Opinion
DOCKET NO. A-0137-14T4
09-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GRADY A. BLUE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 12-05-0445 and 13-12-1530. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by HIGBEE, J.A.D.
Defendant Grady A. Blue appeals from his conviction and sentence for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). We affirm.
Defendant was charged under Indictment number 12-05-0445 with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (Count One); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (Count Two); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (Count Three); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (Count Four); third-degree possession of a controlled dangerous substance with intent to distribute near school property, N.J.S.A. 2C:35-7 (Count Five); and second-degree possession of a firearm while committing a controlled dangerous substance crime, N.J.S.A. 2C:39-4.1(a) (Count Six).
Defendant was subsequently charged under Indictment number 13-12-1530 with additional crimes. Specifically, he was charged with second-degree eluding, N.J.S.A. 2C:29-2(b) (Count One); third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7(a) (Count Two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (Count Five); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (Count Six).
The trial judge heard testimony and oral argument on a motion to suppress evidence. He subsequently issued an order and written opinion denying the motion. Defendant pled guilty to Count One of Indictment number 12-05-0445, unlawful possession of a handgun, and Count Six of Indictment number 13-12-1530, resisting arrest, downgraded to a fourth-degree crime. Pursuant to the negotiated plea agreement, the State agreed to recommend a five-year state prison term with three years of parole ineligibility for the unlawful gun possession charge, and a concurrent flat eighteen-month state prison term for the resisting arrest charge.
Defendant was sentenced on the gun possession conviction to seven years in state prison, including forty-two months without parole eligibility. Defendant also received a concurrent flat eighteen month sentence for the resisting arrest conviction. The remaining counts in Indictments numbered 12-05-0445, 13-12-1530, 13-09-0116, and the prosecutor's pre-indictment file number 14-1055, were all dismissed in accordance with the plea agreement.
On appeal defendant raises the following claims:
POINT I
THE COURT ERRED IN FAILING TO SUPPRESS THE GUN SEIZED FROM BLUE'S POCKET BECAUSE THE COURT'S FINDING THAT THE DETECTIVE CONDUCTED A PAT-DOWN FOR WEAPONS PRIOR TO SEIZING A
GUN WAS INCONSISTENT WITH THE RECORD EVIDENCE, AND THE DETECTIVE'S FAILURE TO CONDUCT A PAT[-]DOWN BEFORE SEIZING THE GUN WAS UNREASONABLE. THE DRUGS AND CASH FOUND DURING A SUBSEQUENT SEARCH MUST BE SUPPRESSED AS THE FRUIT OF THE INITIAL UNLAWFUL SEARCH.
POINT II
THE SENTENCE SHOULD BE VACATED BECAUSE THE JUDGE APPARENTLY CONCLUDED THAT THE FACT THAT DEFENDANT WAS CHARGED WITH A NEW OFFENSE PRIOR TO SENTENCING AUTOMATICALLY JUSTIFIED INCREASING HIS SENTENCE ABOVE THAT ORIGINALLY DEEMED TO BE APPROPRIATE UNDER THE PLEA AGREEMENT.
We first address the denial of the motion to suppress evidence. The State presented testimony from Detective James Udijohn at the motion to suppress. On December 30, 2011, Udijohn was working off-duty as a security officer at Kingsbury Square in Trenton (West Tower). The complex consists of two high-rise apartment towers and additional low-rise apartment buildings. One of his main responsibilities included "check[ing] ID's of guests who come into . . . each of the towers." Udijohn, who had been a law enforcement officer for over twelve years, was dressed in plain clothes and was carrying an off-duty handgun. The neighborhood was known to him as a "high-crime area" where people have been arrested for firearms possession and narcotics distribution.
At approximately 9:00 p.m., Udijohn was monitoring the complex's twenty-nine surveillance cameras when he observed two males with their heads covered by dark hooded sweatshirts walking toward the entrance of the complex's East Tower. Because Udijohn could not see their faces, he exited the West Tower to approach them and determine if they were residents of the East Tower, as the East Tower security guard was on his break. At the time, Udijohn had not observed any other individuals on the surveillance cameras.
There was only one other security guard on duty at the complex, Dominick Camillo, but he was stationed at the low-rise apartments. --------
As Udijohn exited the West Tower, he heard a gunshot from the area of the East Tower where he observed the two males on camera. While walking towards the East Tower, Udijohn observed the two males enter the lighted vestibule at the entrance of the East Tower, prompting him to run towards them. As he approached the vestibule, Udijohn observed defendant reach his left hand into the front pocket of his sweatshirt. Udijohn, fearing the men might be armed, ordered them to place their hands on the wall.
Udijohn recognized defendant's companion, J.C., and was familiar with him as a person known to carry firearms. Udijohn frisked J.C. for weapons, and after none were found on his person, instructed J.C. to leave the scene. Turning his attention to defendant, Udijohn could see a bulge in the front pocket of his sweatshirt. Moreover, Udijohn observed the pocket to be weighed down by an object that, based on his experience and training, had the "size and shape" of a handgun.
Udijohn testified, "I heard a gunshot and I was in fear that these individuals may be armed and quite frankly I didn't have time. I needed to pat them down and check them for weapons." Udijohn frisked defendant, then "reached in to his hooded sweatshirt and grabbed the handgun." Although at one point during his testimony Udijohn said he did not know the contents of the pocket prior to seizing the gun, the entirety of his testimony supports the motion judge's finding that he reasonably believed defendant's sweatshirt concealed a gun. Udijohn's affidavit of probable cause and investigation report, which were appended to the State's trial brief, indicated that prior to the seizure Udijohn felt the pocket of defendant's sweatshirt and immediately identified the object inside the pocket to be a handgun. Although not marked into evidence at the suppression hearing, these documents were part of the record before the court.
Defendant was subsequently arrested. Before the arrest, Udijohn called Camillo for backup, who arrived soon thereafter. A search of defendant's person incident to arrest revealed one piece of suspected crack-cocaine wrapped in a plastic Taco Bell bag and $295.
We have considered defendant's challenge to the validity of the search. We conclude his claim of no probable cause to justify the search and seizure of the handgun from defendant's sweatshirt pocket lacks merit under the totality of the circumstances.
When reviewing a determination on a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). We do so, noting those findings "are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Mann, 203 N.J. 328, 336-37 (2010) (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). The trial court's factual findings are "entitled to deference 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). However, legal determinations based on those findings are afforded no deference and are subject to our de novo review. Gamble, supra, 218 N.J. at 425.
A warrantless search or seizure is presumably invalid, "unless it falls within one of the recognized exceptions to the warrant requirement" and there exists probable cause. State v. Moore, 181 N.J. 40, 44 (2004); State v. Valencia, 93 N.J. 126, 133 (1983). One such exception is found in the "plain-feel doctrine." See Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137, 124 L. Ed. 2d 334, 345-46 (1993); State v. Toth, 321 N.J. Super. 609, 614-15 (App. Div. 1999), certif. denied, 165 N.J. 531 (2000).
In Toth, the Appellate Court applied the plain-feel doctrine established by the United States Supreme Court which held
[i]f a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.
[Toth, supra 321 N.J. Super. at 614 (quoting Dickerson, supra, 508 U.S. at 375-76, 113 S. Ct. at 2137, 124 L. Ed. 2d at 346).]
Further, probable cause is supported by the "totality of the circumstances." Ibid. More specifically, "probable cause requires nothing more than 'a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Id. at 615 (alteration in original) (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)).
Here, defendant does not contest the validity of the investigative stop or the legality of a limited frisk of defendant's outer clothing. Instead, defendant argues no evidence exists in the record supporting the trial judge's finding that Udijohn conducted a protective search or frisk of defendant prior to retrieving a handgun from his front sweatshirt pocket. We disagree. On re-direct, Udijohn testified, "I heard a gunshot and I was in fear that these individuals may be armed and quite frankly I didn't have time. I needed to pat them down and check them for weapons."
Defendant's argument that there was not probable cause to justify a search and seizure of the handgun from defendant's sweatshirt is without merit. Udijohn heard a gunshot in the vicinity of the apartment complex and had observed only defendant and J.C. on the complex's twenty-nine surveillance cameras. He further testified that he approached them, observed a bulge weighing down defendant's front sweatshirt pocket, and believed the "size and shape" of the object was consistent with a handgun. Additionally, Udijohn observed defendant reach his hand into the sweatshirt pocket. After Udijohn frisked J.C. without discovering a gun, defendant was the only other person who logically could have possessed a gun in the vicinity.
Even if Udijohn did not pat-down defendant before seizing the gun, exigent circumstances existed for a search of defendant's sweatshirt as Udijohn was reasonably in fear for his life. Udijohn was alone with a man with a bulge in his sweatshirt that looked like a gun and he had just heard a gunshot fired from that exact location. With no other suspects in the area, there was probable cause for him to believe defendant had illegally shot the weapon he heard, and that the gun was located in defendant's sweatshirt where defendant could easily access it. Udijohn faced circumstances of imminent peril and was trying to protect the tenants and himself in a crime-ridden area. Based on the totality of the circumstances, we conclude Udijohn had probable cause to reach into defendant's front sweatshirt pocket and seize the handgun.
Next, we address defendant's argument that the trial judge erred by "increasing his sentence above that originally deemed to be appropriate under the plea agreement." Defendant also claims the trial judge "ignored the mitigating factor that the offense was [defendant]'s first conviction, and failed to indicate why the aggravating factors justified increasing the sentence." Finally, defendant claims the judge erred by increasing the term of parole ineligibility from three years, as originally stated in the plea bargain, to three-and-one-half years, without finding the aggravating factors substantially outweighed the mitigating factors.
Defendant entered into the aforementioned plea agreement which specifically states "[i]f defendant is charged with another crime prior to sentencing, the recommended sentence will be revoked and the State will ask for a higher sentence." At the plea hearing, defendant acknowledged this contingency in the following colloquy:
[JUDGE]: And obviously if you . . . pick up another crime - -
[DEFENDANT]: I already know.
[JUDGE]: - - the plea offer stands, but you risk being sentenced to something worse than what this is. Do you understand that?
[DEFENDANT]: Yes.
At sentencing, it became apparent defendant was charged with additional crimes following his plea hearing. Pursuant to the plea agreement, which permitted the prosecutor to seek a longer sentence, the State recommended an aggregate sentence of seven years in state prison including a forty-two-month period without parole eligibility, which the judge imposed.
Defense counsel asserted that mitigating factor seven applied, given defendant had no prior convictions. With respect to factor three, the prosecutor noted defendant's multiple contacts with the law, including "three new files with the prosecutor's office" since the underlying charges were filed, along with "murder charges" that were filed after defendant's guilty plea in this case. Regarding factor nine, the prosecutor argued "[n]eed for deterring is always a factor that the Court can impose as — you know, look at as an aggravating factor." Finally, with respect to mitigating factors, the prosecutor simply made the statement that "there's no mitigating factors here."
The judge found aggravating factor three, "the risk defendant will commit another offense," and aggravating factor nine, "the need for deterring others from violating the law." The judge also found there to be no mitigating factors, and that the "aggravating [factors] outweigh the mitigating."
When reviewing a sentence, we must afford trial courts "great deference and '[j]udges who exercise discretion and comply with the principles of sentencing remain free from the fear of second guessing.'" State v. Dalziel, 182 N.J. 494, 501 (2005) (alteration in original) (quoting State v. Megargel, 143 N.J. 484, 494 (1996)). If "the proper legal principles have not been applied or the facts found by the [trial] judge are not supported by the record . . . it is for the [trial] judge to resentence[.]" Dalziel, supra, 182 N.J. at 501-02.
The Supreme Court in State v. Roth, 95 N.J. 334, 365 (1984), established the principles we must follow when reviewing a sentence.
[We must] determine, first, whether the correct sentencing guidelines . . . have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts, the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.
[Id. 365-66.]
The judge "must 'state reasons for imposing such sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence.'" State v. Fuentes, 217 N.J. 57, 73 (2014) (omission in original) (quoting R. 3:21-4(g)).
We determine the State was not bound by its prior recommendation which was contingent on no new arrests or new charges being filed against defendant before sentencing. In 1993, the Supreme Court held "[t]he Legislature would surely not intend to tie the hands of prosecutors to a grant of lenity when a defendant renews criminal activities between plea and sentence" when "one of the conditions for the grant of lenity was that [the] defendant not be re-arrested before sentence." State v. Shaw, 131 N.J. 1, 14 (1993). See also State v. Jaffe, 220 N.J. 114, 116 (2014) (The court should assess a defendant "as he stands before the court on the day of sentencing" and "must consider a defendant's relevant post-offense conduct in weighing aggravating and mitigating factors.").
Defendant's other arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
We affirm the conviction and the sentence. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION