STATE OF NEW JERSEY v. GARY WARD

NOT FOR PUBLICATION WITHOUT THE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-2888-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GARY WARD, a/k/a GARY W.
WARD, GARY W. WARD, II,
and GARY WESTLEY MCCOY
WARD, JR.,

     Defendant-Appellant.
_____________________________

                    Submitted March 4, 2020 – Decided March 12, 2020

                    Before Judges Haas and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 17-01-0224.

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

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Steven K. Cuttonaro, Deputy Attorney
                    General, of counsel and on the brief).
PER CURIAM

      After the trial court denied his motion to suppress a handgun seized in

plain view from his car, defendant Gary Ward pled guilty to second-degree

unlawful possession of a weapon,  N.J.S.A. 2C:39-5(b). In accordance with the

negotiated plea, the court sentenced defendant to seven years in prison, subject

to a forty-two month period of parole ineligibility.

      On appeal, defendant raises the following contentions:

            POINT I

            THE MOTION COURT ERRED IN RULING THAT
            THE DETECTIVE'S WARRANTLESS SEIZURE OF
            EVIDENCE IN THE FLOORBOARD OF THE CAR
            WAS CONSTITUTIONAL.

            POINT II

            THE MATTER SHOULD BE REMANDED FOR
            RESENTENCING BECAUSE THE COURT ERRED
            IN FINDING AND ASCRIBING UNDUE WEIGHT
            TO AGGRAVATING FACTORS THREE, SIX, AND
            NINE.

After reviewing the record in light of the contentions advanced on appeal, we

affirm.

                                        I.

      At approximately 11:40 p.m. on November 9, 2015, Detective Trevor

Forde was on patrol with four other officers in Newark. The detective saw

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defendant drive his car through a stop sign, and also observed he was not

wearing a seatbelt. Based on these clear traffic violations, Detective Forde

executed a motor vehicle stop of defendant's car.1

        As he approached the car, Detective Forde saw defendant bending down

in the driver's seat and he "appear[ed] to be stuffing something somewhere near

the floor area of the car."     Because defendant was making these furtive

movements, the detective believed he was "trying to conceal an object or some

type of contraband."

        Fearful that defendant was trying to hide a weapon, Detective Forde

repeatedly ordered defendant and the other passengers to raise and show him

their hands. Defendant and the passengers complied. When he got to the driver's

side door, the detective "noticed an object underneath the seat protruding."

Detective Forde testified at the suppression hearing that the object had a "black

handle" that "was consistent with a possible hand gun."

        Detective Forde immediately notified the other officers he had seen a

handgun so they would "be wary of the driver." He then ordered defendant and

the passengers to get out of the car and opened the driver's side door so he could

keep an eye on defendant's hands in order to protect himself and the other


1
    There were two other passengers in defendant's car.
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officers. After the door was opened, Detective Forde confirmed that the object

was a gun, and another officer removed it from the car.

      The police arrested defendant and, as he was handcuffed, defendant

"blurted out" that the gun belonged to him. After conducting a records check,

the police released the passengers.

      At the conclusion of the hearing, the trial judge denied defendant's motion

to suppress the handgun the police seized from his car. In a thorou gh oral

opinion, the judge found that the police had a reasonable basis for stopping

defendant's car after he ran the stop sign. The judge also determined that

Detective Forde credibly testified that he observed defendant make a series of

furtive movements indicating an attempt to conceal something in the floor area

of the car. When the detective reached the car, he could see an object under the

seat which he believed was a gun. The judge found that after properly ordering

defendant to get out of the car and opening the driver's door, the detective

confirmed that the object was a handgun by again observing it in plain view.

Therefore, the judge concluded that the seizure of the weapon was proper.

                                       II.

      In Point I of his brief, defendant asserts that the trial judge erred by

denying his motion to suppress the handgun seized from his car. We disagree.


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        Our review of a trial judge's decision on a motion to suppress is limited.

State v. Robinson,  200 N.J. 1, 15 (2009). In reviewing a motion to suppress

evidence, we must uphold the judge's factual findings, "so long as those findings

are supported by sufficient credible evidence in the record." State v. Rockford,

 213 N.J. 424, 440 (2013) (quoting Robinson,  200 N.J. at 15). Additionally, we

defer to a trial judge's findings that are "substantially influenced by [the trial

judge's] opportunity to hear and see the witnesses and to have the 'feel' of the

case, which a reviewing court cannot enjoy."        Ibid. (alteration in original)

(quoting Robinson,  200 N.J. at 15). We do not, however, defer to a trial judge's

legal conclusions, which we review de novo. Ibid.

        The police may, without a warrant, temporarily detain a person if they

have a reasonable and articulable suspicion that the person is engaged in

unlawful activity. State v. Elders,  192 N.J. 224, 247 (2007). Similarly, the

police may stop a motor vehicle based on a "reasonable and articulable suspicion

that an offense, including a minor traffic offense, has been or is being

committed." State v. Amelio,  197 N.J. 207, 211 (2008). The State bears the

burden of establishing by a preponderance of the evidence that it possessed

sufficient information to give rise to a reasonable and articulable suspicion.

Ibid.


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      Here, Detective Forde saw defendant drive his car through a stop sign

while not wearing a seatbelt. These obvious traffic violations in the detective's

presence gave him a reasonable basis for stopping defendant's car. Ibid.

      As he approached the car, defendant began making furtive movements that

the detective interpreted as an attempt to hide an object or contraband on the

floor of the car. From outside the car, Detective Forde could see the black

handle of what he believed was a gun under the seat and alerted the other officers

of the danger. The detective ordered defendant to get out of the car and opened

defendant's door to effectuate his removal.

      As the trial judge correctly found, the detective was plainly justified in

directing defendant to exit the car. State v. Bacome,  228 N.J. 94, 104 (2017)

(noting that the United States Supreme Court has held since 1977 that it is

"objectively reasonable for officers to order a driver out of a lawfully stopped

vehicle, finding removal only a minor intrusion into a driver's personal liberty")

(citing Pennsylvania v. Mimms,  434 U.S. 106, 111 (1977)); see also State v.

Pena-Flores,  198 N.J. 6, 31 n.7 (2009) (describing right of officer to remove

driver from lawfully stopped vehicle as "established precedent").        Because

Detective Forde was justified in ordering defendant to get out of the car, he was

also permitted to open defendant's door to effectuate his order. State v. Mai,


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 202 N.J. 12, 22-23 (2010) (noting that "no meaningful or relevant difference

exists between the grant of authority to order an occupant of a vehicle to exit the

vehicle and the authority to open the door as part of issuing that lawful order").

      Once the door was opened, Detective Forde confirmed that the black -

handled object was a gun, an observation that was further confirmed by anoth er

officer who then removed the gun from the car once defendant exited it. Under

these circumstances, the judge concluded that the gun was in detective's plain

view and, accordingly, was properly seized.

      The rationale of the plain view doctrine is that "a police officer lawfully

in the viewing area" should not be required to "close his [or her] eyes to

suspicious evidence in plain view." State v. Johnson,  171 N.J. 192, 207 (2002)

(quoting State v. Bruzzese,  94 N.J. 210, 237 (1983)). Under the plain view

exception to the warrant requirement in effect at the time the police seized

defendant's handgun from the car, 2 three requirements had to be satisfied:

            First, the police officer must be lawfully in the viewing
            area.

            Second, the officer has to discover the evidence
            "inadvertently," meaning that [the officer] did not know


 2 On November 15, 2016, our Supreme Court held prospectively "that an
inadvertent discovery of contraband or evidence of a crime is no longer a
predicate for a plain-view seizure." State v. Gonzales,  227 N.J. 77, 82 (2016).
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            in advance where evidence was located nor intend
            beforehand to seize it.

            Third, it has to be "immediately apparent" to the office
            that items in plain view were evidence of a crime,
            contraband, or otherwise subject to seizure.

            [State v. Mann,  203 N.J. 328, 341 (2010) (quoting
            Bruzzese,  94 N.J. at 236).]

      Contrary to defendant's contentions on appeal, these requirements were

all met here. Detective Forde conducted a lawful traffic stop and observed

defendant attempting to hide something on the floor of the car.          Despite

defendant's desperate efforts to avoid detection of the weapon, he left the black

handle of the gun sticking out from under the seat. Once the detective saw the

gun in plain view, he properly ordered defendant and the passengers to get out

of the car, and opened the driver's door. In doing so, the detective was able to

get an even better view of the object and confirmed at it was a handgun. At all

times, Detective Forde was "lawfully in the viewing area"; did not know in

advance that a gun would be found when he first saw it under the seat; and knew

immediately it was "evidence of crime" from the fact it was a gun that defendant

was frantically attempting to conceal. Ibid.

      Therefore, we reject defendant's contentions on this point.




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                                       III.

      In Point II of his brief, defendant asserts that the trial court incorrectly

evaluated the aggravating and mitigating factors in determining his sentence.

See  N.J.S.A. 2C:44-1(a) and 1(b). Again, we disagree.

      Trial judges have broad sentencing discretion as long as the sentence is

based on competent credible evidence and fits within the statutory framework.

State v. Dalziel,  182 N.J. 494, 500-01 (2005). Judges must identify and consider

"any relevant aggravating and mitigating factors" that "are called to the court's

attention" and "explain how they arrived at a particular sentence." State v. Case,

 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon,  202 N.J. 283, 297

(2010)). "Appellate review of sentencing is deferential," and we therefore avoid

substituting our judgment for the judgment of the trial court. Id. at 65; State v.

O'Donnell,  117 N.J. 210, 215 (1989); State v. Roth,  95 N.J. 334, 365 (1984).

      We are satisfied the trial court made findings of fact concerning

aggravating and mitigating factors that were based on competent and reasonably

credible evidence in the record, and applied the correct sentencing guidelines

enunciated in the Code. Accordingly, we discern no basis to second-guess the

sentence.

      Affirmed.


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