On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-04-1227 and 06-04-1228.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Yannotti.
Defendant Thomas Woods appeals from an order entered on October 12, 2006 by Judge Thomas R. Vena, which denied in part defendant's motion to suppress certain evidence obtained by the police in a search of his automobile. For the reasons that follow, we affirm.
Defendant was charged under Essex County Indictment No. 06-04-1227 with third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count one); first-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(1) (count two); third-degree unlawful possession of weapon, N.J.S.A. 2C:39-5b (count three); and second-degree possession of a weapon while committing a drug offense, N.J.S.A. 2C:39-4.1 (count four). Defendant also was charged under Essex County Indictment No. 06-04-1228 with second-degree unlawful possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b (count one).
Defendant filed a motion to suppress evidence obtained by the police in a search of his vehicle, specifically cocaine found in the door handle of the arm rest on the driver's side of the car, cocaine found partially concealed under the driver's seat, cocaine found in the front pocket of defendant's jacket, and a weapon found under the front passenger seat. On October 5, 2006, Judge Vena conducted an evidentiary hearing on the motion. At the conclusion of the hearing, the judge placed his decision on the record. He granted defendant's motion to suppress the weapon but denied the motion to suppress the other evidence. The judge entered an order on October 12, 2006, memorializing his decision.
On December 4, 2006, defendant pled guilty to count two of Indictment No. 06-04-1227, which charged first-degree possession of a controlled dangerous substance with intent to distribute. Defendant reserved the right to appeal the partial denial of his motion to suppress. The State agreed that it would recommend the imposition of a sentence appropriate to a second-degree offense, specifically a six-year term of incarceration. The State also agreed to the dismissal of the remaining counts of Indictment No. 06-04-1227 and the single count of Indictment No. 06-04-1228. On March 19, 2007, the judge sentenced defendant pursuant to the plea agreement to a six-year term. The judge also imposed appropriate monetary assessments and penalties. This appeal followed.
At the suppression hearing, the State presented testimony from Officer Richard Wiggins of the South Orange Police Department. Wiggins stated that on December 28, 2005, at around 9:46 p.m., he was alone on patrol in a marked police vehicle. Wiggins observed a gray Chevrolet Impala traveling the wrong way on a one-way street. Wiggins activated the overhead lights on his police vehicle and stopped the Impala. Defendant was driving the vehicle. He was the sole occupant of the car. Wiggins relayed the Impala's license plate number to police headquarters and approached the vehicle on the driver's side. Back-up assistance was dispatched to the scene.
Wiggins stated that the area was well-lit. He said that he observed defendant fastening his seat belt. Wiggins thought that defendant would say that he had been wearing the seat belt while he was driving the car. Wiggins said that he asked defendant for his credentials. Defendant removed his seat belt and obtained his credentials.
Wiggins testified that he observed defendant using his right foot to hide something beneath the driver's seat. Wiggins spoke to defendant. He said that he wanted to keep defendant busy until his back-up arrived. Defendant remained in the car. Wiggins asserted that defendant appeared "very nervous" and "agitated."
While Wiggins was speaking with defendant, an individual who was later identified as Glen Wilson came through a nearby alley and approached on the opposite side of the street. Wilson told Wiggins that defendant was there to help him with his disabled car. Wiggins ordered Wilson to go away. Wilson complied and went back through the alley. According to Wiggins, it appeared that defendant wanted him to quickly issue the summons so that he could leave. At that point, Officer ...