Opinion
DOCKET NO. A-3714-10T4
04-02-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HASSAN KAMAL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 10-03-882 and 10-06-1581.
Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Hassan Kamal appeals two judgments of conviction that the trial court entered on February 7, 2011. Pursuant to a plea agreement covering two separate indictments, the judgments of conviction declared defendant guilty of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and third-degree theft by failure to make lawful disposition of property, N.J.S.A. 2C:20-9. The court sentenced him to a five-year custodial term with a three-year period of parole ineligibility on the weapons offense, with a concurrent three-year term on the theft offense.
Defendant also appeals the trial court's pretrial ruling of November 5, 2010 denying his motion to suppress evidence police had seized from him and a co-defendant. Defendant further appeals the court's subsequent denial of his motion at sentencing to withdraw his guilty plea. For the reasons that follow, we affirm.
I.
The record presents the following pertinent facts and procedural history. On January 2, 2010, defendant and Archie Walden were arrested by New Jersey State Troopers in Camden after the State Police had received a tip from a confidential informant. The informant reported that two men, one of them armed with a gun, were then standing on the sidewalk on Chestnut Street in Camden, near a brown truck with a Virginia license plate. The caller described the men as two black males, one wearing a red top or jacket and the other being dressed all in black. According to the State, the caller had provided reliable information to the police in the past.
Walden was a co-defendant on Indictment No. 10-03-882. He is not part of this appeal.
Four troopers drove to the location and observed defendant and Walden standing by a brown SUV. Both of them are African-American males. Their clothing matched the informant's description. The police saw Walden, after being told "State Police, don't move," start to reach inside his jacket. One officer frisked Walden and found him carrying a handgun. Meanwhile, another gun, a .32 caliber handgun, was thrown to the ground, apparently by defendant. According to the police, someone yelled out "gun." Defendant was then frisked and several rounds of ammunition were found on his person.
Two indictments were issued against defendant. One indictment (No. 10-06-1581) charged him with committing theft by deception, N.J.S.A. 2C:20-4, and uttering a forged instrument, N.J.S.A. 2C:21-1a(3) on November 24, 2009. The other indictment (No. 10-03-882), which also named Walden, charged defendant with committing on January 2, 2010 second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and a second-degree "certain persons" offense, N.J.S.A. 2C:39-7(b).
After defendant's motion to suppress the seized gun and ammunition was denied, plea negotiations ensued. The State and defendant agreed to a plea of second-degree unlawful possession of a weapon and third-degree theft. The agreement called for a five-year sentence on the weapons offense with a three-year parole disqualifier, and a concurrent three-year flat sentence on the theft offense.
The plea agreement included a notation that defendant would be interviewed for consideration of admission into an electronic monitoring ("wristlet") program that apparently would enable him to visit his sick mother on weekends and holidays. The trial judge discussed this on the record at the plea hearing, and informed defendant that the court had no control over whether defendant would be admitted into the program. As it turned out, defendant, who already had multiple prior offenses, was thereafter rejected from the program.
Defendant moved on the date of his sentencing, February 7, 2011, to withdraw his plea because he had been rejected from the wristlet program. Applying the plea withdrawal factors prescribed by State v. Slater, 198 N.J. 145, 157-62 (2009), the trial judge denied the motion. The judge noted, among other things, that defendant had not presented a colorable claim of innocence and that it had been made clear to defendant at the time his plea was entered that there was no guarantee that he would be admitted into the wristlet program. The judge then imposed a five-year sentence with the three-year parole disqualifier, consistent with the plea agreement.
II.
On appeal, defendant presents the following arguments:
POINT IWe address these contentions in turn.
THE POLICE, WITH ONLY A TIP AND CORROBORATION OF NO MORE THAN INNOCENT, EASILY OBTAINED FACTS, WERE NOT JUSTIFIED IN STOPPING, SEIZING, ARRESTING OR SEARCHING DEFENDANT AND THEREFORE THE GUNS AND BULLETS SHOULD HAVE BEEN SUPPRESSED
POINT II
THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO WITHDRAW THE GUILTY PLEA AND THEREFORE THE MATTER MUST BE REMANDED
POINT III
THE NUMEROUS ERRORS AND DELETIONS FROM THE [PRESENTENCE REPORT] REQUIRED PRODUCTION OF A REVISED REPORT TO ENSURE PROPER APPLICATION OF THOSE CHANGES BY THE DEPARTMENT OF CORRECTIONS IN COMPUTING THE REAL TIME TO BE SERVED BY DEFENDANT AND HIS EVENTUAL PAROLE ELIGIBILITY
A.
Defendant first contends that the trial court should have granted his suppression motion because the troopers stopped and frisked Walden and then him without a warrant or a constitutional justification for doing so in the absence of a warrant. In particular, defendant contests the troopers' dependence upon the informant's tip, arguing that the State failed to establish the informant's reliability. Defendant also contests the troopers' seizure of the weapon that had been thrown to the ground.
The applicable exception to the Fourth Amendment warrant requirement in this case arises under the investigatory "stop and frisk" doctrine, established by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The Terry exception permits a police officer to detain an individual for a brief period, and to pat him down for the officer's safety, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriquez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986); see also State v. Shaw, ___ N.J. ___, ___ (2012) (slip op. at 22-24) (applying the Terry standards).
In the present case, the investigatory stop was prompted by the tip from a confidential informant. The description supplied by the informant, which matched the circumstances the troopers subsequently observed on the street corner, supported the troopers' determination that there was, at a minimum, "reasonable suspicion" to perform a Terry stop and frisk of defendant and his companion. In State v. Smith, 155 N.J. 83, 92 cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998), our Supreme Court considered the ability of police to rely upon an informant's tip in the analogous context of evaluating whether the police had probable cause to arrest a suspect. Applying principles expressed by the United States Supreme Court, the Court in Smith noted that "[t]he sufficiency of the information related by an informant as a basis for establishing probable cause is determined by a standard that calls for consideration and analysis of all relevant circumstances." Ibid.; see also Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983) (adopting a "totality of the circumstances" approach to evaluating reliance upon an informant's tip).
Two relevant, if not essential, factors to be considered in the totality assessment are: (1) the informant's veracity; and (2) the informant's basis of knowledge. Smith, supra, 155 N.J. at 93; see also Gates, supra, 462 U.S. at 230, 103 S. Ct. at 2328, 76 L. Ed. 2d at 543. Veracity can be established by the informant's past reliability. Smith, supra, 155 N.J. at 93. Moreover, corroboration of information provided in a tip can be a strong indicia of the reliability of the informant's tip. Id. at 96; see also State v. Zapata, 297 N.J. Super. 160, 173-74 (App. Div. 1997) (noting the particular significance of corroboration where the tip comes from an anonymous source), certif. denied, 156 N.J. 405 (1998).
As to the second factor, the informant's basis of knowledge may be inferred in various ways. For example, the basis may be indicated "if the tip itself relates expressly or clearly how the informant knows of the criminal activity." Smith, supra, 155 N.J. at 94. Alternatively, even in the absence of such an express disclosure, "the nature and details revealed in the tip may imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source." Ibid.; see also State v. Novembrino, 105 N.J. 95, 113 (1987) (recognizing the value of "self-verifying details"). The basis also can be established "by predicting hard to know future events." Smith, supra, at 95 (emphasis added). "The prediction of future events can imply that the informant derived that information directly as a witness or as one privy to a reliable witness or source." Ibid.
The sole witness who testified for the State at the suppression hearing in this case was Trooper Arthur Barilotti. Barilotti detailed the information provided in the informant's tip and the subsequent action of the troopers in going to the street location, encountering defendant and Walden, and frisking them after Walden reached into his jacket for an apparent weapon and the other gun had been thrown to the ground. Defendant presented testimony from Walden, who claimed that he never received any directions by the troopers before they apprehended him and that he possessed no weapons at the scene. Walden also denied ever giving defendant a gun.
After considering this testimony, the trial judge, Hon. Samuel D. Natal, J.S.C., concluded that the stop and frisk in this case, and the ensuing arrests and seizure of the gun found on the ground, were constitutional. As part of his analysis, Judge Natal made several findings. Citing Davis, supra, the judge concluded that the "trooper proceeded to the area in which he received a tip about the possible possession of a handgun . . . [and] the trooper could not allow a credible tip of a dangerous weapon to go uninvestigated." The judge described the informant as "known" and observed that he "proved to be reliable." The judge noted that the informant had provided accurate information regarding location, clothing, and a description of the vehicle, i.e., the informant identified "a brown truck bearing a Virginia registration." The judge concluded that these descriptions were corroborated by Barilotti and, "[b]ased on his training and experience . . . the officer believed that one of the men was reaching for a weapon after he told them to stop, announcing he was a police officer[.]"
As to the frisk conducted on Walden, the judge determined that, "based upon the totality of the circumstances[,] the officer possessed a reasonable suspicion to conduct an investigative stop because he was basing it on corroborated information obtained from a credible source." Elaborating on this conclusion, the judge noted that "[u]pon initiating the stop[,] the officers possessed a reasonable suspicion that [Walden] was armed and dangerous as he was reaching into [his] coat after the police announced their presence and told him to freeze."
Given these circumstances, the judge found that the criteria supporting a constitutional Terry stop and frisk were met. The judge observed in this regard that Trooper Barilotti had been "investigating the suspect for possession of a deadly weapon and, therefore, justification for a Terry frisk existed contemporaneously with the initial investigative stop because this would logically raise the suspicion that the defendant was armed and possibly dangerous." The Terry frisk led to a gun, which gave probable cause to conduct an arrest.
The judge next determined that the warrantless search of defendant, following the frisk, was justified under the search-incident-to-arrest exception recognized in Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1989); see also State v. Moore, 181 N.J. 40, 45 (2004). The judge analyzed this aspect of the sequence of events as follows:
In this matter[,] once the [co]defendant Walden was handcuffed and Terry frisked resulting in the discovery of the handgun and the [] defendant was placed under arrest after a gun that had been discarded was picked up from the ground[.]
Under State [v.] Sims[, 75 N.J. 337 (1978),] probable cause to arrest existed when facts known to the arresting officers were sufficient to warrant a person of reasonable caution in the belief that an offense has been or was being committed. Here[,] the facts known to the officers gives rise to a reasonable belief that crimes were being committed.
First, the trooper received credible information from a reliable informant that the defendants were in possession of a . . .
firearm. This information was then corroborated once the trooper arrived at the scene. The trooper conducted a lawful investigative stop of the defendant which immediately ripened into probable cause and arrest.
Probable cause developed in the case when the trooper observed Mr. Walden begin to reach inside his shirt in which the officer believed [he] was reaching for a weapon as he had information from the reliable informant that this is the defendant who possessed the gun.
Lastly, Judge Natal upheld the seizure of the gun based upon a finding that any privacy interest in the discarded gun had been abandoned. See State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981), aff'd o.b., 89 N.J. 378 (1982). As the judge observed:
The defendant was given a lawful order by the police and subsequently proceeded to discard a firearm onto the street. . . . The defendant discarded the firearm on the public sidewalk from his person demonstrating an intent to abandon.
Based upon these various determinations, the judge denied the motion to suppress, concluding that "the seizure of the weapon, the firearm, the subsequent arrest of [defendant] and the search of his person were all proper searches."
Defendant contends that the judge erred in all of these determinations and misapplied the governing principles of constitutional law. We disagree. The troopers properly took action at the scene based upon the corroborated tip from a reliable informant. They had reasonable suspicion to stop and frisk the two individuals who matched the description. Once Walden reached into his jacket, and a weapon was thrown to the ground, observations that the judge credited, the situation escalated and thereby justified the arrest and warrantless searches that ensued. The gun on the ground was reasonably found to have been abandoned.
In sum, defendant has not shown any reason to disturb the judge's cogent findings of law and fact. We therefore sustain the denial of the suppression motion, substantially for the reasons expressed in Judge Natal's detailed oral opinion.
B.
Defendant next argues that the trial court should have granted his motion to withdraw his guilty plea on the day of sentencing. This issue is governed by the four factors expressed by the Supreme Court in Slater, supra, 198 N.J. at 157-58:
(1) [w]hether the defendant has asserted a colorable claim of innocence;Courts must consider and balance all of the factors in deciding the motion for withdrawal of a guilty plea. Id. at 162. As no factor is mandatory, the fact that one may be missing "does not automatically disqualify or dictate relief." Ibid.
(2) [t]he nature and strength of defendant's reasons for withdrawal;
(3) [t]he existence of a plea bargain; and
(4) [w]hether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.
With regard to the first Slater factor, "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea." Id. at 158. The defendant must present specific and credible facts. Ibid. The court should "simply consider whether a defendant's assertion of innocence is more than a blanket, bald statement and rests on particular, plausible facts." Id. at 159.
Here, Judge Natal rightly concluded that defendant at no point presented the court with a colorable claim of innocence. Defendant did not present the court with a certification or statement in support of his withdrawal motion proclaiming his innocence. As Judge Natal noted, "[c]ounsel for the defendant only asserts that [defendant] was uninterested in accepting a guilty plea prior to the suggestion of electronic monitoring program." Although defendant later asserted his innocence in his allocution at sentencing, that belated effort does not satisfy the first prong of Slater.
As to the second Slater factor, the court must focus on the basic unfairness of enforcing a guilty plea by asking whether the defendant has presented just reasons for permitting withdrawal. Id. at 159. For example, this factor can be satisfied if "the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense was forgotten or missed at the time of plea." Id. at 160 (internal quotation marks omitted).
This second factor does not support defendant's position, either. At the time his plea was taken, defendant specifically acknowledged on the record that he understood the terms of his plea, and that he was knowingly and voluntarily accepting its terms. With respect to the question of defendant's potential admission to the wristlet program, the plea form only states that defendant was "to be interviewed for EM [Electronic Monitoring] release pending sentence. (State objects)." The plea form contained no guarantee that defendant was eligible for the wristlet program and would be admitted into it. In fact, at the time the plea was entered, Judge Natal took pains to confirm that defendant understood that he could not assume that he would be admitted into the program, and that the court had no control over that decision:
THE COURT: Is there anything at all you've not understood, sir?
MR. KAMAL: No. I just want to make sure that I'm understanding the agreement with the GPS thing [the wristlet program] though. I would like to make sure that we got that --
THE COURT: Sir, it's my understanding they're going to interview you for that program, sir. If -- if they find you're acceptable, sir they'll send notice to me. They'll send notice to the Prosecutor. Assuming that everything is in order, sir, you will [be] released pending sentencing on January 14th, sir. Do you understand that, sir?
MR. KAMAL: Yes, sir.
THE COURT: Okay.
MR. KAMAL: Your Honor, one more question.
THE COURT: What, sir?
MR. KAMAL: So what -- what am I going to do, just sit here until whenever that process occurs?
THE COURT: Sir, it take -- they have to interview you, sir. They have to get -- they have to check out the addresses you're giving them, sir. All that has to be done, sir.
MR. KAMAL: My residence is where I'm going to be, so what --
THE COURT: I understand that, sir. I don't control that. The Sheriff's Department controls the investigation, sir.
MR. KAMAL: All right.
THE COURT: Sir, is there anything at all you've not understood?
MR. KAMAL: No, sir. No, no.
[Emphasis added.]
On appeal, defendant essentially claims that the court unfairly led him to believe that he would, in fact, be admitted into the wristlet program. The transcript belies that assertion.
Defendant further asserts that his plea counsel incompetently failed to advise him that he would be ineligible for the wristlet program because of his prior record. In support of that claim, defendant relies upon a certification from his plea counsel stating that she was "not fully familiar with the [wristlet] program and did not know to advise [defendant] that he would be rejected from the program based upon his prior convictions." This certification, which we assume to be true, is insufficient to compel reversal of the trial judge's exercise of discretion and judgment in applying the totality of the Slater factors. Indeed, if defendant had been unclear about his prospects for admission into the program at the time of the plea colloquy, the judge's statements to him nevertheless made very clear that he could not count upon admission to the program.
Moreover, the third and fourth Slater factors do not compel reversal. As to factor three — the existence of a plea bargain — the plea was pursuant to a written agreement which, as we have noted, merely stated that defendant would be interviewed for the wristlet program, and that the State was opposing his admission into the program. It is also significant that the plea agreement, spanning two separate indictments, limited defendant's exposure on other charges that were dismissed by agreement. The fourth factor — prejudice to the State due to the passage of time — also does not aid defendant, who wishes to reinstate indictments predicated on facts dating back to 2009 and 2010.
For these reasons, we discern no misapplication of discretion in the trial judge's denial of defendant's motion to withdraw his plea. State v. Bellamy, 178 N.J. 127, 135 (2003) (noting the trial court's "broad discretion" to grant or deny a motion to withdraw a plea); see also Slater, supra, 198 N.J. at 156.
C.
Defendant's final argument is that his sentence is excessive, that the trial court implicitly relied upon errors in the presentence report in his sentencing analysis, and that he was deprived of certain jail credits. We disagree.
The sentence was fully consistent with the plea agreement and within the applicable sentencing guidelines. The judge fairly granted defendant the benefit of a concurrent sentence despite his prior criminal record with multiple convictions. The imposed sentence properly incorporates the mandatory parole ineligibility term prescribed for weapons offenses by the Graves Act, N.J.S.A. 2C:43-6(c). The errors in defendant's reported criminal history were duly corrected by defense counsel on the record, and the judge also afforded defendant the opportunity to express his own corrections. Any oral misstatements in the judge's subsequent recitation of defendant's criminal history were inconsequential, considering the reasonableness of the sentence as a whole and extent of the undisputed portions of his prior record. We detect no abuse of discretion in the sentence that was imposed, which does not shock our conscience. State v. Bieniek, 200 N.J. 601, 612 (2010); State v. Roth, 95 N.J. 334, 365-66 (1984).
Lastly, we reject defendant's claim of a miscalculation of jail credits, which were properly tabulated as 401 days under Indictment No. 10-03-882 and 318 days under Indictment No. 10-06-1581.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION