On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-10-02166.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sapp-Peterson.
Defendant Nathaniel S. Hernandez was charged under Atlantic County Indictment No. 04-10-2166-C with the following crimes: third degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5b (count one); fourth degree possession of a prohibited weapon, a switchblade, N.J.S.A. 2C:39-3e (count two); third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count three); fourth degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7 (count four); and second degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7 (count five).
Following the denial of his motion to suppress evidence on January 18, 2004, defendant entered a guilty plea that same day. In accordance with the terms of the plea agreement, defendant pled guilty to second degree certain persons not to possess a weapon (count five) in exchange for a five-year term of imprisonment with a five-year period of parole ineligibility. All other charges against defendant were dismissed and the court accepted defendant's guilty plea.
On appeal, defendant raises the following argument:
AS OFFICER BEATTIE DID NOT HAVE THE REQUISITE REASONABLE SUSPICION THAT DEFENDANT WAS ARMED AND DANGEROUS, THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS EVIDENCE. ALTERNATIVELY, THE OFFICER EXCEEDED THE SCOPE OF A PERMISSIBLE PAT-DOWN OF DEFENDANT.
After careful consideration of the defendant's argument in light of the facts and of the applicable law, we affirm.
On the evening of September 24, 2004, at approximately 8:00 p.m., Officer William Beattie of the Atlantic City Police Department was on patrol in a marked police vehicle on the 400 block of Harrisburg Avenue. Beattie observed a group of three men holding beer cans and talking with two women standing in front of an apartment building. As Beattie drove by, one of the men attempted to hide his beer can inside his coat. Seeing this, Beattie, who was in uniform, stopped his vehicle and approached the men.
As he approached, Beattie saw that the cans were open, in violation of a city ordinance. He then asked the man who had been attempting to hide the can for his identification. While the man was retrieving his identification, one of the other men, subsequently identified as defendant, began walking away backwards toward the apartments. Defendant repeatedly said "I'm going to go in the apartment and get my ID." Beattie, who had not asked for defendant's ID, directed defendant to stop. Despite this, defendant continued to back away from the officer.
Beattie then approached defendant and commanded in a louder and more authoritative voice for defendant to stop and stated that he did not want his ID. Defendant finally stopped, and as he did so, Beattie noticed a large bulge beneath defendant's shirt near the waistband, which Beattie believed to be a weapon. When Beattie asked defendant if he had any weapons on him, defendant failed to respond.
Consequently, Beattie slowly lifted the front of defendant's shirt with two fingers, revealing the bulge to be a cellular telephone clipped to defendant's waistband. However, still suspecting that defendant was armed, Beattie reached around towards defendant's back. Doing so, Beattie rested his hand directly on a handgun at defendant's back waistband. Due to his training and experience, Beattie immediately recognized the object under his hand to be a handgun. Beattie secured the weapon, placed defendant under arrest and radioed for additional units. Defendant was ...