Opinion
DOCKET NO. A-2464-11T4
07-15-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL J. BRACISZEWSKI, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 10-07-0716.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant was convicted of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(b), and one count of fourth-degree possession of prohibited devices, N.J.S.A. 2C:39-3(f)(1). At sentencing, the court imposed a five-year aggregate custodial term with a three-year period of parole ineligibility, pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). On appeal, defendant raises the following points for our consideration:
POINT I
THE STATEMENT OBTAINED AFTER MR. BRACISZEWSKI WAS ARRESTED AND CONFRONTED WITH THE GUN POLICE FOUND IN HIS CAR SHOULD HAVE BEEN SUPPRESSED SINCE THE STATE FAILED TO SHOW BEYOND A REASONABLE DOUBT THAT THE APPELLANT WAIVED HIS RIGHT TO REMAIN SILENT.
(U.S. CONST.[] AMENDS. V AND XIV; N.J. CONST. (1947)[] ART[.] I, [¶] 7) (RAISED BELOW).
POINT II
THE EVIDENCE OBTAINED AS A RESULT OF THE WARRANTLESS CAR SEARCH AND SUBSEQUENT CONSENT SEARCH SHOULD HAVE BEEN SUPPRESSED SINCE THE TROOPER HAD NO LEGAL RIGHT TO SEARCH THE VEHICLE. (U.S. CONST.[] AMENDS. IV AND XIV; N.J. CONST. (1947)[] ART[.] I, [¶] 7) (RAISED BELOW).
POINT III
THE TRIAL JUDGE'S ANSWER TO THE JURY QUESTION OF WHETHER KNOWLEDGE WAS AN ELEMENT OF POSSESSION OF A WEAPON WITHOUT A PERMIT CONFUSED THE JURY AND LEFT THEM UNSURE OF AN ESSENTIAL ELEMENT OF THE CRIME, THEREBY DEPRIVING THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL (U.S. CONST.[] AMENDS. V, VI AND XIV; N.J. CONST. (1947)[] ART. I, [¶] 1, 9 AND 10) (RAISED BELOW).
POINT IV
THE SENTENCE WAS EXCESSIVE AS THE COURT FAILED TO CONSIDER THE DEFENDANT'S REQUEST FOR SENTENCING TO A GRAVES ACT ALTERNATIVE SENTENCE AND IGNORED MITIGATING FACTORS PRESENTED IN THE RECORD WHEN SENTENCING MR. BRACISZEWSKI TO A TERM OF FIVE YEARS OF IMPRISONMENT WITH A THREE-YEAR PERIOD OF PAROLE INELIGIBILITY.
A. THE TRIAL JUDGE SHOULD HAVE CONSIDERED THE DEFENDANT'S REQUEST FOR A NON-CUSTODIAL SENTENCE BEFORE IMPOSING A SENTENCE OF INCARCERATION.
B. THE TRIAL JUDGE IGNORED MITIGATING FACTORS THAT WERE PLAINLY PRESENTED IN THE RECORD AND FAILED TO RECOGNIZE HIS DISCRETION, WHICH REMAINED EVEN WHEN SENTENCING PURSUANT TO THE GRAVES ACT, TO SENTENCE MR. BRACISZEWSKI AS A THIRD-DEGREE OFFENDER.
i. MITIGATING FACTOR ONE OR TWO: THE DEFENDANT'S ACTIONS NEITHER CAUSED NOR THREATENED SERIOUS HARM OR HE DID NOT CONTEMPLATE THAT HIS CONDUCT WOULD CAUSE OR THREATEN SERIOUS HARM.
ii. MITIGATING FACTOR EIGHT: THE CONDUCT WAS A RESULT OF CIRCUMSTANCES UNLIKELY TO RECUR.
iii. MITIGATING FACTOR ELEVEN: THE IMPRISONMENT OF THE DEFENDANT WOULD ENTAIL EXCESSIVE HARDSHIP TO HIMSELF OR HIS DEPENDENTS.
I.
The charges arose out of a roadside incident during which defendant's vehicle was stopped because it was disabled. Prior to trial, defendant moved to suppress evidence subsequently seized from his vehicle. The State presented one witness, New Jersey State Trooper Brian Murray. Defendant testified on his own behalf.
According to Trooper Murray, he had been travelling on the opposite side of the roadway when he observed the disabled vehicle on the other side of the roadway. He turned around and approached defendant's vehicle to perform community caretaking functions. A warrant check revealed an outstanding warrant for defendant regarding a minor traffic violation. The trooper arrested defendant, and a search incident to arrest revealed an Advil bottle, which had expired ten years earlier. The bottle contained various pills. Defendant's wife and children arrived, and Trooper Murray asked them to leave.
Next, Trooper Murray attempted to secure the vehicle and looked in the vehicle for a key, but found no key in the ignition. The trooper then had a discussion with defendant about where the key could possibly be located. He then returned to the vehicle, but once again could not locate the key. He spoke to defendant again, and when he went back to the vehicle a third time to search for the key, he saw a partially exposed handgun wedged in the seat cushion on the passenger side of the vehicle in plain view.
Defendant consented to the search of his vehicle after reading the consent to search form and after Trooper Murray advised defendant that he had the right to refuse his request. The search yielded twelve rounds of hollow point bullets, a magazine fully loaded with hollow point bullets, marijuana, and rolling papers.
Defendant testified that he was travelling on Interstate 295 when his truck ran out of gas and something happened to his fuel tank. He telephoned his wife, who was about one mile ahead of him. He saw a trooper approaching and was "happy" to see him. The trooper informed him that there was a problem with his driver's license and that he had to step out of his vehicle. He was never told there was an outstanding warrant until after the trooper "cuffed [him]." He never received the warrant, and when he filled out a form at the Burlington County Jail to satisfy any outstanding warrants, none could be found. When the trooper asked him for his car keys, he told Trooper Murray that he had lost the door key to the truck, but that he was able to enter the truck without a key. He stated he had a permit to carry a weapon in Pennsylvania, but not for New Jersey. He denied knowing that a gun was inside of his truck. He indicated that he left the gun in a lock box in his big locker at the job site where he was building homes. Following his release from jail, one of his employees told him that he had, in fact, placed the gun in the truck.
Judge Michael Haas denied the motion, crediting the trooper's testimony over defendant's testimony, and found that in searching for the key, the trooper was in fact responding to defendant's concern over his personal property, particularly a blue tooth device and a laptop. The judge specifically found that Trooper Murray was performing a community caretaking function and that the trooper did not make up the fact of an outstanding warrant. He also specifically noted, from his review of the contemporaneous video recording of the incident, that "defendant said, at least twice, 'I have a computer in there' and later he says 'I have a blue tooth in there'." Judge Haas further found:
He's very concerned about just leaving this on there. I don't hear him saying don't worry about the key, just lock it and I'll somehow be able to get back in. He's giving him directions as to where to look for the key. And the first time the trooper goes back, he is getting in on the passenger side because it's safer that way. Nobody testified but it makes sense, that's how he brought the defendant out, and he didn't tell the defendant, oh, you have a warrant, come out of the car. He says[,] hop out ofBased upon these findings the judge concluded the weapon was observed in plain view, and denied the motion.
the car for me, and then he tells him. I don't think that was improper. You want to get him out. Once he's out of the car, you can give him the bad news. If you give folks the bad news like that while they're in there, they may do something that they'll regret later. And I think it's just a safety precaution not to let them know right away until you get them out what's going to happen. I don't think there was any, and I don't find there was any problem with that.
He goes over the passenger seat and he's looking in the ignition and he's not there that long that time and he comes back and there's another discussion about where the keys could be and defendant gives him more precise instructions. Look under a computer bag, a gray bag I think is what he said. Look under that. There's a laptop bag and he went back to look for it. He ends up finding two keys and the video shows him trying the keys to see if it will turn the lock and those aren't them.
Defendant still wants the vehicle secured. He goes back and he says he's a little bit frustrated but he didn't sound angry to me. It was like, where are the keys[,] I think is what he said. Defendant again tells him he has keys, they have to be there and he goes back in and he's looking and he sees wedged into the passenger seat the gun partially out and there's the gun . . . .
II.
Our review of the denial of a suppression motion is limited. State v. Handy, 206 N.J. 39, 44 (2011). We consider the trial court's underlying factual findings to which we defer "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations and internal quotation marks omitted). Such factual determinations will not be disturbed, even if an opportunity for independent review could lead to a different conclusion. State v. Johnson, 42 N.J. 146, 162 (1964). However, whether established facts warrant the grant or denial of a suppression motion is a legal question subject to de novo review. Handy, supra, 206 N.J. at 45. Moreover, a trial court's legal conclusions are not afforded the same deference. Ibid. "When a question of law is at stake," appellate review is plenary. State v. Mann, 203 N.J. 328, 337 (2010).
Applying these standards, we find no basis to disturb Judge Haas's factual findings. We therefore turn to our plenary review of the legal issues.
"[W]arrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions. Both constitutional standards require that such seizures or searches be conducted pursuant to a warrant issued upon a showing of probable cause." State v. Pineiro, 181 N.J. 13, 19 (2004) (citations omitted). "Because our constitutional jurisprudence evinces a strong preference for judicially issued warrants, the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure [into a dwelling] falls within one of the few well-delineated exceptions to the warrant requirement." Elders, supra, 192 N.J. at 246 (citations and internal quotation marks omitted).
One exception to the warrant requirement is the plain view exception, which the trial court concluded applied to the facts in the present matter. Under the plain view exception, three requirements must be satisfied:
First, the police officer must be lawfully in the viewing area.With respect to the third requirement, "in order to seize evidence in plain view[,] a police officer must have probable cause to associate the item with criminal activity." Ibid. (quoting Bruzzese, supra, 94 N.J. at 237).
Second, the officer has to discover the evidence inadvertently, meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. Third, it has to be immediately apparent to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.
[Mann, supra, 203 N.J. 328, 341 (2010) (citing State v. Bruzzese, 94 N.J. 210, 236 (1983)) (internal quotation marks omitted).]
We concur, as Judge Haas determined, the plain view exception applied. We note defendant does not challenge that the officer's purpose at the scene was to perform a community caretaking function. Thus, the trooper was lawfully on the scene. The evidence also supports the conclusion that Trooper Murray was looking for keys to the truck in order to secure it, rather than specifically looking for contraband. Consequently, the discovery of the gun was inadvertent. Finally, there is no evidence that defendant had a permit to carry a weapon. Hence, he had probable cause to believe the gun was contraband. Given that all of the requirements for application of the plain view doctrine were met, defendant's suppression motion was properly denied.
III.
We decline to consider defendant's claim in Point I that the statements he made to Trooper Murray after the weapon was found in his truck should have been suppressed. He failed to seek suppression of any statements he made before the trial court. Generally, issues not raised before the trial court, even those implicating constitutional issues, will not be considered on appeal. State v. Arthur, 184 N.J. 307, 327 (2005). Defendant claims he raised the issue below, but the record does not support this contention, as there was no argument advanced before the trial court relative to any statements defendant made to Trooper Murray which should be suppressed. Nor did the brief submitted on defendant's behalf seek suppression of any statements defendant made to Trooper Murray. Instead, the brief in support of the suppression motion seeks one remedy, suppression of the gun seized because it was not found in plain view. Although Judge Haas, in his oral opinion, stated, "So for all those reasons, I'm going to deny defendant's motion to suppress the evidence and/or suppress the statement in this case[,]" neither party adduced any evidence during the suppression hearing related to any Miranda issues, and the court's opinion did not address any Miranda issues. Moreover, the statements defendant made leading up to the discovery of the gun can hardly be viewed as incriminating. By his own admission, he was not questioned about the warrant for which he was arrested. Rather, he was merely told there was a problem with his license. The only incriminating statement he made related to the prescription pills recovered, for which he was never indicted or prosecuted.
The remaining arguments advanced in Points III and IV are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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).