STATE OF NEW JERSEY v. DARNELL D. SCOTT

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NOT FOR PUBLICATION WITHOUT THE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.

DARNELL D. SCOTT,

Defendant-Appellant.

________________________________

October 16, 2014

 

Argued: October 7, 2014 Decided

Before Judges Koblitz, Haas and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-09-01365.

Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the brief).

Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew Carey, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief; Susan Berkow, Assistant Prosecutor, on the brief).

PER CURIAM

A Middlesex grand jury charged defendant Darnell Scott in three counts of an eight-count indictment with fourth-degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d (count six); second-degree unlawful possession of a handgun; N.J.S.A. 2C:39-5b (count seven); and fourth-degree unlawful possession of prohibited devices (hollow-point bullets), N.J.S.A. 2C:39-3f (count eight). Co-defendant Content and another individual were also named in the indictment.1

Prior to trial, the judge granted defendant's motion to suppress statements he made to the police following his arrest. The judge denied the State's motion for reconsideration. Defendant did not file a motion to suppress the knife and handgun.

Defendant and Content were jointly tried before a jury.2 The jury found defendant guilty of fourth-degree unlawful possession of a knife (count six), and second-degree unlawful possession of a handgun (count seven). The jury found defendant not guilty of count eight.3

The judge sentenced defendant to a six-year term of imprisonment, with a three-year period of parole ineligibility, on count seven, and a concurrent twelve-month term on count six. Appropriate fines and penalties were assessed. This appeal followed.

On appeal, defendant raises the following contentions

POINT ONE

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A SUPPRESSION MOTION WHERE DEFENDANT WAS SUBJECTED TO A SEARCH BASED ON MERE PROXIMITY TO HIS CO-DEFENDANT WHO HAD BEEN ARRESTED FOR DISORDERLY CONDUCT DURING AN INVESTIGATORY STOP.

POINT TWO

THE RECORD DOES NOT SUPPORT THE TRIAL COURT'S WEIGHING OF AGGRAVATING FACTORS 3 AND 9 BECAUSE THIS IS DEFENDANT'S FIRST INDICTABLE CONVICTION AND THERE IS NO EVIDENCE THAT DEFENDANT PRESENTS A HEIGHTENED RISK OF REOFFENDING.

After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

The State developed the following proofs at trial. At approximately 2:00 a.m. on May 18, 2010, Officers Renda and Pomales received a dispatch reporting that four individuals were knocking over garbage cans. The officers drove to the location and observed "all kinds of garbage cans thrown out into the street." The officers followed the "path of destruction" until they saw four individuals walking down the street. Officer Renda testified that Content and Scott were in the group. Content was carrying three "white plastic lawn chairs" and the other three men were walking behind him. The officer observed two other chairs on a lawn and stated it looked "like somebody had just thrown them on the lawn, or knocked them over[.]" The officers made a U-turn, stopped their car, and got out to speak to the four men.

Officer Renda approached Content and asked him "where is he coming from, what's going on, that sort of thing." Content stated he had borrowed the chairs from a friend and was returning them. Content was not able to tell the officer his friend's name or the address where he lived. When the officer asked Content how many chairs he had borrowed, Content replied, "how many fucking chairs does it look like?" Officer Renda radioed in to headquarters to conduct a warrant check on Content and Officers Cassens, Wargocki, Moody, and Kaminsky arrived at the scene around that time.

As they waited for the results of the warrant search, Officer Cassens began to ask the other three men for their names and addresses. Officer Renda continued to talk with Content, "trying to find out if I [could] jog his memory, as far as his friend's name and whatnot." Officer Renda testified that, in response to one of his questions, Content "tells me to shut the fuck up, he shouts it, you know loud." Due to the lateness of the hour in the "quiet neighborhood[,]" Officer Renda told Content "you're under arrest for disorderly conduct." When Officer Renda reached to get his handcuffs, Content pushed the officer and ran at Officer Cassens, who grabbed him around the waist as they fell to the ground. The other officers joined in the effort to subdue Content.

Officer Renda then realized "there are still three more people behind us." He left Content and walked toward the three men and ordered "them to get on the ground." At first, none of the men complied. The officer put his hand on his weapon and the men then "got down on the ground."

By this time, the other officers had used pepper spray to subdue and handcuff Content and the officers carried him to a squad car. As they did, Officer Renda testified that one of Content's shoes fell off and "something falls out of his pocket." After Content was placed in the car, Officer Renda went back and found a "hard plastic" object that resembled "brass knuckles" or a "claw."

Officer Wargocki then approached Scott and the other two men as they lay on the ground. As he did so, defendant "grabbed [his] attention" because the officer saw "a wooden handle kind of stick, say maybe about five to six inches protruding from [defendant's] back pocket. It was sticking out." The officer testified that the object "almost looked like one of those small souvenir bats" and that "[i]t had a bandanna wrapped around it." Officer Wargocki stated, "When I walked up to him, I removed it for my safety." When he did so, the officer found that "[i]t was actually a knife, a serrated type of knife, in a wooden case, with a thin wooden handle." The knife, including the handle which the officer saw protruding from defendant's pocket, was approximately "seven or eight inches" in length. The knife sheathe had the words "fisherman's delight" on it and the officer described it as "a fishing knife."

After removing the knife, Officer Wargocki told defendant he was under arrest and handcuffed him. While defendant was still on the ground, the officer attempted to search defendant, but defendant began moving the "upper torso area of his body" away from the officer and "moving into like a fetal position." Another officer helped Officer Wargocki get defendant into a standing position and Officer Wargocki "checked him." As he did, Officer Wargocki "felt like a hard object in the center, in the mid-section of [defendant's] jeans." The officer retrieved the object from defendant's waistband and found it was a "nine millimeter, semi-automatic" handgun. Subsequent forensic tests demonstrated that the weapon was operable. It was loaded with six hollow-point bullets, with one round inside the chamber. Defendant did not have a permit for the handgun.

Defendant did not testify. He presented the testimony of one of the other men involved in the incident. The witness stated that he and defendant had come from Brooklyn to Content's house "to record music." "Because there weren't many chairs in the house[,]" the witness said the men went to another individual's house to borrow some. He did not know that person or exactly where he lived, and stated the group borrowed "about four chairs."

After finishing the recording session, the witness said the men went to take the chairs back. As they did, the witness testified he "foolishly started kicking over the garbage cans." The other three men joined in. The witness was ahead of the group and, at one point, looked back. He saw "everybody crowded around these garbage cans that were being knocked over." The witness said a gun was on the ground and defendant was "the closest one to it" and picked it up. The group "discussed it right away" and decided to "turn it into the precinct, and accept a cash reward for it."

About a minute or two later, the witness saw the police and he threw the chairs he was carrying onto a lawn. The witness stated that he did not "say anything about the gun" while he and defendant were "on the ground," because "[i]t must have slipped my mind[.]" The witness also stated he did not give a statement to anyone about the incident until the day before he testified.

II.

In Point I, defendant argues that his trial attorney was ineffective because he failed to file a motion to suppress the knife and gun as evidence at trial. We generally decline to consider claims of ineffective assistance of counsel on direct appeal because they often involve matters for which there is not a complete record. State v. Rambo, 401 N.J. Super. 506, 525 (App. Div.), certif. denied, 197 N.J. 258 (2008) (citing State v. Preciose, 129 N.J. 451, 460 (1992)). Here, however, defendant states that "[h]ad counsel filed such a motion, presumably the evidence adduced at the motion hearing would have mirrored that presented at trial." The State concurs. Under those circumstances, we will proceed to consider defendant's claim of ineffective assistance of trial counsel.

We apply the well-settled two-prong test for establishing ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (stating that a defendant must establish (1) his or her counsel's performance was deficient and he or she made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) he or she was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

A defendant is obliged to establish the right to relief by a preponderance of the credible evidence. Preciose, supra, 129 N.J. at 459 (1992). The court must consider the defendant's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Where, as here, a defendant asserts his or her attorney was ineffective by failing to file a motion, he or she must establish that the motion would have been successful. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007). For example, where a defendant complains his or her counsel should have filed a suppression motion, "the defendant not only must satisfy both parts of the Strickland test but also must prove that his [or her] Fourth Amendment claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998).

Thus, we must determine whether a motion to suppress the knife and handgun would have been successful under the circumstances presented in this case. The standards governing the constitutionality of field inquiries, investigatory detentions or stops and protective frisks for weapons are well-settled. "The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures." State v. Privott, 203 N.J. 16, 24 (2010). Based on the minimal nature of the intrusions involved, these encounters are permissibly conducted without a warrant or probable cause.

A field inquiry unaccompanied by compulsion to respond to questions or limitation on the person's freedom to move is not an intrusion sufficient to implicate the constitutional protection. Id. at 24; State v. Elders, 192 N.J. 224, 246 (2007). Thus, no justification is required. Nevertheless, when an officer conducting a field inquiry acts in a manner that would lead a reasonable person to believe he is not free to leave, there is a seizure, albeit brief and minimally intrusive. Id. at 246-47; State v. Nishina, 175 N.J. 502, 510-11 (2003). Such a seizure is unreasonable unless "it is based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriquez, 172 N.J. 117, 126-27 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 20 L. Ed. 2d 889, 906 (1968)).

A frisk of a person whom an officer has detained on reasonable suspicion is an additional intrusion that requires additional justification, because it "'constitutes a severe, though brief, intrusion upon cherished personal security.'" Privott, supra, 203 N.J. at 29 (quoting Terry, supra, 392 U.S. at 24-25, 88 S. Ct. at 1882, 20 L. Ed. 2d at 907-08). The frisk permitted is not one "'to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence[.]'" Privott, supra, 203 N.J. at 25 (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 617 (1972)). "Because the intrusion is designed to protect the officer's safety," it is reasonable only if "'a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" State v. Roach, 172 N.J. 19, 27 (2002); State v. Valentine, 134 N.J. 536, 543 (1994) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). In both instances, courts assess the adequacy of the evidence offered to establish a basis for the requisite suspicion and concern for safety, in light of "all the facts and circumstances of the case." Id. at 546.

Applying these principles, we conclude defense counsel was not ineffective by failing to file a motion to suppress the knife and handgun, because we are unconvinced the motion would have been successful. At 2:00 a.m., the police received a report of four men knocking over trash cans. When they arrived at the scene, the officers saw defendant, Content, and two other men. Content was carrying three lawn chairs and the officers saw other chairs that had been thrown onto a lawn. Under these circumstances, the officers were certainly permitted to conduct a field inquiry and attempt to question the men about the debris in the area. Elders, supra, 192 N.J. at 246.

Content was not able to give a coherent explanation of what the men were doing in the area because he claimed he did not know the name of the friend who loaned him the chairs or the address where the group was going to return them. At this point, the officers had "a reasonable suspicion [that] criminal activity" was underfoot in view of the "path of destruction" they encountered and Content's failure to account for the group's presence in the area. Rodriquez, supra, 172 N.J. at 126-27. Thus, assuming that defendant and the other men were not free to leave the scene at that point, the officers' investigatory stop was not unconstitutional. Ibid.

Content became belligerent as he spoke to Officer Renda and loudly shouted an obscenity at him. When the officer attempted to arrest Content for disorderly conduct, he charged another officer and all of the officers on the scene assisted in subduing him. When Officer Renda realized there were still three other individuals on the scene behind them, he ordered the men, including defendant, to get on the ground. They did not immediately comply, but did so only after Officer Renda put his hand on his weapon. While the officers were carrying Content to a squad car, a "hard plastic" object resembling "brass knuckles" or a "claw" fell out of his pocket.

When Officer Wargocki approached defendant as he lay on the ground, he immediately observed a wooden stick protruding five to six inches from his back pocket. The officer testified he removed the object from defendant's pocket "for my safety." When he did so, he found it was a serrated knife. We conclude that Officer Wargocki's action in removing the knife from defendant's pocket was a constitutional Terry frisk. A reasonable officer, who had just been involved in subduing one suspect who was found to have been carrying a weapon, would certainly have been warranted in believing that his safety was in danger after observing the long wooden handle of the object protruding from defendant's pocket. Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909.

Once Officer Wargocki found the knife, he arrested defendant for unlawful possession of a weapon. Defendant argues that the object was "a fishing knife" rather than a weapon and, therefore, probable cause did not exist to arrest him. We disagree.

Contrary to defendant's contention, the State did not have to prove that defendant intended to use the knife as a weapon. State v. Riley, 306 N.J. Super. 141, 150 (App. Div. 1997) (holding that "if the implement is a weapon, the question of whether defendant intends to use it lawfully or unlawfully is immaterial"). The "surrounding circumstances - - such as the size, shape and condition of the knife, the nature of its concealment, the time, place and actions of the carrier when found in his possession" can "indicate that possession of a knife may be 'not manifestly appropriate' for its lawful use." State v. Lee, 96 N.J. 156, 162 (1984) (quoting State v. Green, 62 N.J. 547, 560 (1973)). The knife in this case was eight inches in length, had a serrated edge, and a wooden handle. Defendant was not using it for "fishing," but rather was carrying it in his back pocket on a street at 2:00 a.m. Under these circumstances, we are satisfied Officer Wargocki had probable cause to arrest defendant for unlawful possession of the knife.

Once Officer Wargocki arrested defendant, his seizure of the handgun from defendant's waistband was plainly constitutional under the well-established Fourth Amendment exception authorizing the warrantless search of persons incident to their lawful arrest. See Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969); State v. Dangerfield, 171 N.J. 446, 461 (2002). In the alternative, the seizure was permitted as a simple continuation of the Terry frisk that had already resulted in the discovery of the knife.

Based on the totality of the circumstances, we conclude that, if defense counsel had filed a motion to suppress either the knife or the handgun, it would not have been successful. Accordingly, defense counsel was not ineffective due to his failure to file such a motion. O'Neal, supra, 190 N.J. at 619. We therefore reject defendant's contentions under Point I.

In Point II, defendant argues that 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, applied the correct sentencing guidelines enunciated in the Code, and the application of the factors to the law do not constitute such clear error of judgment as to shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989). Accordingly, we discern no basis to second-guess the sentence.

Affirmed.

1 The grand jury charged Content with fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(5) (count one); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (count two); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count three); and fourth-degree unlawful possession of a weapon ("a six-spiked plastic claw"), N.J.S.A. 2C:39-5d (count four). The other individual was charged with fourth-degree unlawful possession of a weapon ("a ratchet or tire iron"), N.J.S.A. 2C:39-5d (count five).

2 However, Content did not attend the trial and was tried in absentia. The third individual never appeared for his pre-arraignment conference and was deemed a fugitive.

3 The jury found Content guilty of counts two and three, and not guilty of counts one and four. The record does not disclose the final disposition of his convictions.