Opinion
DOCKET NO. A-1814-14T3
08-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAHMIEL ROCK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Lisa Sarnoff Gochman, Legal Assistant, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-02-0273. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Lisa Sarnoff Gochman, Legal Assistant, on the brief). PER CURIAM
Defendant Jahmiel Rock appeals from his September 2, 2014 judgment of conviction. He challenges the denial of his motion to suppress, and the sentence imposed. We affirm.
I.
The following facts are taken from the testimony at the February 28, 2013 motion to suppress hearing. Detective Adam Mendes of the Asbury Park Police Department testified as follows. At about 10:00 p.m. on November 5, 2011, Officer Mendes was in an unmarked police SUV driven by Lieutenant Dave DeSane accompanied by Officer Eddy Raisin. They were on patrol in a very high-crime area known for gang activity, where Mendes had arrested persons for weapons and drug offenses in the past.
On Bangs Avenue, Mendes observed three men who were walking east. Officer Mendes then observed a Monmouth County Sheriff's Department vehicle activate its lights to conduct a traffic stop further east. When they saw the sheriff's lights, the three men abruptly turned around and began walking west away from the vehicle, their pace quickening "like they didn't want to be near that cop car." Soon thereafter, the three men began walking up a residential driveway. Lieutenant DeSane pulled the unmarked police SUV into the driveway and stopped halfway. DeSane did not activate the patrol lights or siren, and the officers did not say anything to the individuals.
The officers exited the vehicle wearing t-shirts with "Police" printed on them. Defendant walked ahead of the other two men to the top of the driveway where a fence and shrubs made it impossible to cut through to another street. None of the officers had drawn their weapons when Lieutenant DeSane observed defendant take a handgun out of his waistband and discard it near some shrubbery at the fence. DeSane shouted "he's a 41," which is a code used to advise other officers to perform an arrest. Defendant started walking back down the driveway, saying "I ain't doing nothing." Nonetheless, when Detective Mendes attempted to handcuff defendant, defendant violently swung his arm, slipped Mendes's grasp, and ran away. Mendes and Raisin gave chase, apprehended defendant, and placed him under arrest. The police recovered from near the shrubbery a revolver loaded with eight .22-caliber hollow-point bullets, and another .22-caliber bullet.
Defendant did not testify at the suppression hearing, but provided testimony from the two other men, Gerard Robinson and Demarcus Kyles. Robinson and Kyles testified that they were taking a shortcut through the yard of a home on Bangs Avenue when a black SUV pulled up, police exited with their guns drawn, and ordered all three individuals to get on the ground. Robinson and Kyles admitted that defendant ran from the police and that a handgun was recovered.
Defendant was charged with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); fourth- degree unlawful possession of "dum-dum or body armor penetrating bullets," N.J.S.A. 2C:39-3(f) (count two); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count three).
The suppression court denied defendant's motion to suppress the handgun. In doing so, the suppression court adopted the facts testified to by Detective Mendes regarding Lieutenant DeSane's observations and the resulting arrest of defendant and seizure of the handgun. The court found that the officers' initial approach to defendant was a "field inquiry," that "[d]efendant threw the handgun on the ground before police stopped or questioned him," and that "the seizure of the handgun was lawful pursuant to the abandoned property exception to the warrant requirement."
Following a jury trial, defendant was convicted of counts one and two, and on count three of a lesser-included offense, disorderly persons resisting arrest. The trial court sentenced defendant on count one to seven years of incarceration with three years and six months of parole ineligibility. The court imposed concurrent sentences of eighteen months of incarceration on count two, and six months of incarceration on count three.
Defendant appeals, arguing:
POINT I - THE ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS SHOULD BE REVERSED BECAUSE THE INITIAL POLICE CONTACT WITH DEFENDANT WAS AN UNLAWFUL INVESTIGATIVE
DETENTION, NOT A FIELD INQUIRY, AND BECAUSE DEFENDANT DID NOT ABANDON THE HANDGUN.
POINT II - THE SEVEN (7) YEAR BASE TERM WITH THREE AND ONE-HALF (3 1/2) YEARS OF PAROLE INELIGIBILITY IMPOSED ON DEFENDANT'S CONVICTION FOR UNLAWFUL POSSESSION OF A WEAPON ON COUNT ONE WAS MANIFESTLY EXCESSIVE.
II.
We must hew to our standard of review. We are "bound to uphold a trial court's factual findings in a motion to suppress provided those 'findings are "supported by sufficient credible evidence in the record."'" State v. Watts, 223 N.J. 503, 516 (2015) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). "Deference to those findings is particularly appropriate when the trial court has the '"opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy."'" Ibid. (citations omitted). "Nevertheless, we are not required to accept findings that are 'clearly mistaken' based on our independent review of the record." Ibid. "We owe no deference to a trial . . . court's interpretation of the law, and therefore our review of legal matters is de novo." State v. Hathaway, 222 N.J. 453, 467 (2015).
III.
The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution both guarantee "[t]he right of the people to be secure . . . against unreasonable searches and seizures[.]" U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7.
However, "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen[.]" State v. Shaw, 213 N.J. 398, 410 (2012) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983) (plurality opinion)); accord Illinois v. Lidster, 540 U.S. 419, 425, 124 S. Ct. 885, 890, 157 L. Ed. 2d 843, 851 (2004). Such an interaction, or "field inquiry," does not "tread[] on constitutional rights." Shaw, supra, 213 N.J. at 410.
"A field inquiry is not considered a seizure 'in the constitutional sense so long as the officer does not deny the individual the right to move.'" State v. Rodriguez, 172 N.J. 117, 126 (2002) (citation omitted). Our Supreme Court has made clear that "a seizure occurs 'only when, by means of physical force or a show of authority, [the suspect's] freedom of movement is restrained' and 'only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" State v. Tucker, 136 N.J. 158, 164 (1994) (alteration in original) (citation omitted).
Here, the suppression court properly found the officers' initial approach to defendant was a field inquiry. There was no physical force or show of authority. The officers did not "seize" defendant by merely driving into the driveway, or exiting the SUV. In Tucker, our Supreme Court stressed that police officers may "'follow after and observe persons'" who have aroused their suspicions. Id. at 167 (citation omitted). Our Court cited with approval Michigan v. Chesternut, 486 U.S. 567, 574, 108 S. Ct. 1975, 1980-81, 100 L. Ed. 2d 565, 572-73 (1988), where the United States Supreme Court held that police conduct of accelerating, following, and driving beside a suspect as he ran away at the sight of the police car did not constitute a seizure, and that when the suspect discarded contraband it could be lawfully seized as abandoned.
We have similarly held that "the police do not effectuate a stop simply by approaching a person . . . or by following a person in a police vehicle." State in Interest of C.B., 315 N.J. Super. 567, 572 (App. Div. 1998). In C.B., we found a juvenile was not seized "simply because a police van approached the intersection where he was standing" and then "followed him a short distance from the intersection and drove alongside of him" as he tried to bicycle away. Ibid. We stressed that "[t]he police did not activate their siren, direct the juvenile to stop his bicycle, or signal in any other way that he was not free to proceed." Id. at 572-73. Similarly, we have held that a defendant was not seized where the officer "made a U-turn and began to follow defendant," because the officer "never illuminated his overhead lights or ordered defendant to stop." State v. Hughes, 296 N.J. Super. 291, 296 (App. Div.), certif. denied, 149 N.J. 410 (1997).
Defendant does not contend that the police operated the car "to block respondent's course or otherwise control the direction or speed of his movement." Id. at 297 (quoting Chesternut, supra, 486 U.S. 567, 574, 108 S. Ct. 1975, 1980-81, 100 L. Ed. 2d 565, 572-73). Defendant was already walking up the driveway when the police turned into it, and his course was blocked by a fence and shrubs, not the police. There was nothing to indicate that "the police wanted to capture him and not just to speak with him." Cf. Tucker, supra, 136 N.J. at 166 (officers "set up a blockade with the police cars on the streets at the front and rear of the yard").
Here, Detective Mendes testified that the police SUV did not have its emergency lights or siren activated, and that the officers did not order the three males to stop. Defendant now contends he was seized when the police drove their vehicle into the driveway because the tires were screeching and the officers exited with their weapons drawn. However, there was no testimony at the suppression hearing about tires screeching. Moreover, the suppression court implicitly credited Mendes's testimony that the officers exited the SUV without drawing their guns. Thus, before defendant discarded the handgun there was no show of authority, and no indication that the officers had restricted defendant's movement.
At trial, defendant testified that the tires were screeching. However, this testimony was not before the suppression court and we therefore do not consider it. "[O]n appeal 'we may only consider whether the motion to suppress was properly decided based on the evidence presented at that time.'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Gibson, 318 N.J. Super. 1, 9 (1999) (holding that appellate courts only consider whether the motion to suppress was properly decided based on the testimony elicited at the suppression hearing, not at trial)).
Nor would a reasonable person have believed that he was not free to leave. Defendant, knowing that he had a handgun and that he had just discarded it in front of the officers, chose to react by raising his hands and claiming "I ain't doing nothing." However, "[n]either the officer's subjective intent, nor the subjective belief of the citizen, determines whether a seizure has occurred." Rodriguez, supra, 172 N.J. at 126 (citations omitted). Because defendant was not seized, the suppression court properly found the police interaction with defendant was nothing more than a field inquiry before defendant discarded the gun.
The suppression court also credited Mendes's testimony that DeSane observed defendant remove the gun from his waistband and throw it. As defendant discarded the gun before he was seized, the suppression court properly found that defendant had abandoned the loaded handgun. "Property is abandoned when one 'voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search.'" State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999) (citation omitted). Moreover, when property is abandoned, "a defendant will have no right to challenge the search or seizure of that property." State v. Johnson, 193 N.J. 528, 548 (2008). "Stated differently, a defendant will not have standing to object to the search or seizure of abandoned property." Id. at 549-49. Because defendant discarded the gun before being seized, he cannot object to the gun's seizure.
Defendant challenges the suppression court's reliance on Detective Mendes's testimony, because Mendes admittedly did not see defendant remove the gun from his waistband and discard it, but relied on Lieutenant DeSane's hearsay statements. DeSane could not testify at the motion to suppress because of a medical emergency. Regardless, Mendes could relate DeSane's statements on the scene. "[A]s a general matter, the State may offer evidence at a suppression hearing that would constitute inadmissible hearsay if offered at trial." State v. Bacome, 440 N.J. Super. 228, 239 (App. Div.), certif. granted on other grounds, 223 N.J. 279 (2015); see also N.J.R.E. 101(a)(2)(E). Therefore, Mendes's reliance on DeSane's statements during his testimony at the motion to suppress was permissible.
We note that, at trial, Lieutenant DeSane testified consistently with Mendes's recitation of the events leading up to defendant's arrest, including defendant's discarding of the handgun. DeSane also testified at trial that after defendant discarded the handgun and ran off with Officers Mendes and Raisin in pursuit, leaving DeSane alone with the other two suspects, DeSane drew his service weapon. Even if we were not barred from considering this trial testimony, it would not have changed the result because defendant abandoned the gun before DeSane drew his weapon. See Gibson, supra, 318 N.J. Super. at 8-9. Moreover, having seen defendant discard the handgun, DeSane had probable cause to arrest defendant.
IV.
Defendant argues that seven years in prison with three-and-one-half years of parole ineligibility was "manifestly excessive." "It is well-established that appellate courts review the trial court's 'sentencing determination under a deferential standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015) (citation omitted). We are "'bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" Ibid. (citation omitted). The sentence must be affirmed unless:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014).]
We find no violation of those requirements here. Defendant's crime of second-degree unlawful possession had "a sentencing range of between five and ten years." N.J.S.A. 2C:43-6(a)(2). Moreover, the trial court found aggravating factor three, "[t]he risk that the defendant will commit another offense," and aggravating factor nine, "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(3) and (9). The court found no mitigating factors. Defendant does not dispute the trial court's findings were based on competent credible evidence. Thus, the trial court's sentence was statutorily permitted and reasonable given the preponderance of the aggravating factors found by the trial court. See State v. Natale, 184 N.J. 458, 484 (2005).
We note defendant had been adjudicated for aggravated assault and pled guilty to theft as an adult, for which he received jail time, thereafter violated his probation, and received more jail time as a result.
Defendant's reliance on State v. Brown, 384 N.J. Super. 191, 196 (App. Div. 2006), is misplaced. The issue in Brown was solely whether a trial court could modify a defendant's sentence for a Graves Act crime after the defendant had served "in excess of the mandatory minimum parole ineligibility term." Id. at 196. --------
At sentencing, defense counsel asked the trial court to impose the minimum sentence permitted by statute: five years in prison with three years of parole ineligibility. See N.J.S.A. 2C:43-6(c) (2008). The court stated:
This defendant is like many who come in here and they have this stubborn streak. They will not listen to competent counsel. They refuse to do anything that makes any sense whatsoever, and they insist on going to trial. Then they come in after the trial and then they start with, you've got to be fair to me, you've got to do this for me, you've got to do that for me.
That's not how this system works. You pays your money and you takes your choice, that's how it works. You want to go to trial, you live with the consequences. When I went over the plea cutoff with you, you knew exactly what you were dealing with, you deal with the consequences.
Defendant argues these statements exhibited bias against him. We find these statements did not show bias or "irreparably taint[]" the sentencing process. State v. Tindell, 417 N.J. Super. 530, 572 (2011). There is no indication in the record that the trial court allowed a "sense of moral outrage and indignation to overwhelm the legal process." Id. at 571. Rather, the court merely commented on defendant's arguments in favor of imposing the minimum possible sentence, before imposing a sentence slightly below the middle of the range. Cf. id. at 569-70 (the judge protested that "'the jury's verdict enabled this defendant to literally get away with murder'" and then imposed the five consecutive maximum sentences).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION