STATE OF NEW JERSEY v. ABUBAKARR KING

NOT FOR PUBLICATION WITHOUT THE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.

ABUBAKARR KING, a/k/a

ABUBAKAR KING,

Defendant-Appellant.

______________________________________

December 22, 2014

Submitted September 30, 2014 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment

Nos. 11-01-0058 and 12-02-0273.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah Ross, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence seized in a warrantless search, defendant Abubakarr King pled guilty to unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and aggravated assault, N.J.S.A. 2C:12-1b, both second-degree crimes. In accordance with a negotiated agreement, the judge sentenced defendant to a term of five years on the gun charge, with a mandatory three-year period of parole ineligibility, and to a concurrent term of seven years on the aggravated assault subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, along with the required assessment of fees and penalties. As authorized by Rule 3:5-7(d), defendant appeals from the denial of his motion to suppress the handgun found in his car and challenges his sentence as excessive. Finding no basis to disturb Judge Diane Pincus's factual findings or legal conclusions, we affirm.

Officers Katsoulis and Hanrahan of the North Brunswick Police Department were the only witnesses to testify at the suppression hearing. According to Officer Katsoulis, he was responding to a dispatch regarding a complaint of a dark-colored car with a loud muffler in the area of Heartland Commons Road in North Brunswick on November 12, 2010, when he saw a car matching that description traveling at forty miles per hour in a twenty-five mile zone. After pulling the car over, the officer approached the driver, later identified as defendant, explained the reason for the stop and asked for his credentials. Defendant gave the officer a provisional license and an insurance card but not the car's registration.

Because the officer could not access the statewide database on the mobile data terminal in his patrol car, he could not enter the car's license plate to obtain registration information. Accordingly, he asked the driver several questions about who owned the car and why he had not handed over the registration. After receiving inconsistent answers to his questions, Officer Katsoulis asked defendant to step out of the car.

As defendant was getting out, Officer Hanrahan arrived. Officer Katsoulis continued to question defendant. When defendant gave evasive answers to questions about where he had come from and who owned the car, the officers asked defendant to stand out of the road between his car and Officer Katsoulis's patrol car and to place his hands on the trunk of his car. When defendant did so, Officer Katsoulis walked back to his patrol car to call headquarters for information about the car. Officer Hanrahan went back to defendant's car to see if he could locate the registration. Not finding the registration in the visor or the center console, the officer moved to the glove box. As the officer was about to open the compartment, defendant ran off.

Officer Katsoulis gave chase in his patrol car while Officer Hanrahan searched the glove compartment for the registration. Moving the black mesh bag he found there to get at the papers underneath, the officer felt a metal object, which he believed to be a gun. Opening the bag, he found a nine millimeter Glock handgun. Ballistics testing later revealed the gun to have been used in the shooting of two teenage girls some weeks prior.1 The registration was in the glove compartment under the gun. Defendant was arrested after being apprehended by some concerned citizens in a backyard not far from where he had been pulled over.

Judge Pincus denied defendant's motion to suppress in an oral opinion. Finding no difficulty in determining that defendant was lawfully stopped for a motor vehicle infraction, asked to step out of the car when he could not produce the registration, and that his inconsistent answers to simple questions, including ownership of the car, justified the officers lengthening the stop's duration, the judge turned to Officer Hanrahan's search of the glove box and the mesh bag.

Relying on State v. Patino, 83 N.J. 1, 12 (1980), the judge found that Officer Hanrahan was lawfully searching defendant's glove box for the registration when he saw the black mesh bag. The judge found that although

the officer was searching the glove compartment when he picked up the bag, he was not searching the bag. The officer did not manipulate the bag in an exploratory manner, he merely moved the bag with the purpose of retrieving the documents underneath. This may be a fine distinction, but it is an important one given the consequences if this court were to characterize the officer's actions as a search of the bag. Thus, because Officer Hanrahan was not intending to find a gun when he moved the bag, his discovery of the gun based on what he felt was certainly inadvertent.

Additionally, Officer Hanrahan testified that when he moved the bag to retrieve the documents underneath[,] he felt what he believed to be a gun. Based on the totality of the circumstances[,] I find that Officer Hanrahan had probable cause to associate what he felt was contraband, therefore seizure of the bag was lawful.

Determining the seizure justified under the "plain-feel" doctrine, Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137, 124 L. Ed. 2d 334, 345-46 (1993); State v. Toth, 321 N.J. Super. 609, 614-15 (App. Div. 1999), certif. denied, 165 N.J. 531 (2000), the judge found that the officer's opening of the bag after detecting the gun did not violate defendant's rights under the Fourth Amendment and denied defendant's motion to suppress the gun.

Defendant raises the following issues on appeal.

POINT I

BECAUSE OFFICER HANRAHAN MOVED THE OPAQUE BAG HE FOUND IN THE GLOVE COMPARTMENT AND THE STATE FAILED TO ESTABLISH WHETHER OR NOT HE MANIPULATED THE CONTENTS OF THE BAG, THE DISCOVERY OF THE GUN WAS NOT JUSTIFIED BY THE PLAIN-FEEL DOCTRINE.

POINT II

[DEFENDANT'S] SENTENCE IS EXCESSIVE BECAUSE THE JUDGE ERRED IN FAILING TO FIND THAT [DEFENDANT'S] AGREEMENT TO TESTIFY AGAINST HIS CO-DEFENDANTS WAS A SIGNIFICANT MITIGATING FACTOR AND BECAUSE THE NEED TO DETER COULD HAVE BEEN SATISFIED BY THE IMPOSITION OF A SIX-YEAR TERM.

Our standard of review on a motion to suppress is limited. We defer to the trial court's factual findings on the motion, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007). Our review of the trial court's application of the law to the facts, of course, is plenary. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999). Applying those standards here, we affirm Judge Pincus's denial of defendant's motion to suppress substantially for the reasons stated in the judge's carefully reasoned opinion from the bench on July 3, 2012.

We also reject defendant's argument that his sentence was excessive. The judge sentenced defendant in accordance with his plea agreement. She imposed the lowest sentence within the ordinary term range applicable to second-degree unlawful possession of a handgun, five years, N.J.S.A. 2C:43-6a(2), and the three-year period of parole ineligibility mandated by the Graves Act, N.J.S.A. 2C:43-6c, as well as a sentence slightly below the mid-range for defendant's conviction of second-degree aggravated assault, subject to the periods of parole ineligibility and supervision required by NERA.

In imposing that sentence, Judge Pincus carefully reviewed the facts of the offenses, defendant's history and present circumstances and addressed in detail each of the aggravating and mitigating factors urged by the State and defense counsel. The sentencing transcript is a model of conscientiousness and clarity. We are satisfied that the judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Fuentes, 217 N.J. 57, 71-73, (2014); State v.

Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).

Affirmed.

1 Defendant subsequently pled guilty to possessing that gun on September 25, 2010, when he gave it to Darren Fordam while the two were riding in a car in New Brunswick. Defendant testified that he was in the car when Fordham used the gun to shoot the two girls. This testimony provided the factual basis to defendant's guilty plea to the aggravated assault charge.