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State v. Williams

October 19, 1998

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BARRY WILLIAMS, DEFENDANT-APPELLANT.



Before Judges Baime and Kimmelman.

The opinion of the court was delivered by: The opinion of the court was delivered by Baime, P.j.a.d.

[9]    Submitted October 1, 1998

On appeal from Superior Court of New Jersey, Law Division, Hudson County.

A jury found defendant guilty of first degree robbery (N.J.S.A. 2C:15-1), second degree conspiracy to commit armed robbery (N.J.S.A. 2C:5-2), second degree possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a), and third degree possession of a handgun without a permit (N.J.S.A. 2C:39-5b). Finding that defendant had been convicted previously of a Graves Act offense, the trial court imposed a mandatory extended term of life imprisonment with a twenty-five year parole disqualifier on the conviction for first degree robbery. The trial court sentenced defendant to a term of ten years with a five year parole disqualifier on the conviction for second degree conspiracy, and to a term of five years with a three year parole disqualifier on the conviction for third degree possession of a handgun without a permit. All sentences are to run concurrently. The conviction for second degree possession of a firearm for an unlawful purpose was merged.

On appeal, defendant argues: (1) the trial court erred by denying his motion to suppress evidence, (2) plain error was committed by a police officer's allusion to defendant's "criminal jacket," (3) the prosecutor's comments in summation prejudiced defendant's right to a fair trial, and (4) the extended sentence was grossly disparate to the lenient term imposed on the co-defendant. We find no merit in these contentions. However, we vacate defendant's conviction for second degree conspiracy and remand for resentencing on the conviction for third degree possession of a handgun without a permit.

I.

At the outset, we note that the evidence against defendant was overwhelming. Among other things, defendant's accomplice, Regina Wright, entered into a plea agreement and testified as a State's witness, the gun used in committing the robbery was found in defendant's possession upon his arrest, and one of the two victims provided strong identification evidence. The trial record reeks of defendant's guilt.

According to the State's evidence, on January 22, 1995, defendant and Wright agreed to commit a robbery. The targeted victims were an elderly couple, John and Ann Hightower. After luring Mr. Hightower to the front door of his apartment, defendant produced a handgun and forced his way into the vestibule. At various times, defendant placed the barrel of the gun against Mr. Hightower's back and Mrs. Hightower's face, repeatedly demanding their money. Although Wright appeared somewhat sympathetic to the plight of the victims, she alternatively assisted defendant in ransacking the apartment and standing guard at the doorway. After relieving the Hightowers of their money and jewelry, defendant ripped the telephone cord out of the wall, and, along with Wright, fled from the scene.

The police were immediately summoned. As part of their investigation, members of the Bureau of Identification "lifted" twelve fingerprints from the crime scene. The fingerprints were then submitted to the State Police for analysis.

Several weeks later, members of the Jersey City Police Department arrested defendant and Wright in the course of an unrelated investigation. More specifically, the police received a telephone call from Scott Holloman in which he reported that a male and female were in a car in front of his house and that they were armed with a handgun. Upon responding to the scene, Police Officer Juan Torres immediately recognized Holloman as a lieutenant in the army National Guard. The two men had actually served together. Holloman told the officer that Wright was a relative and might have removed a nine millimeter handgun from his house two weeks earlier. Holloman suspected that Wright and defendant had guns in her automobile and noted that the two individuals had just left. Holloman gave the police the license plate number and make of the car as well as a description of the occupants. Minutes later, the police stopped the suspect car, which was occupied by Wright and defendant, several blocks from Holloman's house. The officers apprised both occupants of their reasons for stopping the vehicle. At that point, defendant, the front seat passenger, volunteered the fact that there was a BB gun in the glove compartment. The gun, which was operable and designed to resemble a .45 caliber semiautomatic handgun, was confiscated by the police. Both defendant and Wright were placed under arrest.

On the day following the arrest, the State Police notified the Jersey City Police Department that the fingerprints lifted from the Hightower crime scene matched those of Regina Wright. This information was relayed to Detective John Mondry who retrieved Wright's arrest file. Because defendant had been arrested with Wright, the detective concluded that both individuals might have participated in the robbery of the Hightowers. A photographic array was then shown to both Hightowers. Although Mrs. Hightower was unable to make a positive identification, Mr. Hightower selected defendant's picture. Mr. Hightower also later identified the BB gun that had been confiscated from Wright's automobile as the weapon that had been brandished by defendant during the robbery. Wright gave a written statement implicating defendant and subsequently entered a plea agreement with the prosecution. She was permitted to plead guilty to second degree conspiracy and was sentenced to a five year probationary term. As we noted earlier, Wright testified against defendant as a prosecution witness.

II.

We first consider defendant's attack upon the trial court's denial of his motion to suppress evidence. Defendant contends that the police violated his Fourth Amendment rights by stopping Wright's automobile. We disagree.

We begin our analysis with the well-settled principle that a police officer may effect an investigative stop on less than probable cause. State v. Ramos, 282 N.J. Super. 19, 21 (App. Div. 1995). Investigatory detentions have been sustained as constitutional so long as the stop "is supported by a reasonable suspicion that criminal activity is afoot." State v. Branch, 301 N.J. Super. 307, 318 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998). The essence of this standard is that the totality of the circumstances must be taken into account. Based upon "the whole picture," United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981), the detaining officers must harbor a particularized suspicion grounded in "specific and articulable facts," State v. Ramos, 282 N.J. Super. at 21, that a suspect was, or is, engaged in criminal activity. See United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 681, 83 L.Ed.2d 604, 612 (1985); Delaware ...


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