Opinion
DOCKET NO. A-3463-13T2
09-02-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARRYL J. BRADLEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Geoffrey S. Brounell, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-10-2340. Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Geoffrey S. Brounell, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Pursuant to an agreement negotiated with the State, defendant Darryl J. Bradley pled guilty in October 2013 to one count of a five-count indictment, which charged him in count five with second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). As part of the agreement, the State agreed to dismiss the other four counts of the indictment and to recommend a custodial sentence of five years, with a mandatory parole ineligibility period of three years. Consistent with Rule 3:5-7(d), the agreement also preserved defendant's right to appeal the trial court's earlier denial of his pretrial motion to suppress the loaded handgun, which police had seized from his automobile after stopping his vehicle by the Walt Whitman Bridge. As contemplated, the trial court sentenced defendant in November 2013 to a five-year custodial term with a three-year parole disqualifier.
Defendant now appeals the suppression ruling. He also contends that his sentence is excessive. For the reasons that follow, we affirm.
I.
The following pertinent facts emerged at the August 28, 2013 suppression hearing.
At approximately 4:45 a.m. on April 12, 2012, New Jersey State Police Trooper Heather Sysol received a call alerting her that a "black female [was] on the side of the road around milepost 18" on the Atlantic City Expressway. Upon arriving at that location, Trooper Sysol met a "screaming" woman with injuries to "her feet, her knees, her hands, [and] her buttocks" who claimed that she had "jumped from a car" driven by defendant after he had pointed a gun at her. Trooper Sysol called in the information supplied to her by the woman, which included the "make of the vehicle, a description of [defendant], [and defendant's] address." The woman described the car as a gold Cadillac sedan.
At some point thereafter, Delaware River Port Authority Patrolman John Fuscellaro received a resultant "be-on-the-lookout" (or "BOLO") alert from central dispatch for an aggravated assault involving a man driving a gold Cadillac. Officer Fuscellaro's normal post included the Walt Whitman Bridge. Evidently, the BOLO alert further advised Fuscellaro that there was also a gun involved.
At approximately 5:20 a.m., Officer Fuscellaro observed a gold Cadillac crossing the Walt Whitman Bridge from New Jersey into Pennsylvania. After confirming the registration with central communications, Fuscellaro "followed [the] vehicle across the bridge westbound the entire length of the bridge where [he and defendant] approach[ed] the toll plaza." As Fuscellaro described in his testimony at the hearing, he waited to pull the Cadillac over until after reaching the Pennsylvania side, because there is "no safe area or location" to pull over on the Walt Whitman Bridge.
Officer Fuscellaro described the location of the stop as "approximately [two hundred] feet prior to the tolls on the right shoulder" of westbound Route I-76. At the time of the stop — approximately 5:30 a.m. — there were four lanes of travel going westbound, which subsequently "open[ed] up to 15 toll lanes." The early morning weather that day was described as "clear, [and] dry," with "fairly light" traffic that was expected to "pick up" later in the morning.
Officer Fuscellaro then initiated what he termed a "felony motor vehicle stop," based on the information he received in the BOLO alert that there "may be a gun in the vehicle." After Fuscellaro was joined by Sergeant Matthew Gorman, he asked defendant to step out of the vehicle. Fuscellaro physically moved defendant to the rear of the Cadillac, where Fuscellaro conducted a "pat down to see if there were any weapons" on defendant's person.
During the course of the pat down, defendant told Officer Fuscellaro, "there's a gun in the center console. You can go ahead and check." Having overheard this, Seargent Gorman immediately went into the Cadillac's center console and removed from it a loaded Ruger semi-automatic pistol. The pistol contained a chambered hollow-point round.
Defendant was placed in handcuffs and brought to the Atlantic City Expressway police station. By this time, at least one other Trooper had arrived on the scene and waited with the car until it was removed from the roadway.
Defendant later signed a consent-to-search form. He was present during the full search of the vehicle which took place at approximately 8:00 a.m.
On October 9, 2012, an Atlantic County Grand Jury indicted defendant with third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count one); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count two); fourth-degree possession of hollow point ammunition, N.J.S.A. 2C:39-3(f) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five).
Defendant filed a motion to suppress evidence of both the seized handgun as well as the associated statements he made during the traffic stop. After considering the officers' testimony at the suppression hearing and the arguments of counsel, the trial court denied defendant's motion to suppress in an order dated April 29, 2013. Among other things, the trial judge found in his oral opinion that the circumstances were sufficiently exigent under State v. Pena-Flores, 198 N.J. 6, 18 (2009) to justify the warrantless seizure of the gun defendant had identified.
Plea negotiations ensued following the suppression ruling, resulting in the negotiated terms we have already described. Defendant pled guilty to count five in accordance with the agreement.
At sentencing, the trial court found aggravating factors three and nine, i.e., N.J.S.A. 2C:44-1(a)(3) (risk of re-offense) and N.J.S.A. 2C:44-1(a)(9) (need for deterrence) applied, as well as mitigating factors seven and nine, i.e., N.J.S.A. 2C:44-1(b)(7) (lack of prior history of criminal activity) and N.J.S.A. 2C:44-1(b)(9) (lack of likelihood to commit another offense).
Although recognizing that defendant "d[id] seem to have made it this far in life without any criminal involvement," the judge was nonetheless troubled by this "instan[ce] of such extraordinarily bizarre nature," in which defendant reportedly had assaulted a women at gunpoint, before being apprehended on the road. The judge concluded that the aggravating factors, specifically "the need for deterrence," outweighed the mitigating factors, and warranted the minimum sentence of five years with a three-year period of parole ineligibility recommended by the State and consistent with the Graves Act, N.J.S.A. 2C:43-6(c).
On appeal, defendant raises the following points in his brief:
POINT I
ALL OF THE ITEMS SEIZED FROM DEFENDANT'S CAR SHOULD HAVE BEEN SUPPRESSED AS FRUITS OF AN ILLEGAL WARRANTLESS SEARCH. BECAUSE NO EXIGENT CIRCUMSTANCES EXISTED THAT COULD JUSTIFY NOT OBTAINING A WARRANT, THE ENTRY INTO AND SEARCH OF THE VEHICLE AND ITS CONTENTS WAS UNCONSTITUTIONAL.
POINT II
DEFENDANT SHOULD HAVE BEEN SENTENCED AS IF HE WERE CONVICTED OF A THIRD DEGREE OFFENSE PURSUANT TO N.J.S.A. 2C:44-1f(2).
II.
Defendant's primary argument on appeal contests the trial court's denial of his motion to suppress the handgun and his attendant statements to police. He argues that suppression was required because no exigent circumstances justified the immediate seizure of the loaded firearm from his car when parked by the Walt Whitman Bridge at 5:30 a.m. We disagree.
It is well established under the Fourth Amendment of the United States Constitution and under Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981).
Here, the State concededly did not have a warrant to seize the weapon. The State posits, however, that the limited seizure of the loaded weapon was justified, alternatively, under the automobile exception, see Pena-Flores, supra, 198 N.J. at 18 (describing various exceptions to the warrant requirement, including the automobile exception), or the "protective sweep" doctrine, see State v. Gamble, 218 N.J. 412, 431-32 (2014).
We are satisfied that the officers' post-arrest entry into the vehicle's interior compartment to secure the handgun that had just been identified by defendant was constitutionally permissible under the automobile exception to the warrant requirement. Pennsylvania v. Simms, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d 1031, 1036 (1996); Cooke, supra, 163 N.J. at 657. The exception authorizes police officers who have probable cause to believe that an automobile contains evidence of criminal activity to search that vehicle, based upon proven exigent circumstances arising from the vehicle's inherent mobility and upon other factors presented by the situation. Pena-Flores, supra, 198 N.J. at 20.
Defendant concedes that the police had probable cause to stop the vehicle, given the BOLO alert that he had forced his female passenger out of his car at gunpoint a short time earlier. He contends, however, that based on the confluence of factors, the State failed to establish exigent circumstances that would allow them to promptly seize the unsecured, loaded weapon from the vehicle without a warrant.
The Supreme Court has recognized that, with regard to the element of exigency, there is "no magic formula" for assessing how the facts of the search bear upon issues of officer safety and the preservation of evidence. Pena-Flores, supra, 198 N.J. at 29. Rather, "it is merely the compendium of facts that make it impracticable to secure a warrant," and "the circumstances facing the officers that tell the tale." Ibid. Among other things, the Court noted in Pena-Flores that courts reviewing such auto searches may consider such factors as the time of day; the stop location; the nature of the neighborhood; the unfolding of the events showing probable cause; the ratio of officers to suspects; the potential existence of confederates; whether passerbys who could tamper with the car or its contents had observed the arrest; whether it would be safe to leave the car unguarded; and whether the delay in obtaining a search warrant would place the police or the evidence at risk. Ibid.
We agree with the trial court that the "totality of the circumstances" here support a finding of exigency. Pena-Flores, supra, 198 N.J. at 28. First, the defendant's on-the-spot and uncoerced admission that the center console contained a handgun was sufficient to establish probable cause to believe that his car contained evidence of criminal activity. See N.J.S.A. 2C:39-6(g) (instructing that weapons being transported in a vehicle "shall be carried unloaded and contained in a closed and fastened case . . . or locked in the trunk").
Moreover, although the State does not argue it had valid consent from defendant to seize the gun, it is nevertheless revealing that defendant voluntarily told the police they could "go ahead and check" for it, suggesting he had a diminished expectation of privacy concerning the weapon.
Second, the traffic stop was conducted at approximately 5:30 a.m., in what indisputably can be a high-traffic area during rush hours. See N.J.R.E. 201 (allowing a court to take judicial notice of "specific facts and propositions of generalized knowledge"). The presence of a stationary vehicle on the side of such a multi-lane and highly-traveled interstate bridge crossing increases the likelihood of an auto accident, as well as the attendant possibility that evidence will be destroyed. See generally N.J.S.A. 39:4-92.2 (requiring motorists to move into a "lane not adjacent" to certain authorized stationary vehicles situated on the roadway). Had such an accident occurred, with a loaded gun inside one of the collided vehicles, the public safety might have been at risk. For the same reason, the mere fact that the location of the stop was close to a Delaware River Port Authority headquarters approximately eight traffic lanes away is not dispositive.
Third, our case law has endorsed the general proposition that firearms, and the special threat they can pose to public safety, justify prompt police action at times. See, e.g., State v. Wilson, 362 N.J. Super. 319, 336 (App. Div.) (permitting the warrantless search of car for handgun, even though "both suspects were in custody and the automobile under police control"), certif. denied, 178 N.J. 250 (2003).
Consequently, the presence of the unsecured and potentially-loaded weapon in the Cadillac, even though defendant was detained and the police at the location outnumbered defendant, posed enhanced safety concerns that contributed to the exigency of the circumstances. State v. Diloreto, 180 N.J. 264, 281-82 (2004); accord Wilson, supra, 362 N.J. Super. at 333 ("Our state law has long recognized the special significance of firearms and the threat they represent to public safety"). In this regard, the judge specifically found the officers' testimony describing their perceptions and actions at the scene to be credible. State v. Locurto, 157 N.J. 463, 471 (1999).
We also concur that, as the trial judge termed it, the "extraordinarily bizarre nature" of defendant's conduct at the time of the stop enhanced the public safety imperatives for the immediate seizure of the handgun. Based on the circumstances known by the officers at the time of the traffic stop, on this very same trip defendant reportedly had assaulted a woman at gunpoint forcing her to jump from a moving vehicle.
Under these circumstances considered as a whole, the police's seizure of the loaded pistol was justified as a prudent measure to assure the safety of the location and the preservation of evidence. The trial court properly denied suppression.
Having found that the search was justified under the automobile exception, we need not address the State's alternative argument for affirmance under the "protective sweep" rationale. See State v. Robinson, 441 N.J. Super. 33 (App. Div. 2015) (in which the majority and dissent reach differing conclusions about the propriety of a protective sweep of a car for a weapon).
III.
We likewise reject defendant's argument that he should have been sentenced as if he were convicted of a third-degree offense, pursuant to N.J.S.A. 2C:44-1(f)(2). As previously noted, defendant agreed to plead guilty to count five in return for the State's recommendation of five-years imprisonment with a three-year period of parole ineligibility. The trial court did not abuse its discretion in adhering to this negotiated agreement, and sentencing defendant to the statutory minimum, see N.J.S.A. 2C:43-6(a), particularly in light of the fact, as the plea form indicates, that defendant faced up to twenty-eight years if he decided to go to trial and were found guilty on all five counts of the indictment. See generally State v. Fuentes, 217 N.J. 57, 70-71 (2014) ("A sentence imposed pursuant to a plea agreement is presumed to be reasonable because a defendant voluntarily '[waived] . . . his right to a trial in return for the reduction or dismissal of certain charges, recommendations as to sentence and the like.'" (quoting State v. Davis, 175 N.J. Super. 130, 140 (App. Div. 1980)).
In a footnote within his brief, defendant also challenges Officer Fuscellaro's jurisdiction to stop his vehicle, as well as the transfer of defendant from the Pennsylvania side of the bridge to the State Police in New Jersey in the absence of a formal extradition. Given that Rule 2:6-2(a)(5) requires that legal arguments be made in "appropriate point headings," we do not address these improperly briefed arguments. State v. King, 210 N.J. 2, 22 (2012) ("Additional legal issues may not be raised by footnotes in a brief.") --------
We are unconvinced that defendant made the necessary showing to compel a downgrade. Downgrading is governed by N.J.S.A. 2C:44-1(f)(2) and State v. Megargel, 143 N.J. 484 (1996). To downgrade an offense to a lower degree, a sentencing judge must be clearly convinced that: (1) the mitigating factors substantially outweigh the aggravating ones; and (2) the interests of justice demand a downgraded sentence. Megargel, supra, 143 N.J. at 495. The second prong requires the defendant to show "compelling" reasons for the downgrade. Id. at 501. Such reasons must be in addition to, and separate from, the mitigating factors that substantially outweigh the aggravating factors, as found under the first prong. Id. at 502.
Defendant has clearly failed to establish either prong for a downgrade. Although the sentencing judge recognized defendant's lack of prior criminal history, we agree with the judge that the "extraordinarily bizarre nature" of defendant's actions, combined with the Legislature's clear policy objectives underlying the Graves Act, outweighs any mitigating factors that could be raised in support of a downgrade. The five-year custodial sentence with a three-year parole ineligibility period, both of which are mandatory minimum elements under the Graves Act, is consequently affirmed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION