A-0STATE OF NEW JERSEY v. ROBERT A. FIGUEROA October 24, 2014

NOT FOR PUBLICATION WITHOUT THE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.

ROBERT A. FIGUEROA,

Defendant-Appellant.

_____________________________________

October 24, 2014

Submitted October 1, 2014 - Decided

Before Judges Alvarez, Waugh, and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 12-05-1258, 12-09-2281, and 12-09-2350.

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

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

PER CURIAM

Defendant Robert A. Figueroa appeals his conviction, following a guilty plea, for second-degree possession of a handgun without a permit, third-degree absconding from parole, and two counts of third-degree possession of a controlled dangerous substance (CDS) within 1000 feet of a school. He also appeals the resulting aggregate sentence of incarceration for six years with three years of parole ineligibility. We affirm.

I.

On the evening of June 28, 2012, Detectives Juan Ramos and Henry Suarez of the Newark Police Gang Unit, along with representatives of other law enforcement agencies, were dispatched to the Broadway Townhouse complex in Newark to observe any illegal activity. According to Ramos, who had six years of experience in the Gang Unit, the complex is a high crime area known for recent shooting incidents and narcotics activity.

The detectives wore tactical police uniforms, which included a police vest with the word "Police" displayed prominently on both the front and back. They drove to the complex in a marked Newark police cruiser. Other law enforcement personnel arrived in marked and unmarked vehicles.

The two detectives had slightly differing accounts of what occurred when they arrived at the Broadway Townhouses. According to Ramos, they

[p]ulled up to the front of Broadway Townhouses, at which time [they] observed an individual running out towards us, looking to his rear. Upon looking towards us, he quickly stopped and turned around. As he did so, . . . [we] observed a handgun in the waistband.

According to Suarez, when they arrived "[t]here was a whole bunch of people that started to run."

This person was running . . . from behind the complex and then as he was coming out, he looked back and he seen us. After he . . . saw us, he tried to go back into the complex. When he turned around to go back into the back of the complex, we were able to observe a what appeared to be a handle of a black handgun on his waistband.

Both detectives subsequently identified Figueroa as the person with the handgun.

Suarez was in the passenger seat of Ramos's marked police car. When he saw the handgun in Figueroa's waistband, he "immediately" exited the vehicle and began to pursue him while yelling "[s]top; police; stop." Figueroa encountered a "tall metal fence," but was able to squeeze under the fence. As he did so, Suarez heard "a metal sound, a big clunk" and saw that Figueroa had dropped the gun. Figueroa saw the gun on the ground, but kept running. Because his police vest was too bulky, Suarez was unable to get through the fence. Instead, he remained with the gun to keep it secure. Ramos ultimately apprehended Figueroa, after he observed Figueroa coming over a brick wall on Third Avenue.

Figueroa was the subject of three indictments, only one of which arose from the events described above. Indictment Number 12-05-1258 (May 2012) charged Figueroa with one count of conspiracy to possess CDS (heroin), and to possess CDS with intent to distribute, N.J.S.A.2C:5-2; 2C:35-10(a)(1) (count 1); third-degree possession of CDS, N.J.S.A.2C:35-10(a)(1) (count 2); third-degree possession of CDS with intent to distribute, N.J.S.A.2C:35-5(a)(1), (b)(3) (count three); third-degree possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A.2C:35-7 (count four); second-degree possession of CDS with intent to distribute within 500 feet of a public housing facility, public park, or public building, N.J.S.A.2C:35-7.1 (count five); third-degree possession of CDS, N.J.S.A.2C:35-10(a)(1) (count six); third-degree possession of CDS with intent to distribute, N.J.S.A.2C:35-5(a)(1), (b)(3) (count seven); third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A.2C:35-7 (count eight); and second-degree possession of CDS with intent to distribute within 500 feet of a public housing facility, public park, or public building, N.J.S.A.2C:35-7.1 (count nine).

Indictment No. 12-09-2281 (September 2012), which involved the events described above, charged Figueroa with second-degree unlawful possession of a firearm without a permit to carry, N.J.S.A.2C:39-5(b) (count one); third-degree receipt of stolen property, N.J.S.A.2C:20-7 (count two); and third-degree resisting arrest, N.J.S.A.2C:29-2(a)(3)(a) (count three). Indictment No. 12-09-2350 (September 2012) charged Figueroa with third-degree absconding from parole, in violation of N.J.S.A.2C:29-5(b).

Figueroa moved to suppress the gun seized at the time of his arrest on June 28. The trial judge held an evidentiary hearing on the motion in November, at which Suarez and Ramos testified as outlined above. The judge delivered an oral decision at the end of the hearing, explaining his reasons for denying the motion. An implementing order was entered the same day.

On January 4, 2013, Figueroa entered into a negotiated plea agreement in which he agreed to plead guilty to (1) count one of Indictment No. 12-09-2281, second-degree possession of a handgun without a permit; (2) count one of Indictment No. 12-09-2350, third-degree absconding from parole; and (3) counts four and eight of Indictment No. 12-05-1258, each of which alleged third-degree possession of CDS within 1000 feet of a school. In exchange, the State agreed to recommend an aggregate sentence of six years with three years of parole ineligibility. The remaining counts were to be dismissed. Figueroa then gave a factual basis for each of the counts, and the judge accepted the plea. On February 15, Figueroa was sentenced in accordance with the plea. This appeal followed.

II.

Figueroa raises the following issues on appeal

A. THE COURT BELOW ERRED IN DENYING THE MOTION TO SUPPRESS EVIDENCE, AS THE CONVERGENCE OF THE MARKED POLICE VEHICLES CONSTITUTED AN UNCONSTITUTIONAL INVESTIGATORY STOP

B. THE LOWER COURT'S FACTUAL FINDINGS WERE NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE[;] THEREFORE, THIS COURT SHOULD REVERSE THE DENIAL OF MR. FIGUEROA'S MOTION TO SUPPRESS EVIDENCE

C. IN THE ALTERNATIVE, THE CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE PRESENT SENTENCE IS MANIFESTLY EXCESSIVE

1. The Sentencing Court Accorded Undue Weight to Aggravating Factors Three, Six, and Nine

2. The Sentencing Judge Erred in Neglecting to Consider Mr. Figueroa's Status as a Youthful Offender and Failing to Find Mitigating Factor Eleven

A.

We begin our analysis with the motion to suppress the gun. Figueroa contends that "the simultaneous convergence" of three different law enforcement agencies in marked and unmarked vehicles at the housing complex constituted an unconstitutional investigatory stop that was not supported by a reasonable, particularized suspicion of criminal activity. For that reason, he asserts, the gun should have been suppressed as the fruit of an illegal search. Figueroa also contends that the judge's findings of fact were not supported by credible evidence in the record.

The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows

[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).

 
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

[State v. Elders, 192 N.J. 224, 243-44 (2007) (third alteration in original).]

Our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

The two constitutionally permissible forms of police encounters relevant to this case are the "field inquiry" and the investigatory stop, which is also referred to as a Terrystop. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). A "field inquiry" is the least intrusive encounter, and occurs when a police officer approaches an individual and asks "if [the person] is willing to answer some questions." State v. Nishina, 175 N.J.502, 510 (2003) (citation and internal quotation marks omitted). A field inquiry is permissible so long as the questions "[are] not harassing, overbearing, or accusatory in nature." Ibid. "The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way." State v. Maryland, 167 N.J.471, 483 (2001) (quoting Florida v. Royer, 460 U.S. 491, 497 98, 103 S. Ct. 1319, 1324 L. Ed. 2d 229, 236 (1983)).

A Terrystop, which involves a brief "seizure" of the individual questioned by the police, is valid only "if 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." Nishina, supra,175 N.J.at 510 11 (citation and internal quotation marks omitted). The suspicion need not rise to the "probable cause necessary to justify an arrest." Id.at 511. In Terry,in addition to holding that a seizure occurs "whenever a police officer accosts an individual and restrains his freedom to walk away," the Court held that a seizure also occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry, supra, 392 U.S.at 16, 19 n.16, 88 S. Ct.at 1877, 1879 n.16, 20 L. Ed. 2d at 903, 905 n.16. The touchstone of a seizure is the restraint of an individual's personal liberty "in some way." Ibid.

The reasonableness of police conducting a Terrystop in light of the Fourth Amendment is generally assessed by

balancing the need to search (or seize) against the invasion which the search (or seizure) entails. The facts used in [the] test are to be judged objectively: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?

[State v. Arthur, 149 N.J. 1, 7 8 (1997) (citations and internal quotation marks omitted).]

The determination of whether an officer had a reasonable suspicion to conduct a brief investigatory stop is fact sensitive and requires an evaluation of the "totality of the circumstances." State v. Pineiro, 181 N.J.13, 22 (2004).

"An officer's experience and knowledge are factors courts should consider in applying the totality of the circumstances test." Ibid.(citing State v. Davis,104 N.J.490, 504 (1986)). In addition, courts can consider, as one of a number of suspicious circumstances, a defendant's presence in a high crime area. Id.at 24. The defendant's flight may also be evaluated in assessing guilt. State v. Tucker,136 N.J.158, 169 (1994). Additionally, "the fact that a suspect's behavior may be consistent with innocent behavior does not control the analysis." State v. Mann, 203 N.J.328, 338 (2010).

We reject Figueroa's argument that the mere convergence of police officers at a location known for criminal activity is a "stop" of all those present for search and seizure purposes. Even if such a convergence could be considered a stop, it would be at most a field inquiry, in that the officers went to the high crime area to see whether any illegal activity was taking place.

Here, the detectives never even had the opportunity to approach Figueroa to ascertain whether he was willing to speak with them. On their arrival, both Suarez and Ramos observed Figueroa in possession of a handgun as he noticed them and started running away. That conduct, possession of a weapon in a high crime area and running away once he saw that there were police officers present, gave Suarez and Ramos the required basis for a Terry stop.1 There can be no doubt that, by the time they began to pursue Figueroa, both detectives had a reasonable suspicion of criminal activity based on specific and articulable facts.

Both Suarez and Ramos testified at the suppression hearing that they observed Figueroa with the handgun in his waistband. The judge credited that testimony. Although there were some differences between the details in the testimony given by the two detectives, both with respect to the details of Figueroa's actions and the surrounding events, they were in agreement on the crucial fact that Figueroa had a handgun in his possession. We find no merit in Figueroa's argument that the relatively minor discrepancies in their testimony rendered it unreliable and the motion judge's factual findings unworthy of the deference required by our standard of review. Consequently, we affirm the denial of the motion to suppress.

B.

Figueroa also challenges his sentence, arguing that the judge gave undue weight to aggravating factors three, "the risk that defendant will commit another offense"; six, "defendant's prior criminal record and seriousness of the offenses"; and nine, the need for deterrence. N.J.S.A.2C:44 1(a)(3), (6), (9). In addition, he argues that the judge failed adequately to consider his status as a youthful offender, nineteen years of age at the time of sentencing, and also failed to apply mitigating factor eleven, "excessive hardship to himself or his dependents," because Figueroa had an eight-month-old daughter. N.J.S.A.2C:44 1(b)(11).

"[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364-65.

"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).

Here, Figueroa was sentenced in accordance with the plea agreement. He pled guilty to four crimes from three indictments and received concurrent sentences. The longest term, a six-year term for a second-degree offense, was at the lower end of the sentencing range, which is five to ten years. The judge considered the appropriate aggravating and mitigating factors, and we find no fault with the weight he gave them. Figueroa's suggestion that the judge did not take sufficient account of his youthful status is undercut by the fact that Figueroa had a significant juvenile record and was pleading guilty to counts from his first three adult indictments. Figueroa never raised the issue of hardship to his infant daughter and never supplied evidence that she was his dependent. SeeDalziel, supra, 182 N.J.at 505. We see no basis to remand for resentencing, as requested by Figueroa.

Affirmed.

1 In light of the motion judge's finding that the gun was visible at the time the detectives first observed Figueroa running away from them, we need not consider whether there would have been a constitutional violation had Figueroa been pursued when no weapon was visible.