October 1, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASUAN THOMPSON, A/K/A RASUAN DURRELL THOMPSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-11-2186.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2007
Before Judges S. L. Reisner and Gilroy.
On November 26, 2003, a Bergen County Grand Jury charged defendant Rasuan Thompson with nine counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (Counts One through Nine); second-degree possession of a weapon, a firearm, for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Ten); third-degree possession of a weapon, a handgun, without a permit, N.J.S.A. 2C:39-5b (Count Eleven); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (Count Twelve); third-degree hindering apprehension, N.J.S.A. 2C:29-3 (Count Thirteen); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (Count Fifteen).*fn1
Following a denial of a motion to suppress evidence, defendant entered a plea of guilty on Count One in exchange for the State agreeing to recommend a maximum fourteen-year term of imprisonment, subject to the No Early Release Act*fn2 (NERA), and dismiss the balance of the charges. On December 14, 2004, defendant was sentenced to fourteen years of imprisonment, subject to the NERA, and five years of parole supervision upon release. All other charges were dismissed. Defendant appeals, and we affirm.
The salient facts, pertaining to the suppression motion as deduced from the testimony of Detective Timothy Torell and Patrolman Adolfo Gutierrez, both of the Englewood Police Department, the only witnesses to testify at the evidentiary hearing, are as follows. On August 3, 2003, defendant and co-defendant Jesus Pedraja entered a store in Englewood for the purpose of committing a robbery while defendant was in possession of a handgun. Unknown to defendant and Pedraja, the store had been under surveillance by Detective Torell. Torell observed the two perpetrators enter the store and exit approximately five minutes later, with Pedraja carrying a small, translucent, yellow bucket and defendant holding a handgun waist high, attempting to place the handgun into the waistband of his pants. After exiting the store, the two perpetrators entered a motor vehicle, fleeing the area, with the detective in pursuit, calling for backup.
Following the motor vehicle stop, defendant and Pedraja exited the vehicle with defendant pointing the handgun toward one of the backup officers. After Torell yelled, "Police. Don't do it," defendant fled while Pedraja was arrested at the scene of the stop. While at the scene, Torell looked inside the motor vehicle and saw the translucent, yellow bucket filled with money, jewelry, and a cell phone in plain view on the back seat. Defendant was arrested by Patrolman Gutierrez a short distance from the stop after discarding the handgun. After defendant was subdued, Gutierrez returned to the scene, picking up the discarded handgun as he proceeded back to the motor vehicle.
On appeal, defendant argues:
POINT I. THE COURT ERRED IN HAVING DENIED DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE DID NOT HAVE PROBABLE CAUSE TO SEIZE THE DEFENDANT OR HIS VEHICLE.
POINT II. THE SEARCH OF THE CAR WAS ILLEGAL BECAUSE THE POLICE WERE REQUIRED TO OBTAIN A SEARCH WARRANT BEFORE SEARCHING THE DEFENDANT'S VEHICLE.
POINT III. THE COURT FAILED TO ELICIT A FACTUAL BASIS FOR THE GUILTY PLEA AND THE DEFENDANT DID NOT UNDERSTAND THE NATURE OF THE CHARGES AGAINST HIM.
POINT IV. THE SENTENCE IMPOSED BY THE COURT WAS IMPROPER AND EXCESSIVE BECAUSE THE COURT APPLIED INCORRECT AG[G]RAVATING FACTORS AND IGNORED RELEVANT MITIGATING FACTORS, WHILE FAILING TO PROVIDE AN ADEQUATE EXPLANATION FOR THE FACTORS FOUND.
We have considered defendant's arguments in light of the record and applicable law. We determine that all of the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
Defendant argues that the trial judge erred in denying his motion to suppress evidence, contending that the police did not have probable cause to stop the vehicle and that the evidence should have been suppressed as "fruit of the poisonous tree," citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963). In the alternative, defendant contends that even if the "police had probable cause to [stop the motor vehicle and] seize defendant , the subsequent search of defendant's vehicle was illegal because the police were required to have a warrant." We disagree.
A warrantless stop of a motor vehicle may be made by the police when they have a reasonable, articulable suspicion that its operator "is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed. 2d 621, 628 (1981). Although the amount of reasonable suspicion required to justify an investigatory stop is lower than the probable cause standard required to sustain an arrest, State v. Stovall, 170 N.J. 346, 356 (2002), "[t]he standard requires 'some minimal level of objective justification for making the [vehicle] stop.'" State v. Golotta, 178 N.J. 205, 213 (2003) (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). Such an inquiry requires the court to evaluate the stop based on the totality of the circumstances.
Cortez, supra, 449 U.S. at 418, 101 S.Ct. at 695, 66 L.Ed. 2d at 629.
Here, the trial judge correctly determined that the police had reasonable, articulable suspicion to stop the vehicle. Detective Torrell had a clear, unobstructed view of the front of the store where the robbery occurred. Torrell, with the use of binoculars, observed defendant and Pedraja exit the door with Pedraja carrying a small, translucent yellow bucket with contents therein, and defendant armed with a handgun. Torrell observed the two perpetrators enter the vehicle and flee the scene. We are satisfied that Detective Torrell's observations established a reasonable, articulable suspicion justifying the stop of the motor vehicle.
After the motor vehicle was stopped, Torrell observed defendant exit the vehicle, point the handgun at another police officer, and flee the place of the stop. While Pedraja was arrested at the scene, Torrell observed the bucket filled with money, jewelry, and a cell phone, lying on the back seat of the motor vehicle in plain view. A warrant was not required for Torrell's seizure of the evidence. Johnson, supra, 171 N.J. at 206-207. Nor was a warrant required for the seizure of the handgun which Patrolman Gutierrez observed defendant discard while fleeing the scene. Ibid.
Defendant argues in Point III that the conviction should be reversed because the trial judge failed to elicit a factual basis for his plea and because defendant did not understand the nature of the charges against him. We find the contentions meritless. A review of the transcript of the October 20, 2005 plea proceeding discloses that defendant fully understood the nature of the charge, the consequences of the plea, and provided a succinct, factual basis for the plea when he answered questions propounded by his attorney:
[Defense Counsel]: On August 3rd 2003 were you in the City of Englewood and did you enter a structure at 34 Demarest Avenue, Englewood?
[Defense Counsel]: Did you enter the structure with a handgun?
[Defense Counsel]: And was it--when entering the structure with a handgun was it in the course of committing a theft?
[Defense Counsel]: Did you threaten immediately to commit the crime of murder upon Elliot Walls or purposely put Elliot Walls in fear of immediate body injury while armed with the weapon?