STATE OF NEW JERSEY v. JUAN C. RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE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-3876-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JUAN C. RODRIGUEZ, a/k/a JOEL VEGA
and JOEL VEGAS,

     Defendant-Appellant.
_________________________________

              Submitted March 6, 2018 – Decided March 22, 2018

              Before Judges Fasciale and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              13-07-2261.

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

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Arielle E. Katz, Deputy
              Attorney General, of counsel and on the
              brief).

PER CURIAM
    Defendant   appeals    from   his   conviction   for   second-degree

certain persons not to have weapons, 
N.J.S.A. 2C:39-7(b)(1).            We

affirm.

    On appeal, defendant argues:

           POINT I
           LAW ENFORCEMENT SEIZED RODRIGUEZ WITHOUT
           REASONABLE SUSPICION THAT A CRIME WAS AFOOT,
           AND THEREFORE, THE FRUITS OF THE SUBSEQUENT
           SEARCH MUST [BE] SUPPRESSED. U.S. Const.
           Amend. IV and XIV; N.J. Const. Art. I, Par.
           7.

           POINT II
           THE COURT IMPROPERLY DENIED THE MOTION TO
           REOPEN THE SUPPRESSION MOTION U.S. Const.
           Amend. IV and XIV; N.J. Const. Art. I Par. 7.

           POINT III
           THE COURT   ERRED IN DENYING RODRIGUEZ' MOTION
           FOR AN IN   CAMERA INSPECTION OF THE OFFICER'S
           PERSONNEL   FILE. U.S. Const. Amend. V, VI and
           XIV; N.J.   Const. Art. I, Par. 10.

           POINT IV
           THE   TRIAL   COURT   IMPROPERLY    GAVE   THE
           INSTRUCTION ON FAILURE TO TESTIFY WITHOUT THE
           DEFENDANT'S CONSENT, THEREBY DENYING HIM A
           FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND
           XIV; N.J.CONST. (1947), ART. I, PARS. 1, 
9 AND
           10) (NOT RAISED BELOW).

    We have considered defendant's second argument and conclude

it is without sufficient merit to warrant discussion in a written

opinion.   R. 2:11-3(e)(2).       Instead, we focus on his remaining

three contentions.




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       "Appellate courts reviewing a grant or denial of a motion to

suppress must defer to the factual findings of the trial court so

long as those findings are supported by sufficient evidence in the

record."        State v. Hubbard, 
222 N.J. 249, 262 (2015).            We should

give deference to a trial judge's factual findings because these

findings "are often influenced by matters such as observations of

the character and demeanor of witnesses and common human experience

that are not transmitted by the record."               State v. Locurto, 
157 N.J.     463,     474   (1999).       However,   the   trial    court's     legal

interpretations will be reviewed de novo.                Hubbard, 
222 N.J. at
 263.

       "Warrantless seizures and searches are presumptively invalid

as contrary to the United States and the New Jersey Constitutions."

State v. Pineiro, 
181 N.J. 13, 19 (2004).                   To overcome this

presumption, the State must show by a preponderance of evidence

that the search falls within one of the well-recognized exceptions

to the warrant requirement.           State v. Maryland, 
167 N.J. 471, 482

(2001)    (citing       Schneckloth   v.   Bustamonte,    
412 U.S. 218,    219

(1973)).    An investigatory stop, commonly referred to as a Terry1

stop, is a valid exception "if it is based on 'specific and

articulable facts which, taken together with rational inferences



1
    Terry v. Ohio, 
392 U.S. 1 (1968).

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from those facts,' give rise to a reasonable suspicion of criminal

activity."        State v. Rodriguez, 
172 N.J. 117, 126-27 (2002)

(quoting Terry v. Ohio, 
392 U.S. 1, 21 (1968)).

     When    an    investigatory     stop      is    based   on   a     confidential

informant's tip, the State must establish the reliability of the

tip under the totality of the circumstances.                 State v. Smith, 
155 N.J. 83, 92-93 (1998) (citing Illinois v. Gates, 
462 U.S. 213, 238

(1983)).    The informant's veracity and basis of knowledge for the

tip are two highly relevant factors.                State v. Caldwell, 
158 N.J.
 452, 460 (1999) (citations omitted).                Veracity may be established

by the informant's past instances of reliability.                  State v. Keyes,


184 N.J. 541, 555 (2005).        A sufficient basis of knowledge may be

established "if the tip itself relates expressly or clearly how

the informant knows of the criminal activity."                    Smith, 
155 N.J.

at 94.      "Even in the absence of a disclosure that expressly

indicates the source of the informant's knowledge, the nature and

details    revealed   in   the     tip   may    imply    that     the   informant's

knowledge of the alleged criminal activity is derived from a

trustworthy source."       Ibid.

     Of importance here, our Supreme Court has noted that an

ordinary citizen reporting a crime to the police, which the citizen

purports to have observed, is assumed to be reliable, and courts

assume that a further demonstration of reliability is not necessary

                                         4                                   A-3876-15T3
to justify a stop of the person identified in the citizen's report.

State v. Basil, 
202 N.J. 570, 586 (2010).   "There is an assumption

grounded in common experience that such a person is motivated by

factors that are consistent with law enforcement goals."      State

v. Davis, 
104 N.J. 490, 506 (1986).

     The judge found that the officer established reasonable and

articulable suspicion to conduct a lawful investigatory stop and

perform a protective frisk of defendant.    A tip from a concerned

citizen advised that the informant observed a Hispanic male,

wearing a black jacket and tan boots, brandishing a small revolver

at a specific intersection, which the police considered a high

crime area.   The officer reported to the area and corroborated

that information within minutes of receiving the tip.   The officer

noticed defendant "blading" his body from the officer, which the

officer concluded was in attempt to conceal a weapon.   Looking at

the totality of the circumstances, we have no reason to disturb

the judge's findings or conclusions.

     Next, we address defendant's argument that the judge erred

by denying his request for an in camera inspection of an officer's

personnel file.    We review a judge's ruling on a defendant's

discovery motion for abuse of discretion.    State v. Enright, 
416 N.J. Super 391, 404 (App. Div. 2010).



                                 5                          A-3876-15T3
     As part of a criminal defendant's constitutional right to

confrontation, a defendant may attack a witness's credibility by

"revealing possible biases, prejudices, or ulterior motives" as

they relate to the issues in the case.        State v. Harris, 
316 N.J.

Super. 384, 397 (App. Div. 1998).       The question of "whether police

personnel records should be disclosed involves a balancing between

the public interest in maintaining the confidentiality of police

personnel records" and a defendant's right of confrontation.           Id.

at 397-98. The State has a duty to learn of any evidence favorable

to the defendant "known to others acting on the government's behalf

in the case, including the police."           State v. Jones, 
308 N.J.

Super. 15, 42-43 (App. Div. 1998) (quoting Kyles v. Whitley, 
514 U.S. 419, 437 (1995)).    However, that duty cannot be triggered by

mere speculation that a government file may contain exculpatory

material.   Ibid.    Such is the case here.

     The officer was not the subject of an internal investigation

involving   defendant's   arrest.       His   administrative   leave   was

unconnected in any way to an internal investigation here.        On this

record, we see no credible basis to conduct the inspection.         Thus,

the judge did not err by concluding that there was an insufficient

factual predicate.

     Finally, as to defendant's election not to testify at trial,

he argues for the first time that the judge erred by giving the

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related jury charge without his consent.   The judge told defendant

during the charge conference that she was going to give the charge.

Defense counsel and defendant did not object.     We see no plain

error here.

     Affirmed.




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