Opinion
DOCKET NO. A-0170-12T1
03-05-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARIUS A. BLOUNT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Laura C. Sunyak, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-02-0316.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Laura C. Sunyak, on the brief). PER CURIAM
Following the denial of his motion to suppress evidence seized in a warrantless search, defendant Darius Blount pled guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. In accordance with a negotiated agreement in which the State agreed to recommend the minimum sentence, the judge sentenced defendant to a term of five years, with a mandatory three-year period of parole ineligibility and imposed the required assessment of fees and penalties. As authorized by Rule 3:5-7(d), defendant appeals from the denial of his motion to suppress the handgun found on his person, and challenges his sentence as excessive. Finding no basis to disturb Judge Ronald Reisner's factual findings or legal conclusions, we affirm.
Officer Kamil Warraich of the Asbury Park Police Department was the only witness to testify at the suppression hearing. According to Officer Warraich, he and two other officers assigned to the street crimes unit were patrolling the Washington Avenue area in an unmarked police car on October 5, 2010. The officers knew the neighborhood as a high crime area in which numerous shootings and a recent homicide had occurred.
As the officers' car approached the intersection of Washington Avenue and Jersey Street, Officer Warraich observed defendant walking on the sidewalk. When defendant saw the officers' car, he immediately placed his hands in the front pocket of his hooded sweatshirt. Continuing to look in the direction of the officers, defendant abruptly crossed the street in front of their car and narrowly missed being hit by another travelling in the same direction.
Officer Warraich pulled alongside defendant, who had continued to glance back at the officers' car, and asked whether he was OK. The officer remained in the car and directed the other officers to do the same. He testified that defendant appeared confused and was tripping over his words. The conversation with defendant was friendly, but the officer saw him manipulate an object in his sweatshirt pocket, which caused the officer to get out of the car.
As the officer approached, defendant bladed his body, angling his pocket away from the officer's view. Officer Warraich testified at that point he became concerned for his safety, and advised defendant that he was going to pat him down for weapons. When the officer placed his hands on the outside of defendant's sweatshirt, he immediately felt what he believed to be a handgun. Directing defendant to remain still, the officer reached into the pocket of defendant's sweatshirt and removed a Davis Industries .38 special, Derringer style handgun.
Judge Reisner denied defendant's motion to suppress in a written opinion. He found Officer Warraich a credible witness, who answered all questions responsively and "did not evade or fence with opposing counsel on cross-examination." Judge Reisner wrote that
[t]he State's version of this case reads almost as a text book example of a legal Terry[] frisk. The officers approached the defendant to engage in a lawful "field inquiry." While engaging in conversation with the defendant, he appeared nervous, glanced around, and manipulated an object in his pocket. When the officer exited the vehicle, the defendant bladed his body away from the officer as if he was hiding something from the officer's view. At this point, based on defendant's actions, the officer believed that the defendant may have had a weapon in his pocket and posed a risk to his safety. Accordingly, the officer was legally justified in performing a pat down of the defendant's outer clothing. The pat down was limited to the outer clothing, and the officer began his pat down right where he believed the defendant had a weapon. Based on his training and experience, the officer immediately felt what he recognized as a handgun. This resulted in the officer being justified for the immediate seizure of the gun. Accordingly, the gun was properly seized from the defendant.
Terry v. Ohio, 392 U.S. 1, 21-27, 88 S. Ct. 1868, 1880-83, 20 L. Ed. 2d 889, 906-09 (1968).
We defer to the trial court's factual findings on a motion to suppress, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007). Our review of the trial court's application of the law to the facts, however, is plenary. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999). Applying those standards here, we affirm Judge Reisner's denial of defendant's motion to suppress substantially for the reasons stated in the judge's written opinion.
A field inquiry, such as the one Officer Warraich undertook, "may be conducted 'without grounds for suspicion'" or probable cause. State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). There is no question but that the officer moved beyond a field inquiry and detained defendant when the officer caught hold of defendant's hands and conducted a pat down search. A detention following a field inquiry is impermissible absent "'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." Ibid. (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906).
In order to frisk a suspect detained to confirm or dispel reasonable suspicion of criminal activity, an officer must have "'reason to believe that he is dealing with an armed and dangerous individual[.]'" State v. Privott, 203 N.J. 16, 25 (2010) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). To determine the lawfulness of police conduct in these "'police-citizen encounter[s],'" courts "evaluate the totality of circumstances" and "'balanc[e] the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions.'" Id. at 25-26 (quoting State v. Davis, 104 N.J. 490, 504 (1986)).
Our review of the record convinces us that Judge Reisner's findings that the officer reasonably suspected that the object defendant was fingering in his pocket may have been a weapon, which posed a threat to the officer's safety, were based on substantial credible evidence in the record, and that he correctly applied the law to the facts as set forth in his careful and thorough written opinion. Accordingly, we affirm the order denying the motion to suppress the handgun seized from defendant.
We also reject defendant's argument that his sentence was excessive. Judge Reisner imposed the lowest sentence within the ordinary term range applicable to this second-degree crime, five years, N.J.S.A. 2C:43-6a(2), and the three-year period of parole ineligibility mandated by the Graves Act. N.J.S.A. 2C:43-6(c).
Defendant was twenty years old at sentencing. In the weeks before his arrest, someone had shot at the home where he lived with his parents and siblings. Defendant believed that he knew the person responsible, and that the person remained in the area. The judge accepted defendant's explanation that he was carrying the handgun for his own protection and the protection of his family but rejected defense counsel's argument that mitigating factor two, that defendant did not contemplate that his conduct would threaten serious harm, N.J.S.A. 2C:44-1b(2), applied. The judge noted that the Legislature has made a judgment that carrying a handgun without a permit is a serious second-degree offense, which warrants incarceration and a period of parole ineligibility. In making a conscious decision to carry a handgun without a permit, even for one's own protection, one contributes to the risk of an unacceptable level of gun violence and that others will be harmed without lawful justification.
The judge's reasoning is consistent with the Supreme Court's reasoning in State v. Harmon, 104 N.J. 189, 208-09 (1986): "[T]he policies embodied in our gun control laws, N.J.S.A. 2C:39-3 and -5, would not allow self defense as an excuse or justification to a charge of unlawful possession under a regulatory offense when a person arms himself prior to a danger becoming imminent. Only in those rare and momentary circumstances where an individual arms himself spontaneously to meet an immediate danger should the justification afforded by N.J.S.A. 2C:3-4 be considered." Defendant did not ask the judge to consider the mitigating factor set forth in N.J.S.A. 2C:44-1b(4), and he does not raise that issue on appeal.
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The judge further acknowledged defendant's significant juvenile record in finding that aggravating factors three, the risk that defendant would commit another offense, and nine, the need to deter, N.J.S.A. 2C:44-1a(3) and (9), outweighed mitigating factors seven, no prior criminal record, and ten, that defendant was particularly likely to respond affirmatively to probationary treatment, N.J.S.A. 2C:44-1b(7) and (10). We are satisfied that the judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Fuentes, _ N.J. _, _, 2014 N.J. LEXIS 2, *22-23 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Finally, we discern no basis to conclude the prosecutor was arbitrary, capricious or unduly discriminatory in not seeking a waiver under N.J.S.A. 2C:43-6.2, the "escape valve" provision of the Graves Act. See State v. Mastapeter, 290 N.J. Super. 56, 64-65 (App. Div.), certif. denied, 146 N.J. 569 (1996). Defense counsel asked the court to impose sentence consistent with the plea agreement. We likewise conclude that the judge did not abuse his discretion by not suggesting a waiver, notwithstanding the concerns he expressed on the record about defendant's youth and the lack of discretion available to the court in sentencing on a Graves Act offense.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION