On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 99-4845.
Before Judges Keefe, Steinberg and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2001
Pursuant to leave granted, the State appeals the trial court's order suppressing cocaine seized from defendant's pocket after his arrest for the petty disorderly persons offense of defiant trespass, N.J.S.A. 2C:18-3b. We affirm.
On November 2, 1999, at 6:40 p.m. a rainy evening, Detectives Chapparo and Mooney of the Long Branch police department were driving on Liberty Street in the area of the Grant Court and Garfield Court Federal Housing complexes.*fn1 They were in plainclothes, in an unmarked vehicle, and were targeting the two areas for trespassing and narcotics violations. Upon leaving their car and entering the Grant Court complex the officers saw an individual, later identified as defendant, sitting on the bar of a bicycle, close to an area in the complex known for narcotics activity. As Chapparo approached the man, he recognized him as defendant, who was known to him. Upon seeing the officer, defendant rode off on his bicycle, heading out of the complex. Chapparo gave chase and, after fifteen to twenty feet, "grabbed [defendant] on the bike."
Upon seizing defendant, Chapparo asked why he departed and what his reason was for being in Grant Court, to which defendant apparently gave "no reason, no answer." Defendant said that he was "doing nothing." Without further inquiry, defendant was placed under arrest for trespassing. A search at the scene revealed two bags of cocaine in defendant's front left pocket.
Chapparo's prior contacts with defendant at the complexes occurred on two occasions. The first was "a few years back" when he stopped defendant in Garfield Court. Defendant said he was an employee and, upon producing an identification card, was released. However, Chapparo later spoke with the Director of the complex who said that defendant had been but was no longer an employee. The second encounter came when defendant had been visiting a friend in Grant Court. Chapparo stopped defendant and told him what he had previously learned about his employment status. Defendant insisted that he did work for Randy Phillips, the Director or Assistant Director of the complex, and again showed an identification card. He was again released. Subsequently, Phillips told Chapparo that defendant did not work for the complex. Finally, Chapparo had apparently arrested defendant on unspecified charges several months before the night in question, at which time he was employed by Monmouth University.
The general procedure followed by the officers was to inquire of persons such as defendant as to their reason for being in the complexes. If the individual indicated that they were visiting a resident, the officers would attempt to confirm the information by taking the visitor back to the apartment in question or having headquarters call that resident to confirm their familiarity with the individual stopped. For that purpose, the officers had a list of all tenants in complexes, provided to them by management, with phone numbers in many cases. If the suspect provided the name of someone on the list, they were usually released. If the name was not provided they would go with the suspect to the apartment. If the resident did not know the individual, or the suspect had otherwise lied, they would be arrested for trespassing. At the end of each building were signs warning against trespassing.
Defendant testified that on November 2, 1999, he had gone to Grant Court, as usual, to visit his son Billy, who lived there with his mother at 23 Grant Court. His son's grandmother also lived in the complex, in the building directly across from where defendant was seated on his bicycle. That day defendant found Billy outside, playing in the walkway between his mother's and his grandmother's houses. Defendant had been in the complex ten to fifteen minutes when the police arrived. By that time, Billy had gone inside and it had begun to rain. Defendant testified that there were two other people present, a girl to whom he had been talking, and a man, whom the police approached. When he saw the officers talking to the man, defendant started to leave because, in his words, "Chapparo always liked to hassle me sometimes. Sometimes he kids. Sometimes he doesn't. But, you know, I just doesn't [sic] want have anything to do with it." As he was riding away, Chapparo ran up and grabbed him by the shoulder and told him to come back. Defendant insisted that the officer never asked him why he was there or informed him that he was under arrest. Rather, without saying anything, the officer reached into his pockets. Defendant testified that Chapparo often saw him in the area, and that he would have told the officer he was visiting his son and his son's grandmother, had he been asked. Defendant acknowledged that he had once shown Chapparo an identification card when the officer asked him what he was doing in Garfield Court. Defendant stated that at the time he was working for the Housing Authority. He explained that he had worked for the Authority, been fired, and then had returned to employment.
Two other witnesses testified on defendant's behalf. The first, Tracy Fann, the mother of defendant's son, confirmed that at the time of the incident she and her child lived at 23 Grant Court and that defendant visited his son almost every day until Thanksgiving of 1999. Fann had previously told the police that defendant was the father of her son. She testified that defendant was welcome in her apartment, and that the police never told her or defendant that he was not welcome to come there.
Randolph Phillips, the Director of Management and Housing Director for the Long Branch Housing Authority, testified that he had known defendant for six or seven years. Phillips was aware that Tracy Fann lived at 23 Grant Court in November, 1999. He said that he had no reason to think that defendant was not welcome there, and testified that although he had spoken to the police about keeping certain individuals out of the complex, defendant was not among those persons. He also confirmed that defendant had been doing work for him personally at the time of the incident.
Without making any specific findings, the trial court found Chapparo to be more credible. However, the court also believed some or all of Ms. Fann and Mr. Phillips' testimony, finding that defendant was not in fact a trespasser since he was visiting his child who lived there, and indeed, "was there all the time. He was welcome." Thus, the court at first suggested that the motion turned not on credibility but on the law. Since, the court concluded, defendant fit squarely within the statutory defense to the trespass statute, in that he "reasonably believed that the owner of the structure, or other person empowered to license access thereto, would have licensed him to enter or remain . . ." N.J.S.A. 2C:18-3d(3), it found that defendant was not a trespasser and there was, therefore, no basis for his arrest and search.
To the extent that the court found Chapparo to be credible we are bound to accept that finding where the testimony of defendant and Chapparo conflicts, since it is supported by the record. State v. Locurto, 157 N.J. 463, 474 (1999); State v. Johnson, 42 N.J. 146, 161 (1964). The court, however, was mistaken in resolving the motion initially on the basis that defendant was not in fact a trespasser. The critical inquiry was not guilt or innocence but ...