Before Judges Stern, Coburn and Alley. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 98-8-962.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Pursuant to his guilty plea in a capital prosecution, defendant was convicted of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1)(2) (count one), felony murder, N.J.S.A. 2C:11-3a(3) (count five), two counts of armed robbery, N.J.S.A. 2C:15-1a (counts two and three), and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count four). A jury could not reach a unanimous decision as to the penalty, and the trial judge merged the felony murder and possessory offense into the purposeful or knowing murder (count one) and sentenced defendant to life imprisonment with 63 3/4 years to be served before parole eligibility under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. He imposed a consecutive sentence of twenty years with 85% for one armed robbery (count two) and fifteen years with 85%"concurrent to counts one and two" for the others.
On this appeal, defendant argues that his motion to suppress"the ammunition clip, gun and his statements to the police" subsequent to a"pat-down" of his person and"discovery of the ammunition clip" should have been granted.*fn1 He contends that there was no authority to order defendant, who had been reported as a"missing person," out of the car in which he was observed by the police, to"pat him down" thereafter or to enter his pants pocket without having felt a weapon, and, in any event, to enter his car where a nine millimeter handgun was located. He further argues that his statements at the scene relating to the ammunition clip in his pocket and the gun in the vehicle and a subsequent formal statement at headquarters about a prior murder were not admissible, that the"inevitable discovery doctrine" cannot be used to permit admissibility of the gun, that the NERA sentence for the murder is illegal, and that the consecutive maximum sentence for the armed robbery of the murder victim cannot stand. We affirm the conviction but vacate the NERA portion of the sentence for murder.
At approximately 10:30 p.m. on April 9, 1998, the car defendant was driving was observed in the parking lot of a hotel in Fairfield, Essex County. It was parked on an angle with its engine running in a stall which caught the attention of a police officer while on routine patrol. Based on his knowledge of car thefts and attempted suicides in the lot, Officer Vincent Crapello ran the license plate number through his mobile data terminal ("MDT"). The MDT inquiry revealed that the last person authorized to drive the vehicle was reported as"missing."
According to the testimony of Officer Crapello at the motion to suppress:
A The alarm was for a -- it was attached to the vehicle, when I typed in the license plate it came back that -- the registered owner of the vehicle, but then the alarm sounded that a person who was last occupying that vehicle was listed in the computer [as] a missing person.
Q And how does the computer give you that information? How does it display it or otherwise convey it to you?
A The information is displayed on the MDT screen itself, on the computer screen.
Q And in this particular case what was it displaying?
A It had displayed the owner of the vehicle, the registration information regarding the vehicle, and then immediately following that said missing person EMD, endangered and it gave the particulars of the person that was in the want -- in the hit.*fn2
Q Was -- first of all, who was reported to you at that time as the registered owner?....
A I'm sorry, it was owned by an Alberto E. Guzman (phonetic), residing at 7678 Market Street in Paterson.
Q Now was that or was that not the same person that the other information came across on?
Q And who was the other person identified?
A As John Kenny Diloreto.
Q And what information did the MDT provide you regarding him?
A That gave his name, his date of birth, Social Security number, the agency that reported him missing.
A Jefferson Township Police Department.
A Other various descriptors of the individual, his sex, race, height, weight, hair color, eye color.
Q And this information is visible to you on a screen in your -- on your laptop?
As a result of the information received, Officer Crapello called for"a backup officer," and after Officer Richard Filipow arrived, Crapello described what occurred:
A I walked up to the driver's side of the vehicle from the rear. I shone -- shone --shined my flashlight into the car and I noticed an individual inside the vehicle.
Q And can you describe the individual you noticed inside the vehicle?
A It was a white male and he appeared to be sleeping at the time. He was reclining back in his seat with his head leaning to the left, either against the frame or on the seat of the vehicle.
Q Now at that point that you made that observation can you estimate for me how much time had passed since you had initially driven by the car and saw exhaust apparently coming out of the vehicle?
A It would have been approximately three and-a-half, four minutes, somewhere thereabouts.
Q After you observed this individual in the vehicle what happened next?
A Officer Filipow had taken up a position on the right rear portion of the vehicle as a -- as a backup unit, as a cover unit. I attempted to open the car door, the door was locked. And at that point I knocked on the window to try to waken the person inside the car.
Q And what happened when you did that?
A After I knocked the person inside the car woke up.
Q And what happened next?
A He rolled down his window. I asked him for identification and he handed up his driver's license and Social Security card.
Q And did you examine these items?
Q And when you examined those documents what were they, what did they say?
A The names on the documents were the same name as the person shown on the NCI hit as the missing person.
Q And who was that again?
A That was John Kenny Diloreto.
Q After looking at this documentation that the driver handed to you and after examining it what did you do next?
A I was going to go back to my squad car to have headquarters confirm the want through Jefferson Township P.D. Before I did that Officer Filipow came up, took up my position on the driver's side of the vehicle to keep his attention focused on the occupant of the vehicle. And once Officer Filipow got there I in fact returned to my squad car, notified headquarters to contact Jefferson P.D. to validate the hit.
While waiting for a response, Crapello decided to"secure" the individual"in the back of the patrol car until Jefferson... g[o]t back to us one way or the other, whether or not he's actually wanted or not." According to Crapello:
A Again, I was sitting in the patrol car, we were waiting for a few minutes for Jefferson P.D.'s response and I had told Officer Filipow we're going to bring this guy out of the car and secure him in the back of the patrol car until Jefferson g[o]t back --gets back to us one way or the other, whether or not he's actually wanted or not.....
Q Now after you had made the determination to place him in the rear of your patrol vehicle, what happened next?
A Officer Filipow went over to the driver, asked him to step out of the car. He was pat-searched before getting into the back of the car for officer's safety. And as I witnessed, Officer Filipow pat-searching the individual he asked the person who was being searched what the object was that he felt in his right front pocket.
Initially the individual replied I don't know, sir. And as Officer Filipow attempted to retrieve the item the person who was ...