Opinion
DOCKET NO. A-4506-13T4
02-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. QUAM WILSON, a/k/a G. WILSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-12-2041. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following the denial of his motion to suppress evidence seized without a warrant, defendant Quam Wilson pled guilty to third-degree possession of a controlled dangerous substance within 1000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7, and was sentenced in accord with a negotiated agreement to eight years in State prison with four years of parole ineligibility pursuant to the Brimage guidelines. He appeals challenging both the denial of his motion and his sentence. Because we detect no error in either, we affirm.
The facts elicited by the State at the suppression hearing are easily summarized. Neptune police received a tip from a confidential informant that an individual known as Greedy, whom the police knew as defendant, had three guns and was driving an orange Dodge Challenger with New York plates to an apartment complex in Asbury Park. Armed with the information, a detective in a marked patrol car spotted the Challenger as it made a left turn on a red light. The detective activated the patrol car's lights, and the Challenger pulled over to the curb. As the detective walked toward the car, however, it sped away.
Two patrol cars with lights and sirens gave chase. The officers estimated that the Challenger was traveling at speeds of close to one hundred miles per hour through a residential area. The driver eventually abandoned the car and started running. An officer followed on foot and watched as the suspect tossed away a small object. When the suspect finally heeded the officer's command to stop running, he was arrested after a brief struggle and charged with eluding and resisting arrest in addition to drug offenses.
The arresting officer identified the suspect as defendant from prior encounters. When the officer retrieved the package discarded by defendant from the sidewalk, he found a wrapped plastic bag containing one hundred small glassine folds of a substance later confirmed to be heroin.
Defendant argued on the basis of the testimony that the confidential informant's tip did not provide a proper basis for the stop of defendant's car. Judge Vernoia acknowledged the argument, but found he did not need to reach the issue in order to uphold the seizure of the heroin.
Based on the "consistently credible" testimony of the officers, the judge found defendant illegally drove through a red light. The officer's observation of that "motor vehicle violation provided a wholly independent and proper basis to effectuate the initial motor vehicle stop." Further, relying on State v. Williams, 192 N.J. 1 (2007), the judge reasoned that even were the initial stop unlawful, defendant's act in eluding the officers precluded him from arguing he was entitled to suppression of the heroin, which the arresting officer had seized in plain view, and defendant had discarded in any event.
Defendant raises two issues on appeal.
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE LACKED A REASONABLE ARTICULABLE SUSPICION TO STOP THE ORANGE VEHICLE SINCE THE CONFIDENTIAL INFORMANT'S VERACITY AND BASIS FOR KNOWLEDGE COULD NOT BE CORROBORATED, AND BECAUSE THE TRIAL COURT'S FINDING THAT THE MOTOR VEHICLE STOP WAS BASED ON AN OBSERVED MOTOR VEHICLE VIOLATION THAT WAS INDEPENDENT FROM THE CONFIDENTIAL INFORMANT'S TIP CANNOT BE SUPPORTED.
POINT II
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO APPLY THE 371 "GAP TIME" DAYS AS REGULAR JAIL CREDIT.
Our standard of review on a motion to suppress is limited. We must defer to the trial court's factual findings, so long as they are supported by sufficient credible evidence in the record. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). Our review of the trial court's application of the law to the facts, however, is plenary. State v. Coles, 218 N.J. 322, 342 (2014). Applying those standards here, we affirm Judge Vernoia's denial of defendant's motion to suppress substantially for the reasons stated in the judge's cogent and comprehensive oral opinion from the bench on December 12, 2013.
Even were we to doubt the constitutionality of the stop here, which we do not based on the judge's careful fact finding, the judge found defendant eluded the officers, putting their lives and the lives of ordinary citizens at risk by his high speed flight. That finding, which is supported by sufficient credible evidence, means the case is squarely controlled by the Supreme Court's holding in Williams, that the exclusionary rule will not support suppression of evidence seized incident to defendant's lawful arrest for resisting or obstruction, regardless of whether the initial stop or seizure was lawful.
"[D]efendants have 'no right' to resist arrest, elude or obstruct the police, or escape 'in response to an unconstitutional stop or detention.'" State v. Herrerra, 211 N.J. 308, 335 (2012) (quoting State v. Crawley, 187 N.J. 440, 455, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006)). Accordingly, because the judge was correct that defendant's flight from the car stop was an intervening act that would, in any event, have purged the taint from an unlawful stop or seizure, we agree that the heroin recovered from the sidewalk should not have been suppressed. See Williams, supra, 192 N.J. at 15-16.
Defendant's argument that the 371 days the judge awarded as gap time should have been counted as jail credit under "a theory of equitable credit" is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).
The judge awarded credits in accordance with the calculation contained in the presentence report, which counsel conceded was accurate. Defendant was sentenced on an unrelated matter 371 days before his sentence in this case. While he was properly awarded jail credit against this sentence for the time he served in custody prior to being sentenced on the other charges, he was not entitled to jail credit for the 371 days intervening between that earlier sentence and the sentence in this case; only gap-time credit could be applied. "Under Hernandez, where gap-time credits are applicable, the judge has no discretion to award jail credits instead." State v. Rippy, 431 N.J. Super. 338, 348 (App. Div. 2013) (citing State v. Hernandez, 208 N.J. 24, 48-49 (2011)), certif. denied, 217 N.J. 284 (2014).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
State v. Brimage, 153 N.J. 1 (1998).