eventually stopped the Accord in Newark. They approached the vehicle and forcibly removed defendant from the back seat. The video shows that the police observed two guns in plain view: a black automatic handgun found on the back seat; and a silver handgun, covered in blood, located behind the driver's seat.

Defendant moved to suppress the weapons. The judge viewed the video, concluded that a hearing was unnecessary, and denied the motion finding that the police seized the weapons in plain view. Defendant pled guilty and, following the plea agreement, the judge imposed an aggregate five-year prison term with three years of parole ineligibility, and awarded defendant 720 days of jail credit.

Defendant raises the following arguments on appeal

POINT I

THE TRIAL COURT ERRED BY DENYING [DEFENDANT'S] MOTION TO SUPPRESS EVIDENCE WITHOUT AN EVIDENTIARY HEARING, VIOLATING HIS RIGHT TO DUE PROCESS AND A FULL AND FAIR HEARING ON HIS MOTION.

POINT II

THE TRIAL COURT ERRED BY FAILING TO AWARD JAIL CREDIT[] TO [DEFENDANT] BECAUSE OF A PAROLE WARRANT.

After carefully considering the record and the briefs, we conclude that defendant's contention regarding his motion to suppress is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following brief remarks.

A defendant must show that there are material facts in dispute to be entitled to an evidentiary hearing. R. 3:5-7(c); State v. Hewins, 166 N.J. Super. 210, 213-15 (Law Div. 1979), aff'd, 178 N.J. Super. 360, 361 (App. Div. 1981). Here, defendant has not shown that material facts are in dispute. In light of the overwhelming proof documented by the video, which we have also watched, we see no error in deciding the motion without a hearing.

When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted). The trial court's legal conclusions are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). Following these well-settled principles, we conclude that the judge's findings are supported by sufficient credible evidence in the record.

As to defendant's second argument, that he is entitled to additional jail credit, the State agrees that a remand is needed to determine if defendant's parole violation was adjudicated, and if so, what impact that would have on his request for additional jail credit.

We affirm the convictions and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.