Opinion
DOCKET NO. A-5630-12T3
06-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NICHOLAS M. BARONE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 10-03-0542, 10-12-2127, and 11-04-0710. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After his motion to suppress was denied, defendant Nicholas M. Barone entered into a plea agreement with the State to resolve three pending indictments. Defendant pled guilty to count two of Indictment No. 10-03-0542, first-degree possession of a controlled dangerous substance (CDS) (phencyclidine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1); count one of Indictment No. 10-12-2127, second-degree eluding, N.J.S.A. 2C:29-2(b); and counts two, three, and six of Indictment No. 11-04-0710, second-degree possession of CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), second-degree possession of a weapon during a CDS offense, N.J.S.A. 2C:39-4.1(a), and second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7(b). Defendant was sentenced to an aggregate term of thirty years in prison with fifteen years of parole ineligibility.
Defendant now appeals and raises one argument:
POINT I
THE TRIAL COURT ERRED IN DENYING MR. BARONE'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE STATE FAILED TO PRESENT SPEC[I]FIC AND ARTICULABLE FACTS TO SHOW THAT THE WARRANTLESS PAT-DOWN OF MR. BARONE BY THE OFFICER WAS REASONABLE.
We glean the following facts adduced at the hearing on defendant's motion to suppress. Officer Arthur Reece of the Lavallette Police Department was the only witness to testify at the hearing and we briefly summarize his testimony.
On January 2, 2010 at 8:56 p.m., Reece was on patrol when he received a radio report of a suspicious vehicle at the corner of State Highway 35 South and Pennsylvania Avenue. He drove to that location and observed a white sport utility vehicle (SUV) parked on an angle to the curb, with the rear of the vehicle extending into the traffic lane with no lights on.
Reece, who was in uniform in a marked police vehicle, activated his lights and walked to the driver's side of the SUV. Reece observed defendant in the driver's seat, another man in the front passenger seat, and a juvenile in the rear seat. When Reece asked defendant for his license, registration, and proof of insurance, he noticed that defendant was sweating profusely and would not make eye contact. Defendant was unable to produce the requested documentation and instead offered a county identification card. When Reece asked him if he had a driver's license, defendant replied that he did not.
When Reece told defendant to get out of the SUV, he complied but assumed an "aggressive" stance with his fists clenched "looking all around like he was ready to fight with [Reece]." Reece asked defendant if he had any weapons and he responded, "I don't think so." This response, along with defendant's assertive stance and nervous demeanor, prompted Reece to pat defendant down. Reece felt a knife in defendant's left jacket pocket, but when he attempted to retrieve it, defendant pulled away and began to wrestle with Reece. Reece gained control and removed an eleven-inch, lock-blade knife. After a brief struggle, Reece placed defendant under arrest and handcuffed him.
Reece searched defendant pursuant to this arrest, and recovered three clear glass bottles containing a yellow liquid from defendant's right jacket pocket. Reece placed the bottles on the trunk of his police vehicle, but when a neighbor distracted Reece, defendant, although handcuffed, took one of the bottles and began to empty it on the ground. Reece grabbed the bottle and replaced the cap, saving as much of the liquid as he could.
Defendant was placed in the back seat of Reece's police vehicle and read his Miranda rights. The liquid was later tested and found to be phencyclidine (PCP).
On May 10, 2012, Judge Wendel E. Daniels filed a written decision denying defendant's motion to suppress. Judge Daniels filed an order denying the motion on June 18, 2012. In his decision, Judge Daniels first determined that the SUV was parked in an unlawful manner with the rear of the vehicle protruding into a lane of traffic. Thus, Judge Daniels determined that Reece had probable cause to believe that a traffic violation had occurred.
The judge next concluded that defendant's failure to produce his driving credentials, his failure to make eye contact with the officer, his profuse sweating, the time of night, and the fact that the officer was outnumbered justified Reece in asking defendant to step out of the car while Reece made further inquiry as to the ownership and documentation of the vehicle.
Finally, Judge Daniels found that Reece's pat down of defendant was supported by specific and articulable facts, including defendant's failure to present documentation, the aggressive stance assumed by defendant, his evasive response to Reece's question whether he possessed any weapons, the time of night, and his nervous behavior. Judge Daniels noted that the PCP was recovered after defendant had been placed under arrest for possession of the lock-blade knife. Relying on Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), and State v. Sims, 75 N.J. 337 (1978), Judge Daniels concluded that Reece had probable cause to arrest defendant for possession of a weapon and the subsequent search revealing the three vials was a permissible search pursuant to that arrest.
Defendant now claims that Judge Daniels erred because Reece's pat-down was not reasonable, and the knife and vials of PCP must be suppressed. This argument lacks sufficient merit to warrant any further discussion, Rule 2:11-3(e)(2), and we affirm based on Judge Daniel's comprehensive and detailed decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).