July 23, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PETER N. ARMBRUSTER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-11-1481.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 17, 2007
Before Judges Payne and Graves.
Following entry of a conditional plea of guilty to the second-degree offense of possession of a shotgun by a convicted felon, N.J.S.A. 2C:39-7, and imposition of a custodial sentence of five years, consecutive to a fifteen-year Mercer County sentence being served, defendant, Peter Armbruster, has appealed. On appeal, defendant presents the following arguments:
THE COURT REVERSIBLY ERRED IN GRANTING THE PROSECUTOR'S MOTION FOR RECONSIDERATION AND REVERSAL OF ITS APRIL 2, 2004 ORDER WHICH DISMISSED MORRIS COUNTY INDICTMENT 98-05-0617-I BECAUSE OF THE STATE'S FAILURE TO BRING ARMBRUSTER TO TRIAL WITHIN THE 180 [DAY] TIME LIMIT MANDATED IN THE INTERSTATE AGREEMENT ON DETAINERS (IAD), N.J.S.A. 2A:159A-1, ET. SEQ. (U.S. Const. Amend. VI; N.J. Const. (1947) Art I., Para. 10)
THE COURT REVERSIBLY ERRED IN REJECTING ARMBRUSTER'S MOTION FOR AN ORDER SUPPRESSING ANY AND ALL EVIDENCE, SEIZED FROM THE VEHICLE AND ANY STATEMENTS ALLEGEDLY MADE BY HIM. (U.S. Const. Amends. IV & XIV; N.J. Const. (1947) Art. 7)
ARMBRUSTER'S FIVE-YEAR PRISON TERM CONSECUTIVE TO THE TERM HE IS PRESENTLY SERVING FOR CONVICTIONS UNDER MERCER COUNTY INDICTMENT 01-10-1397 IS ILLEGAL AND EXCESSIVE.
The record indicates that at approximately 1:00 a.m. on October 31, 1997, Denville police officer Ken McEvoy stopped a 1989 blue Pontiac with temporary Pennsylvania plates for speeding. When McEvoy exited the patrol car, the Pontiac sped away, traveling at excessive speeds on various streets, with the police in pursuit, and eventually turning onto the eastbound lanes of Route 46. There, the car hit an embankment, became airborne, and crashed approximately 100 feet off the road in a wooded area at the border between Denville and Mountain Lakes. The driver, described by McEvoy as a brown-haired Caucasian man in his twenties, and the passenger, described as a red-haired Caucasian man, also in his twenties, fled on foot, leaving the motor running, the key in the ignition, and the car doors open.
A subsequent search of the vehicle, including its trunk, conducted by Sergeant Wagner, who arrived at the scene shortly after the crash, disclosed heavy-duty burglary tools, gloves and two ski masks, and a twelve-gauge shotgun, subsequently found to be bearing defendant's fingerprints. Additionally, the car contained various papers bearing defendant's name that included a criminal complaint and commitment from the Trenton Municipal Court; Burlington County Superior Court paperwork; bail recognizances from Burlington and Mercer Counties, as well as Bordentown; a domestic-violence complaint and restraining order; a burglary complaint; a Pennsylvania criminal complaint; and various motor-vehicle summonses. The Pontiac also contained a police scanner and a book listing police band frequencies.
A substantial number of officers from various municipalities participated in a search for the car's fleeing occupants that commenced shortly after the crash occurred. Although the majority of the police officers ceased their efforts at around 5:00 a.m., Wagner and two others continued to patrol the area in their cars in an ongoing effort to locate the two men.
Defendant, who had red hair and was twenty-seven at the time, was spotted by Wagner at 6:50 a.m., walking along Route 46 in the vicinity of the crash, carrying a sandwich wrapped in aluminum foil. When stopped, defendant initially gave his name as "Jim," the first name of one of the persons whose papers had been found in the Pontiac. When asked what he was doing, "Jim" stated that he was from Lodi and was returning to Lodi -- a town in Bergen County far beyond walking distance from Denville and Mountain Lakes. Upon McEvoy's arrival, "Jim" stated that his name was "Pete," a name corresponding to that of Peter Armbruster.
Suspicions aroused, the police frisked defendant, finding a small knife, a wallet containing a receipt from the Bordentown Municipal Court that matched papers in the car, a ski mask, and gloves similar to those found in the Pontiac's trunk. He was taken into custody.
At the police station, defendant was read his Miranda*fn1 rights on two occasions and, after each, gave statements explaining his whereabouts that, while not incriminating per se, were not corroborated upon further investigation.
Defendant was indicted by a Morris County Grand Jury on charges of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:30-4a; third-degree possession of a weapon, N.J.S.A. 2C:39-5c; second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b; fourth-degree unlawful possession of a radio to intercept emergency communications, N.J.S.A. 2C:33-22; and fourth-degree possession of a weapon, a knife, by a convicted felon, N.J.S.A. 2C:39-7a. He was subsequently arrested and jailed in Pennsylvania and, as a result, was not present, on September 10, 2001, at a scheduled pre-trial conference in his Morris County prosecution. A bench warrant was issued, and on September 12, 2001, the Morris County Prosecutor's Office lodged a detainer against him at the Schuylkill County, Pennsylvania, jail where he was incarcerated. On February 26, 2002, defendant pled guilty to the Pennsylvania charges, and he was later sentenced to a term of custody of one to two years. He was paroled on March 21, 2003, but was released to the custody of Mercer County officials on April 1, 2003 as the result of a detainer filed by that county. Although the Morris County detainer was supplied to Mercer County, defendant was released on bail on June 13, 2003. On July 23, 2003, defendant was arrested in Trenton, and a detainer lodged that day by Morris County was honored. Defendant was eventually sentenced to a fifteen-year custodial term as the result of his Mercer County offenses.
While awaiting trial in Morris County, defendant moved for dismissal of his indictment as the result of the prosecutor's alleged failure to bring him to trial within the 180-day period provided by the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15. Although the motion was initially granted, upon reconsideration and after a hearing had occurred, Judge Langlois found, on the basis of our decision in State v. Pero, 370 N.J. Super. 203 (App. Div. 2004), that defendant had not complied with the Act's provisions and, as a result, the 180-day deadline was not triggered. The indictment was thus reinstated. Additionally, the judge denied defendant's motion, premised upon his allegedly illegal detention, to suppress evidence seized from the Pontiac, as well as his statements to the police.
Following the court's denial of defendant's motions, he pled guilty to possession of a shotgun as a convicted felon, and he was sentenced by a different judge pursuant to the plea agreement to the minimum five-year term of custody applicable to second-degree crimes, to be served consecutively to his Mercer County sentence. In sentencing, the judge found aggravating factors 3, 6 and 9 to be applicable, with no mitigating factors. N.J.S.A. 2C:44-1(a)(3), (6) and (9). Defendant's pre-sentence investigation report discloses that he had at least seven prior convictions for indictable offenses.
On appeal, defendant first challenges the court's decision not to dismiss his indictment as the result of alleged non-compliance with the IAD. In that connection, defendant claims that by letters dated March 16, 2002, prior to his sentencing in Pennsylvania, he wrote to the Governor of New Jersey, the Governor of Pennsylvania, The President Judge [sic] of Morris County, Judge Bozonelis, the District Attorney [sic] of Morris County, and the Morris County Clerk to request final disposition of the Morris County charges pursuant to the terms of the IAD. Defendant claims, as well, that he sought the assistance of Schuylkill County jail personnel in perfecting his application. Although defendant submitted none of the four forms required by the IAD, N.J.S.A. 2A:159A-3; Pero, supra, 370 N.J. Super. at 207 and n.3, defendant claims that, because Pennsylvania's jail officials did not assist him in his submissions, his request for final disposition should be deemed to have substantially conformed to the requirements of the IAD. Defendant claims further that his request for final disposition was perfected upon the alleged receipt of his March 16 letter by the prosecutor on May 17, 2002.*fn2 As a consequence, defendant argues, the requirement of N.J.S.A. 2A:159A-3(a) that he be brought to trial within 180 days was triggered. Failure to conduct trial before the 180-day deadline, defendant contends, warranted dismissal of his indictment.
In her opinion on reconsideration, Judge Langlois found that defendant had failed to comply with statutory requirements, and that his letter, which contained some but not all of the information required by the four forms mandated by the IAD, did not constitute substantial compliance of a sort that would trigger the Act's protections. The judge noted:
The Appellate Division held [in Pero] that although the [IAD] statute is to have a liberal construction to favor the prisoner by applying a doctrine of substantial compliance, the prosecution of a defendant cannot be placed at risk solely based on the inefficiency of prison officials in another state or the lack of diligence by the prisoner himself. "The practical burden on the prisoner is to follow up his attempted delivery of a complete disposition request, that is Forms [1,] 2, 3, and 4, by periodically checking with the warden and the out-of-state prosecutor." [Pero, supra, 370 N.J. Super. at 221.] It is not the affirmative duty of the prosecutor to investigate or seek more complete information, even assuming incomplete or unsigned forms were received. "It does not serve either the legislative intent behind the IAD, or the public interest, for courts to dismiss an indictment where the prosecuting authority is not in violation of the compact." [Ibid.] Lack of attention by either the prisoner or the out-of-state prison authorities should not result in dismissal.
Because Judge Langlois properly construed and applied Pero upon further consideration of defendant's motion, and because, in the absence of evidence of prosecutorial fault, we see no grounds to diverge from the reasoning of that decision,*fn3 which, we note, involved far greater compliance with the Act than occurred in the present case, we reject defendant's argument that the indictment against him should have been dismissed.
Defendant next challenges the judge's denial of his suppression motion, claiming that Wagner had no legal basis to stop him and that Wagner, a Denville officer, lacked the statutory authority to do so, since the stop occurred in Mountain Lakes.
We reject defendant's arguments. The evidence at the suppression hearing disclosed that defendant was observed by McEvoy, just prior to the commencement of the eluding, to be Caucasian and in his twenties, and to have a distinctive shade of red hair that was probably chemically produced. Defendant fled from the Pontiac some time after 1:00 a.m. on October 31, 1997. He was sighted very close to the Pontiac approximately six hours later at a time and location unusual for pedestrians. His appearance conformed to McEvoy's description. When Wagner asked his name, defendant gave the first name of one of the persons whose papers were found, along with burglary tools and a shotgun, in the Pontiac. Defendant's explanation for his presence on the roadway was suspicious and, when McEvoy then asked his name, he gave the first name of another person whose identity was tied to the Pontiac.
We regard these facts, together with the inferences that can be drawn from them in the circumstances, as sufficient to give rise to the reasonable suspicion of criminal activity that will support an investigatory stop. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968); State v. Rodriguez, 172 N.J. 117, 126-27 (2002). We note that, in this case, the stop did not arise as the result of the receipt of an anonymous tip but, rather, arose from ongoing investigatory activities by the police. Precedent cited by defendant applicable to tips is thus distinguishable. See id. at 127-28 (discussing legal standards relating to such precedent). The police's subsequent pat-down search was justified under the principles expressed in State v. Nishina, 175 N.J. 502, 514-17 (2003), particularly in light of their prior discovery of a weapon and burglary tools in the Pontiac in which a person matching defendant's appearance had been observed as a passenger. The Terry stop and subsequent frisk were therefore proper, and no reason exists to suppress their fruits.*fn4
We find no merit in defendant's argument that because Wagner's stop occurred outside his jurisdiction, it was illegal. Defendant did not meet his burden of demonstrating that the stop, in fact, occurred in Mountain Lakes, not Denville. But even if we were to find that burden was met, the stop would still be lawful, pursuant to N.J.S.A. 2A:156-1 and -2, as made while the pursuit of the culprits, commencing with the onset of the eluding, continued without interruption.
As a final matter, we reject defendant's arguments pertaining to the five-year custodial sentence imposed pursuant to the plea, finding its consecutive nature to have been justified under principles established in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). The mitigating factors that defendant claims should have been recognized are not supported by the record. State v. Dalziel, 182 N.J. 494, 504-05 (2005). And, in any case, the sentence imposed represented the statutory minimum for a second-degree crime. N.J.S.A. 2C:43-6a(2).