Opinion
DOCKET NO. A-1788-10T4
12-02-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHNATHAN DANIELS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Paula T. Dow, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-10-3169.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Paula T. Dow, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following the denial of his motion to suppress evidence, defendant Johnathan Daniels pled guilty to unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b), pursuant to an agreement with the State to recommend a five year sentence with a three year period of parole ineligibility. Defendant was sentenced to five years in state prison with three years of parole ineligibility and he now appeals. Defendant presents the following issues on appeal.
Point I
THE POLICE SEIZURE OF THE DEFENDANT, A PASSENGER IN A MOTOR VEHICLE STOPPED FOR MOTOR VEHICLE INFRACTIONS, VIOLATED THE FOURTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION.
Point II
THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY IMPOSED A PERIOD OF PAROLE INELIGIBILITY.
For the reasons that follow, we affirm.
I.
The facts that follow are derived from the evidentiary hearing on defendant's motion to suppress evidence. On July 16, 2008, New Jersey State Trooper Ryan Donnelly and three other officers were on patrol in Irvington in an unmarked van when they saw a white Nissan minivan weaving through afternoon rush hour traffic "in an erratic manner." According to Donnelly, the minivan was being driven so erratically it "almost caused several accidents." The officers trailed the minivan until both arrived side by side at a traffic light.
From the front passenger seat of his van, Donnelly looked into the other vehicle and saw no key in the ignition. A back-up unit was then called and Donnelly and the other officers continued to follow the minivan. When the minivan finally stopped, the officers pulled in behind it, activated their lights, and exited their vehicle.
The four officers who approached the vehicle wore plain clothes, but also wore tactical vests identifying them as state police officers. The three occupants of the minivan, one of whom was later identified as defendant, remained in the vehicle. Defendant occupied the front passenger seat and as Donnelly approached the front passenger door, he observed the butt of a handgun protruding from defendant's right pants pocket. Donnelly yelled "gun" to alert the other officers and then removed defendant from the minivan, handcuffed him, and recovered the weapon - a .22 caliber Gerstenberger revolver -from defendant's pocket.
The trial judge found Donnelly "very credible" and added that his height lent credibility to testimony that he was able to see the interior of the minivan without difficulty. The trial judge also noted that defendant was not wearing "bulky" clothes that could have concealed the weapon from plain view.
Our standard of review on a motion to suppress is limited. 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. Elders, 192 N.J. 224, 243 (2007). It is not our function to second-guess the trial court's credibility findings resulting from the suppression hearing. See State v. Locurto, 157 N.J. 463, 469-71 (1999).
The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. A seizure occurs if, "'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" State v. Sloane, 193 N.J. 423, 429 (2008)(quoting State v. Stovall, 170 N.J. 346, 355 (2002)). An automobile may be stopped if police have probable cause to believe that the driver has committed a traffic violation. Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89, 95 (1996); State v. Dickey, 152 N.J. 468, 475 (1998).
Once an automobile has been stopped, temporary police detention is justified if the stop is for a reasonable period of time. Whren, supra, 517 U.S. at 810, 116 S. Ct. at 1772, 135 L. Ed. 2d at 95-96; Dickey, supra, 152 N.J. at 475. The police do not have to show an independent basis for detaining vehicle passengers in such circumstances unless the detention extends beyond the reasonable period governing the stop. Sloane, supra, 193 N.J. at 432; State v. Hickman, 335 N.J.Super. 623, 634 (App. Div. 2000).
Accepting, as we must, that Donnelly's testimony was credible, Locurto, supra, 157 N.J. at 471, there was sufficient evidence of a motor vehicle violation to justify stopping the minivan. The minivan was being driven "very erratically" through rush hour traffic and created a hazard to other vehicles. Indeed, the operation of the minivan was so erratic that it almost resulted in several accidents. Hence, the motor vehicle stop was constitutionally permissible.
Once the vehicle was lawfully stopped, Donnelly's observation of the weapon was justified by the "plain view" exception to the warrant requirement. Under this exception, a warrant is unnecessary where the officer is (1) lawfully present in the viewing area, (2) the officer inadvertently discovers the evidence in plain view, and (3) it is "immediately apparent" to the police officer that the "items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002).
Here, upon approaching the minivan, Donnelly saw the handgun protruding from defendant's pocket in plain view. These circumstances justified seizing the weapon for the safety of the officers and others. Our State has long recognized the special significance of firearms and the threat they pose to public safety. State in the Interest of H.B., 75 N.J. 243, 245-47 (1977); State v. Wilson, 362 N.J.Super. 319, 333 (App. Div.), cert. denied, 178 N.J. 250 (2003).
We affirm the denial of defendant's motion to suppress the weapon.
II.
After the motion to suppress evidence was denied, defendant pled guilty to unlawful possession of a handgun under N.J.S.A. 2C:39-5(b). At his plea hearing, defendant acknowledged that he was fully informed of the details of the plea agreement he reached with the State and understood the State would recommend five years incarceration with a three year parole ineligibility period. He further indicated that he understood the parole ineligibility term. Defendant now contends that the parole ineligibility period is excessive.
We are satisfied the sentence imposed was proper. The sentence imposed in accordance with a plea bargain "should be given great respect, since a 'presumption of reasonableness . . . attaches to criminal sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J.Super. 61, 71, (App. Div.)(quoting State v. Sainz, 107 N.J. 283, 294 (1987)), cert. denied, 145 N.J. 373 (1996). See also In re Commitment of P.C., 349 N.J.Super. 569, 578 (App. Div. 2002)("[C]ourts generally defer to the reasonableness of negotiated criminal dispositions[.]"). The judge properly followed and applied the sentencing guidelines and criteria; the sentence imposed is not manifestly excessive nor does it shock our judicial conscience. State v. Ghertler, 114 N.J. 383, 387-89 (1989); State v. Roth, 95, N.J. 334, 362-64 (1984).
In addition, a period of parole ineligibility was mandatory under statute. Unlawful possession of a handgun in violation of N.J.S.A. 2C:39-5(b), a second degree crime, is one of the enumerated offenses that triggers mandatory sentencing under the Graves Act.
A person who has been convicted under . . . subsection a., b. or c. of [N.J.S.A.]The sentence imposed properly incorporates this mandatory parole ineligibility period.
2C:39-5 . . . shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater . . . during which the defendant shall be ineligible for parole.
[N.J.S.A. 2C:43-6(c) (emphasis added).]
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
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CLERK OF THE APPELLATE DIVISION