STATE OF NEW JERSEY v. ANDY GUZMAN

NOT FOR PUBLICATION WITHOUT THE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-4655-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANDY GUZMAN, a/k/a DAVID
GUZMAN,

     Defendant-Appellant.
____________________________________

              Submitted September 20, 2017 – Decided January 29, 2018

              Before Judges Fuentes, Koblitz, and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Indictment No.
              12-12-1881.

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

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Anthony P.
              Torntore, Deputy Attorney General, of
              counsel and on the brief).

PER CURIAM
     Defendant Andy Guzman appeals from his November 13, 2014

judgment of conviction.    We affirm the conviction, but remand to

determine whether he should receive additional jail credits.

     Defendant was indicted in Bergen County for first-degree

possession of a controlled dangerous substance with the intent to

distribute,   
N.J.S.A.   2C:35-5(a)(1)   and   
N.J.S.A.   2C:35-5(b)(1)

(count   one);   second-degree   unlawful   possession    of   a   weapon,


N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a

community gun while engaged in criminal activity, 
N.J.S.A. 2C:39-

4(a)(2) (count three); second-degree possession of a firearm while

committing a drug offense, N.J.S.A. 2C-39-4.1(a) (count four);

second-degree burglary, 
N.J.S.A. 2C:18-2 (count five); fourth-

degree possession of a prohibited weapon, 
N.J.S.A. 2C:39-3(f)

(count six); and second-degree certain persons not to have weapons,


N.J.S.A. 2C:39-7(b) (count seven).1

     After defendant's motion to suppress evidence was denied,

defendant pled guilty to possession of a controlled dangerous

substance with the intent to distribute (count one), and possession

of a community gun (count three).        The remaining counts of the




1
  Co-defendants Jorge Taveras and Omar Rios were each indicted on
counts one through six. Co-defendants are not parties to the
appeal.

                                   2                               A-4655-14T3
indictment were dismissed.      Defendant's plea preserved his right

to appeal.   See R. 3:5-7(d).

     On November 7, 2014, defendant was sentenced to a twelve-year

term of imprisonment with six years of parole ineligibility on

count one, and a concurrent ten-year term with five years of parole

ineligibility on count three.    Defendant received 610 days of jail

credit.

     Defendant appeals, arguing the trial judge erred in denying

his motion to suppress evidence and in calculating the number of

jail credits.    We gather the following facts from the record

developed at the suppression motion.

                                 I

     Sergeant David Borzotta of the Bergen County Prosecutor's

Office testified that on September 9, 2011, he supervised a meeting

between Detective Jen Rueda and co-defendant Jorge Taveras in

Teaneck while Rueda was negotiating, undercover, for the purchase

of three kilos of cocaine.   During the negotiation, Taveras placed

a phone call to an unidentified male, but the drug deal could not

be consummated at that time because of the unavailability of other

participants.   Also, the drugs were in Belleville.   Taveras wanted

to stay in contact with Rueda.

     On September 13, 2011, at about 6:30 or 7:00 p.m., Borzotta

supervised another meeting between Rueda and Taveras, this time

                                     3                      A-4655-14T3
in North Arlington.    Rueda negotiated a purchase of three kilos

of cocaine for $99,000.   Although Borzotta believed the drug sale

would occur there, Taveras changed the location to a specific

address in Belleville.    Borzotta directed a surveillance team of

police to go to that location.       Borzotta drove there in his

unmarked vehicle.

     The address was an auto-body shop located in a commercial

area.    It was closed at that hour but Borzotta could see a light

in an upstairs window with the silhouette of another man standing

there.     Because he was not familiar with the area, Borzotta

testified he parked too close to the actual address and was almost

in front of it.

     Borzotta saw two men exit the building, one of whom was

Taveras, and the other was defendant.   Borzotta did not recognize

defendant.   He observed the two men speak to each other briefly,

and then they split up.     Taveras walked to the corner of that

street and Washington Avenue and then stood there.       Defendant

remained on the sidewalk in front of the designated address just

at the drive way. Within a few minutes, defendant noticed Borzotta

sitting in his vehicle.   Borzotta testified defendant was looking

at him repeatedly and then looking away, which Borzotta considered

to be "suspicious."    Borzotta radioed Detective Rothenberger to

assist him, and when Rothenberger reached Borzotta's vehicle,

                                 4                        A-4655-14T3
Borzotta stepped out.   Borzotta testified he was going to approach

defendant for an "interview."

     As Borzotta stepped out of his vehicle, he saw defendant turn

away in the direction of the address and rapidly begin to walk

toward it.    Defendant then discarded an object, which Borzotta

believed to be drugs, and ran toward the building.         As defendant

began to run, Borzotta called out that he was with the police and

for defendant to stop.      Borzotta ran after defendant into the

address, catching him at the top of an interior set of stairs,

where he tackled defendant on the landing, and then placed him in

custody.   Borzotta noticed the black handle of a firearm on a desk

just an arm's length away from another co-defendant, Omar Rios.

Another officer, Detective Finch, secured that weapon, a Glock

semi-automatic   .40   caliber   handgun,   with   a   loaded   magazine.

Outside, Taveras was arrested.

     In May 2013, defendant's motion to suppress evidence was

denied.    The court found Borzotta was a credible witness and that

"based on the totality of the circumstances," there was probable

cause to arrest defendant.       Those circumstances included that

Taveras was not acting alone, Borzotta observed defendant exiting

with Taveras from the pre-arranged meeting location in Belleville,

and defendant was making "furtive gestures."           Defendant walked

away quickly when he noticed Borzotta.

                                   5                             A-4655-14T3
      The court found the police had a reasonable suspicion that

defendant was involved in selling drugs and had them on his person.

The police were justified in entering the building and in arresting

him under the exigent circumstances doctrine before evidence was

destroyed or discarded.          The court found the seizure of the gun

once inside the building was authorized under the plain view

exception.      In addition, defendant had abandoned the cocaine by

voluntarily discarding it.

      On appeal, defendant raises the following issues:

              POINT I

              THE POLICE LACKED PROBABLE CAUSE WHEN THEY
              WENT TO ARREST DEFENDANT AND ALSO LACKED
              REASONABLE SUSPICION TO STOP HIM, AND, THUS,
              THE   FRUITS    OF   THAT    UNCONSTITUTIONAL
              WARRANTLESS ARREST (OR STOP) SHOULD HAVE BEEN
              SUPPRESSED.

              POINT II

              THE MATTER SHOULD BE REMANDED TO ADDRESS THE
              ISSUE OF JAIL CREDITS.

                                          II

      "When reviewing a trial court's decision to grant or deny a

suppression motion, [we] '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. Dunbar, 
229 N.J.
 521, 538 (2017) (quoting State v. Hubbard, 
222 N.J. 249, 262

(2015)).      "We will set aside a trial court's findings of fact only

                                           6                             A-4655-14T3
when    such   findings      'are   clearly     mistaken.'"    Ibid.   (quoting

Hubbard, 
222 N.J. at 262).             "We accord no deference, however, to

a trial court's interpretation of law, which we review de novo."

Ibid. (quoting State v. Hathaway, 
222 N.J. 453, 467 (2015)).

       Both the federal and State constitutions protect citizens

against unreasonable searches and seizures.               U.S. Const. amend.

IV; N.J. Const. art. I, ¶ 7.              An investigatory stop, sometimes

referred       to   as   a    Terry2     stop,    implicates   constitutional

requirements and must be based on "specific and articulable facts

which, taken together with rational inferences from those facts"

provide a "reasonable suspicion of criminal activity."                 State v.

Elders, 
192 N.J. 224, 247 (2007) (quoting State v. Rodriquez, 
172 N.J. 117, 126 (2002)).          "Because an investigative detention is a

temporary seizure that restricts a person's movement, it must be

based on an officer's 'reasonable and particularized suspicion

. . . that an individual has just engaged in, or was about to

engage in, criminal activity.'"               State v. Rosario, 
229 N.J. 263,

272 (2017) (quoting State v. Stovall, 
170 N.J. 346, 356 (2002)).

The officer's "articulable reasons" or "particularized suspicion"

is based on the officer's assessment of the totality of the

circumstances.       State v. Davis, 
104 N.J. 490, 504 (1986).



2
    Terry v. Ohio, 
392 U.S. 1, 16 (1968).

                                          7                            A-4655-14T3
     We disagree with defendant that this case is like State v.

Williams, 
410 N.J. Super. 549 (App. Div. 2009).          In Williams, the

police observed defendant riding a bicycle in a housing complex.

When defendant saw them, he put his hand in his pocket and pedaled

away.     No other facts indicated the defendant was involved with

drugs or drug sales.       We found the police lacked an objectively

reasonable basis to stop defendant based on these observations.

     Nor is this case similar to State v. Tucker, 
136 N.J. 158

(1994).    There, the defendant was sitting on a curb when he saw

the police and fled.       As the police pursued him, he discarded

packets, which contained cocaine.       The Court found there was no

reasonable, articulable basis for the police to stop the defendant

merely because he fled when he saw the police.

     Rather, this case is more like State v. Mann, 
203 N.J. 328

(2010).    There, the police were surveilling a known drug dealer,

for whom they had an arrest and search warrant, when defendant

drove up and had a brief conversation with the dealer.              Defendant

looked nervous after he saw the police and then ran into a nearby

restaurant, with the police in pursuit ordering him to stop.               The

police apprehended the defendant in the bathroom as he was trying

to flush the drugs in the toilet.             The Court found that "the

totality of the circumstances gave rise to a reasonable and

articulable    suspicion   that   defendant    was   engaged   in   criminal

                                    8                                A-4655-14T3
activity" and that it was a combination of factors that justified

the investigatory stop, not each factor by itself.        Mann, 
203 N.J

at 341.    This justified the police in pursuing the defendant into

the bathroom and the seizure of the drugs.

      As in Mann, we are satisfied here that the totality of the

circumstances provided a reasonable, articulable suspicion that

defendant was about to engage in criminal activity.        This was the

location and time that had been set for the purchase of three

kilos of cocaine. At least two men were involved with the proposed

transaction, Taveras and someone else.      Two men were present here.

Borzotta testified that defendant was acting suspiciously.                 As

soon as Borzotta stepped out of his vehicle, defendant fled and

threw to the ground an object that Borzotta suspected was a kilo

of cocaine.    Borzotta identified himself and commanded defendant

to stop, but defendant disobeyed.      Borzotta then was justified in

pursuing defendant into the building and seizing the kilo that he

had   discarded.    Borzotta   then   had   probable   cause   to     arrest

defendant and seize additional evidence.

      We affirm the trial court's denial of defendant's suppression

motion. Defendant's remaining arguments regarding the suppression

motion lack sufficient merit to warrant discussion in a written

opinion.    R. 2:11-3(e)(2).



                                  9                                 A-4655-14T3
       Defendant contends he is entitled to additional jail credits

for the time after he finished his federal sentence on October 2,

2014, and before he commenced his state sentence on November 7,

2014.

       Rule 3:21-8(a) provides that "[t]he defendant shall receive

credit on the term of a custodial sentence for any time served in

custody in jail or in a state hospital between arrest and the

imposition of sentence."        Jail credits are "day-for-day credits,"

that are "subtracted from the original sentence."                 Buncie v. Dep't

of Corr., 
382 N.J. Super. 214, 217 (App. Div. 2005).                     "When the

Rule    preconditions     for   the    application     of    jail    credits    are

satisfied,       the   award    of    such   credits     is       mandatory,    not

discretionary."        State v. Rawls, 
219 N.J. 185, 192 (2014) (quoting

State v. Hernandez, 
208 N.J. 24, 37 (2011)).

       We agree with defendant that there must be a remand to

determine if he received all the jail credit to which he was

entitled.    That said, the review is to determine if defendant is

entitled    to    additional,    not    fewer,    jail   time      credits.       We

previously denied the State's cross-motion to press its claim that

defendant was awarded too many jail credits, without filing a

cross-appeal.

       Affirmed, but remanded to determine whether defendant is

entitled    to    additional    jail    credits    and      for    any   necessary

                                       10                                 A-4655-14T3
correction of the judgment of conviction.   We do not retain

jurisdiction.




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