STATE OF NEW JERSEY v. GILBERT CRUZ

NOT FOR PUBLICATION WITHOUT THE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.

GILBERT CRUZ, JR., a/k/a

GILBERT CRUZ and

GILBERT ORTIZ,

Defendant-Appellant.

_______________________________________________________________

November 6, 2014

Submitted April 2, 2014 Decided

Before Judges Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-12-2205.

Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).

Gaetano T. Gregory, Special Deputy Attorney General/Special Acting Essex County Prosecutor, attorney for respondent (Michelle Erin Ditzhazy, Special Deputy Attorney General/Special Acting Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

MAVEN, J.A.D.

After his motion to suppress was denied, defendant Gilbert Cruz entered a plea of guilty to one count of possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(12). The court sentenced defendant to two years of noncustodial probation with conditions, and assessed appropriate fines and penalties. The sole issue defendant raises in this appeal is whether the trial court erred in its credibility findings in the suppression hearing. We reject that contention and affirm.

Judge Patrick J. Arre conducted a three-day suppression hearing during which he heard testimony from two police officers, Ray Weber and Robert Baker, defendant, and a lay witness. We derive the facts from the record of the suppression hearing.

On July 7, 2011, at approximately 11:00 a.m., Jersey City Police Officer Ray Weber observed defendant exit from a gold Infiniti parked on Clinton Avenue and engage in a narcotics transaction with another man, Rosario. Officer Robert Baker and another officer placed defendant under arrest for the narcotics transaction, and read him his Miranda1 rights.

Defendant inquired about what would happen to his friend's vehicle. He was advised by the officers that the gold Infiniti would be towed and impounded, then a warrant would be obtained to search the vehicle for narcotics. Defendant then told Officer Baker that there was marijuana in a stuffed animal in the rear seat of the vehicle. Defendant verbally consented to the search of the vehicle, told the officer where to locate the keys, and which key opened the vehicle door. Officer Baker then entered the car and retrieved the stuffed animal with twelve "red tinted Ziploc bags of what appeared to be marijuana."

There was differing testimony as to what happened to the vehicle after the drugs were recovered. Officer Baker testified that after the car was searched, the police handed the keys over to the owner at the scene. The vehicle owner's son testified that he picked up the vehicle from the precinct.

In a comprehensive oral decision issued on July 23, 2012, Judge Arre denied defendant's motion to suppress the drugs found in the vehicle. In denying the motion to suppress, the judge resolved the credibility issues in favor of the State. He found the officers credible as to the lawfulness of the investigatory stop, defendant's arrest, and the search of the vehicle.

On appeal, defendant raises one point of error for our consideration

THE DENIAL OF [DEFENDANT'S] MOTION TO SUPPRESS VIOLATED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS.

Defendant argues that the motion judge should have discredited all of Officer Baker's testimony because his testimony with respect to where the vehicle was retrieved was inconsistent with that of the vehicle owner's son.

A trial judge's factual findings must be sustained so long as they are supported by sufficient, credible evidence in the record. See State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). The judge's findings as to the credibility of the witnesses are also entitled to our deference. State v. Yohnnson, 204 N.J. 43, 62 (2010). Applying those standards to the judge's thorough and comprehensive findings, we conclude defendant's argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).