STATE OF NEW JERSEY v. LARRY HOLLAND

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LARRY HOLLAND, a/k/a TROY GREEN,

Defendant-Appellant.

_______________________________________________

November 2, 2016

Submitted September 14, 2016 Decided

Before Judges Guadagno and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-06-1529.

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

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

PER CURIAM

After the denial of his motion to suppress a handgun, defendant Larry Holland pled guilty pursuant to a plea agreement to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Defendant was sentenced to a three-year prison term with three years of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c). Defendant now challenges the credibility determinations made by the motion judge and claims the seizure of the handgun was unlawful. We disagree and affirm.

We glean the following facts from the testimony at the hearing on defendant's motion to suppress before Judge Thomas M. Moore. On September 16, 2011, Newark Police Detective Silas Smith was off-duty and working as a security guard for New Community Corporation Complex (NCCC) in Newark. NCCC consists of eleven buildings, six of which are designated for elderly or assisted living.

At approximately 10:30 p.m., Smith observed a man, later identified as defendant, leaning out of a third-floor window of one of the age-restricted buildings, talking to passers-by. Smith initially suspected a "drug operation," explaining that there had been prior drug dealing in the building where someone on the ground floor would collect money from a purchaser, and a confederate would throw down drugs from an upper floor. Smith's suspicions were further heightened because defendant appeared to be well below the sixty-year-old age requirement for residents.

Smith entered the building and took the elevator to the third floor. When he emerged, Smith observed defendant with his knee on a small bench, still leaning out of the window, with a gun in his right hand. Smith observed no one else in the area other than defendant. Smith immediately yelled "police," drew his service weapon, and ordered defendant to drop to the floor. After uttering a few profanities, defendant dropped the gun and complied. Smith called for backup and defendant was arrested.

At the conclusion of Smith's testimony, the State rested and defendant called Brittany Reddick. Reddick testified that she was in an "on-again, off-again" relationship with defendant, and he was the father of her child. Reddick claimed she was sitting and talking with defendant near the window, waiting for defendant's father to come out of his apartment, when Smith got off the elevator and approached defendant. Smith asked defendant for identification and told him he was a police officer. Smith ordered defendant to stand and asked if he had anything on him. As Smith began to pat defendant down, defendant said he had a weapon. Reddick testified that defendant had found the gun earlier that day.

On May 9, 2013, Judge Moore entered an order denying defendant's motion to suppress. In a written decision accompanying the order, Judge Moore made extensive credibility findings, expressly discrediting Reddick's testimony, particularly the portion of her testimony claiming she was waiting outside of the apartment of defendant's father. Conversely, Judge Moore found Smith "both credible and reliable . . . direct and straight forward."

Accepting Smith's version, Judge Moore found that Smith observed the weapon in plain view in defendant's hand while defendant was standing in a common hallway of the building Smith was patrolling.

On appeal, defendant raises the following argument

point i

the trial court erroneously denied defendant's motion to suppress.

a. the court's credibility findings on the motion to suppress were erroneous.

b. smith's search and seizure of defendant was unlawful.

Defendant challenges Judge Moore's credibility findings based, in part, on Smith's decision to proceed directly into the building without questioning people outside the building. Defendant also notes Smith's failure to recall the numbers of the apartments on the third floor, and suggests that Reddick's testimony contains more specific details and therefore presented "the more likely scenario."

Our review is limited to determining whether Judge Moore's findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We defer to the trial court's credibility findings as they "are often influenced by matters such as observations of the character and demeanor of witnesses." State v. Locurto, 157 N.J. 463, 474 (1999). Applying these principles, we are satisfied that Judge Moore provided a clear articulation of his reasons for finding Smith to be more credible than Reddick and there is ample evidence in the record to support his findings.

The remainder of defendant's arguments lack sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(2).

Affirmed.