On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels, Petrella and Baime. The opinion of the Court was delivered by Michels, P.J.A.D.
[198 NJSuper Page 345] Tried to a jury defendant Neville Anderson was convicted with co-defendants Bernard Junior Reid and Samuel Booker*fn1 of two counts of armed robbery in violation of N.J.S.A. 2C:15-1(a)(2) and one count of possession of a handgun without having first obtained the requisite permit to carry the same in violation of N.J.S.A. 2C:39-5(b). Defendant's motion for a new trial was denied and he was committed to the custody of the Commissioner of the Department of Corrections for concurrent terms aggregating 15 years with a parole ineligibility term of 7 years
and assessed penalties totaling $75 payable to the Violent Crimes Compensation Board. He appeals.
Defendant seeks a reversal of his conviction and the entry of a judgment of acquittal or alternatively, the reversal of his convictions and a remand for a new trial or a modification of his sentences on the following grounds set forth in his brief.
POINT I THE STOP AND ARREST OF THE DEFENDANT AND THE SUBSEQUENT SEARCH AND SEIZURE OF CERTAIN EVIDENCE INTRODUCED AT TRIAL BELOW VIOLATED THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT II THE IN-COURT IDENTIFICATION AND THE TESTIMONY RELATING TO THE PRETRIAL IDENTIFICATIONS SHOULD HAVE BEEN EXCLUDED.
POINT III THE COURT ERRED IN FAILING TO GRANT AN APPLICATION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND AT THE TERMINATION OF THE ENTIRE TRIAL.
POINT IV THE TRIAL COURT ERRED BY REFUSING TO PERMIT THE TESTIMONY OF THE VICTIMS TO BE READ AGAIN TO THE JURY, AFTER A PROPER JURY REQUEST.
POINT V THE TRIAL COURT FAILED TO MERGE THE APPROPRIATE LESSER INCLUDED OFFENSES AT TIME OF SENTENCING, AND THUS [SIC] WAS PLAIN ERROR.
POINT VI THE DEFENDANT WAS DENIED A RIGHT TO A FAIR TRIAL IN VIOLATION OF THE SIXTH AMENDMENT BY THE TRIAL COURT'S FAILURE TO QUESTION PROSPECTIVE JURORS ON THE ISSUE OF RACIAL BIAS, AND THE COMPOSITION OF THE JUROR ARRAY THAT DID NOT INCLUDE BLACKS.
POINT VIII THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND OVERLY PUNITIVE.
We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that they are clearly without merit. R. 2:11-3(e)(2).
However, some further comment is necessary with respect to defendant's claim in Point I, infra, that the trial court committed reversible error in denying his motion to suppress evidence seized pursuant to a warrantless search. Defendant contends essentially that there was no legal basis to stop his vehicle and therefore his subsequent arrest, the search of his automobile,
and the seizure of the evidence introduced at trial violated his constitutional rights.
According to the State's proofs at the suppression hearing, at approximately 1:30 a.m. on May 30, 1981, Officer Mordaga of the Hackensack Police Department, while on routine patrol, received a report that three black males armed with handguns had committed an armed robbery at 263 Anderson Street in Hackensack, New Jersey. Mordaga turned onto Anderson Street and started to proceed in a westerly direction. As he reached the intersection of Anderson Street and Main Street he observed a New York registered 1974 Ford occupied by two black males traveling in the opposite direction. At that point Mordaga was several blocks away from the robbery scene. Mordaga testified that except for another police radio car, the Ford was the only other car on the road. He also testified that he could not see in the Ford's rear seat to determine whether it had a third occupant because its rear windows were tinted.
Mordaga, believing that the car's occupants fit the description of the robbery suspects, turned around and attempted to pull the Ford over. Mordaga put on his overhead lights and sounded his siren. The defendant's car slowed but did not stop. It continued at a slow speed for approximately two blocks and then halted on the Anderson Street bridge. According to Mordaga, he stopped the vehicle at approximately 1:40 a.m. -- only minutes after he received the call that an armed robbery had occurred on Anderson Street. Mordaga approached the vehicle and saw the third suspect lying on the rear seat. Mordaga "felt possibly that [this suspect] had a gun" and thereupon retreated to his patrol car and called for a "backup." After the backup policemen arrived they ordered the suspects out of the car. As the defendants exited the car one of the policemen, Sergeant Elefante, observed the butt of an automatic handgun sticking out of the back seat. That handgun was seized and the suspects placed under arrest.
While defendant's car was still on the Anderson Street bridge, the victims, in the company of members of the detective unit, arrived at the scene and identified defendants as their assailants. The victims also observed several items of jewelry on the front floor of the car. Additionally, Officer Rothenburger discovered another loaded .45 caliber handgun and a man's watch in the grass while searching the area near the passenger side window of the defendant's car.
The Fourth Amendment protects the "right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." U.S. Const. amend IV; N.J. Const. art. 1, para. 7. The Fourth Amendment does not, however, proscribe all searches and seizures. Rather, it only proscribes those that are judicially deemed unreasonable. State v. Bruzzese, 94 N.J. 210, 216-217 (1983); State v. Campbell, 53 N.J. 230, 233 (1969). Indeed, as Justice Schreiber pointed out in State v. Bruzzese, "the touchstone of the Fourth Amendment is reasonableness." 94 N.J. at 217. We recognize, of course, that the burden is on the State to prove the overall reasonableness and validity of a warrantless search. See State v. Bruzzese, supra, 94 N.J. at 218; State v. Valencia, 93 N.J. 126, 133 (1963). The resolution of such Fourth Amendment issues is peculiarly dependent upon the facts involved. Commonly, such constitutional issues involve no more than a seasoned "value judgment upon a factual complex rather than an evident application of a precise rule of law." State v. Funicello, 60 N.J. 60, 72 (1972) (Chief Justice Weintraub, concurring). This is especially true with regard to investigatory detentions. Our Supreme Court has held that under a narrowly defined and controlled set of circumstances, such detentions can be constitutionally permissible, although based on less than probable cause. In State v. Hall, 93 N.J. 552 (1983), the Court pointed out in a somewhat related context that:
Our reading of Davis [ v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 convinces us that for certain detentions -- those that do not entail significant intrusions upon individual privacy ...