June 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILFREDO GONZALEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-12-4325.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 20, 2008
Before Judges Skillman and Yannotti.
Defendant Wilfredo Gonzalez was charged under Camden County Indictment No. 98-12-4325 with the murder of Henry Lewandowski, N.J.S.A. 2C:11-3a(1)(2) (count one); felony murder, N.J.S.A. 2C:11-3a(3) (count two); armed robbery, N.J.S.A. 2C:15-1 (count three); burglary, N.J.S.A. 2C:18-2a(1), -2b(1)(2) (count four); kidnapping, N.J.S.A. 2C:13-1b(1)(2) (count five); carjacking, N.J.S.A. 2C:15-2a(1)(2)(3)(4) (count six); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count seven); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count eight); and hindering his own apprehension or prosecution, N.J.S.A. 2C:29-3b(1) (count nine). On September 22, 1999, following a suppression hearing, the court denied defendant's motion to suppress evidence obtained during the stop of the vehicle that defendant was driving.
On June 18, 2001, defendant pled guilty to felony murder, as charged in count two of the indictment. At the plea hearing, defendant stated that on January 8, 1998, he forced his way into Mr. Lewandowski's home for the purpose of robbing him. Defendant said that he took the keys to Mr. Lewandowski's car, tied him up, put him in the trunk, and drove to a location where he withdrew money from Mr. Lewandowski's account using his money access card.
Defendant also said that he drove with another person to a location in Camden, where he exited the car to purchase marijuana and gave a gun to the other person. Defendant conceded that he was aware the other person might use the gun to shoot Mr. Lewandowski. Defendant stated that he heard a gunshot, got back into the car, and drove off. Defendant was arrested the following day and Mr. Lewandowski's body was found in the trunk of the car.
Defendant was sentenced on July 27, 2001, to a custodial term of thirty years, without the possibility for parole. The judge imposed appropriate penalties and assessments and ordered defendant to pay Mr. Lewandowski's family the expenses that they had incurred for Mr. Lewandowski's burial. The remaining counts of the indictment were dismissed.*fn1
Defendant appeals from the judgment of conviction entered by the trial court on July 27, 2001, and raises the following issues for our consideration:
THE TRIAL COURT ERRED IN ADMITTING THE UNCONSTITUTIONALLY SEIZED EVIDENCE RECOVERED DURING THE PHILADELPHIA, PENNSYLVANIA TRAFFIC STOP IN VIOLATION OF DEFENDANT WILFREDO GONZALEZ FEDERAL AND STATE CONSTITUTIONAL RIGHTS.
AS THE TRIAL COURT'S SENTENCE EXCEEDED THE AGREED UPON PLEA AGREEMENT, DEFENDANT WILFREDO GONZALEZ MAY WITHDRAW HIS PLEA PURSUANT TO R. 3:9-3(e) (NOT RAISED BELOW).
For the reasons that follow, we reject these arguments and affirm.
We briefly summarize the pertinent evidence presented at the September 22, 1999 hearing on defendant's suppression motion.*fn2 On January 9, 1998, Officers Brian Werner and Donna Sewell of the Philadelphia Police Department (PPD) were on patrol during the 4:00 p.m. to 12:00 a.m. shift. At about 8:11 p.m., Werner and Sewell were in their marked patrol car in the vicinity of Palethorp and Somerset Streets in Philadelphia. Werner was driving the vehicle.
Werner testified that he observed a 1997 blue Ford Taurus with a New Jersey license plate. The Taurus was traveling westbound on Monmouth Street approaching Palethorp Street. Werner said that the driver of the Taurus failed to signal a left-hand turn as he was turning from Monmouth onto Palethorp.
Werner indicated that the failure to signal a turn was a motor vehicle violation in the State of Pennsylvania. Werner said that he activated the overhead lights of his vehicle and "hit the siren." Werner said that he and Sewell stopped the Taurus at Palethorp and Somerset, "just south of Somerset."
Werner was asked why he pulled over the Taurus at Palethorp and Somerset rather than stop the car immediately at Monmouth and Palethorp. He stated that Monmouth and Palethorp is a "high drug area" and it "is not well lit." Werner also said that he was with Officer Sewell, who was a new officer, and at Palethorp and Somerset, there was a street light and less vehicular traffic.
Werner further testified that he and Sewell approached the vehicle and asked the driver for the registration, the insurance card, and his driver's license. Werner identified defendant as the person who was driving the Taurus. The driver remained in the car. Werner also said that a black female was in the passenger seat and a young child, about one year old, was in the back seat.
According to Werner, defendant told him that he did not have a driver's license but he produced a registration and insurance card for the vehicle. Henry Lewandowski's name was on the registration card. Defendant told Werner that the car was owned by "a friend of his father[.]" Werner had defendant turn the engine off and took the car keys, which he placed on the roof of the vehicle. Werner went back to the patrol car and Sewell remained with the Taurus, on the passenger side of that vehicle.
Werner radioed the dispatcher and asked the dispatcher to run a check on the New Jersey license plate number in order to access information available through the National Crime Information Center (NCIC). Werner was informed that the NCIC had reported that Mr. Lewandowski, the owner of the vehicle, was missing and considered to be in danger.
Werner again radioed the dispatcher and requested that a supervisor meet him at Palethorp and Somerset. Werner returned to the Taurus and asked defendant to step out of the vehicle. Defendant exited the car, was handcuffed, and placed in the back of the police vehicle. Defendant's passenger and the child remained in the Taurus.
Werner's supervisor, Sergeant John Hewitt, arrived on the scene in about thirty seconds to a minute. Hewitt took the car keys and opened the trunk. Werner said that they found an older man in the trunk, who was "bluish in the face." Hewitt checked the man's vital signs but found that the man "had no pulse." As stated previously, the police identified the body as that of Mr. Lewandowski. Another police unit responded to the scene and transported defendant to the homicide division at police headquarters. Sewell removed the female passenger from the scene, and the Department of Human Services came and took custody of the child.
On cross-examination, Werner stated that he stopped the Taurus in the 2700 block of Palethorp Street. Werner indicated that there was no barricade on Monmouth that would block a vehicle from going southbound on Palethorp but the part of Palethorp north of Monmouth was "barricaded off[.]" Werner said that Palethorp was a one-way street to the south.
Werner also indicated that the Taurus had not pulled over and he did not recall seeing anyone in the car talking to anyone outside of the car. Werner noted that, after Mr. Lewandowski's body was found in the trunk of the car, he returned to police headquarters, where he was questioned by Detective Hoffner concerning the stop. Werner provided Hoffner with a three-page statement.
Werner conceded that in the statement he gave to Hoffner, he did not mention that he waited to stop the Taurus until it was in a "better-lighted area[.]" Werner also said that he did not tell Sewell that he had observed the Taurus make an illegal left-hand turn. He also stated that, after he stopped the Taurus, he heard no noise coming from the trunk.
Officer Sewell testified that on January 9, 1998, she was on patrol with Officer Werner, working the 4:00 p.m. to 12:00 a.m. shift. Werner was driving the police vehicle. On that date, Sewell had been a police officer for one week. Sewell and Werner were on patrol in the vicinity of Palethorp and Somerset Streets. Sewell said that she was not familiar with the area. Sewell observed a 1997 blue Ford Taurus in the 2800 block of Palethorp Street. The vehicle had a New Jersey license plate. Sewell said that, when she first observed the Taurus, the vehicle was stopped.
Sewell indicated that she observed two Hispanic females standing on the pavement talking to the driver and the passenger in the Taurus. Sewell said that the window of the police vehicle was open and she was able to hear the conversation. According to Sewell, the Hispanic females told the driver of the Taurus to move along because a police vehicle was behind him.
The driver moved the Taurus forward and he was eventually stopped by Officer Werner in the 2700 block of Palethorp Street. Sewell and Werner exited the police vehicle. Werner approached the Taurus on the driver's side; Sewell approached the vehicle on the passenger side. She said that a black female was seated in the passenger seat and a baby was in the back seat.
Werner asked the driver who owned the vehicle. The driver told Werner that the car belonged to "his father's friend[.]" Sewell said that, while Werner "was running the tags," she watched the passenger. Sewell indicated that she heard the broadcast from the dispatcher with the response "on the tags." According to Sewell, the response "came up missing person."
At that point, Werner had the driver exit the Taurus. Werner handcuffed the driver and placed him in the rear of the patrol car. Werner requested that a supervisor respond to the scene. Sergeant Hewitt arrived, spoke with Werner, and then opened the trunk of the Taurus. Sewell said that she could see into the trunk. She observed "[a] white male wrapped in telephone cords[.]" Sewell conceded that she did not cite the driver with any motor vehicle violation. Sewell identified defendant as the driver of the Taurus.
On cross-examination, Sewell agreed that, on January 9, 1998, she was new to the police department. She said that patrol of the area was "normal" police procedure. Sewell indicated that, before seeing the Taurus on the 2800 block of Palethorp Street, she had not seen the car. Sewell also said that Monmouth is a one-way, residential street that runs to the west.
She indicated that the police vehicle came through Monmouth and made a left turn onto Palethorp. Sewell conceded that a car coming west on Monmouth had no option other than to turn left onto Palethorp. She agreed that Werner did not say that the Taurus had committed "any kind of violation[.]" Sewell also stated that she did not observe any violation.
Sewell noted that the Taurus went through two intersections before she and Werner stopped that vehicle. She agreed that the Taurus stopped immediately after the overhead lights of the police vehicle were turned on. Sewell said that she did not hear any sounds coming from the trunk. She also said that she did not detect any odors of any kind.
Sergeant Hewitt testified that on January 9, 1998, he was on the 4:00 p.m. to 12:00 a.m. shift and was assigned to the supervisor's car. At approximately 8:15 p.m., Hewitt responded to a radio request from Officer Werner for a supervisor. Hewitt was at the scene at Palethorp and Somerset Streets in approximately one minute. Hewitt noted that the NCIC had advised that the owner of the Taurus was missing under unusual circumstances.
Hewitt said that when he arrived on the scene, he spoke with Werner, who told him that the person in the rear of the police vehicle had been driving the Taurus. Werner stated that the driver had a registration card, keys for the vehicle, but no identification. Hewitt testified that, after speaking with Werner, he opened the trunk, "due to the nature of the NCIC report." Hewitt stated that he wanted to be sure that the owner of the vehicle was not inside the trunk "in need of medical assistance." Hewitt identified defendant as the person who had been sitting in the rear of Werner's patrol car.
Hewitt said that, when he opened the trunk, he observed "a white male laying on his right side, facing the trunk of the vehicle with his hands tied behind his back." Hewitt checked for vital signs and found none. Hewitt was shown photos taken of the body at the scene, and testified that they indicated that the man in the trunk had been gagged. Hewitt said that he immediately preserved the vehicle as a crime scene for the homicide division.
The judge placed his decision on the record. He found that Werner made a lawful stop of the Lewandowski vehicle because Werner observed defendant make a left-hand turn without signaling, which was a violation of the Pennsylvania motor vehicle code. The judge stated that, based on his observation of the testimony of Sewell and Werner, he was satisfied that Werner's version of the stop was "the more logical and correct version" of what had occurred.
The judge noted that Sewell had only been working as a police officer for one week when the stop occurred, and she did not know the area at all. The judge commented that the driver would normally observe the path of other vehicles and the area being traveled. Thus, the judge found that Werner's testimony was more credible than that of Sewell on the issue of whether defendant made a left-hand turn without signaling.
The judge additionally noted that, although barricades were set up in the neighborhood, and defendant had to make a left-turn from Monmouth onto Palethorp, defendant should have signaled before doing so. The judge concluded that, under Pennsylvania's motor vehicle code, a vehicle may not make a turn without giving an appropriate signal, and a signal to turn left has to be given continuously as the turn is being made. The judge concluded that Werner had reasonable grounds to stop the Lewandowski vehicle.
The judge further found that defendant did not have standing to challenge the search of the trunk of the car because it was a stolen vehicle. The judge observed that defendant did not have any interest in the car or its contents that is protected from an unreasonable search or seizure by the Fourth Amendment to the United States Constitution or the analogus provision of New Jersey's Constitution.
In addition, the judge found that Sergeant Hewitt and Officer Werner were justified in conducting a warrantless search of the trunk of the Lewandowski vehicle because they had been informed that the vehicle was stolen, the owner was missing, and he was believed to be in danger. The judge concluded that the officers had reasonable grounds to believe that the owner might be in the trunk of the car and, if so, might require medical assistance. The judge stated:
I'm satisfied [that] there was a good faith belief in this case that someone was in peril and could have sustained bodily harm beyond the death which obviously . . . was not known to the officers until the body was found. Therefore, . . . it's not the finding of the body that creates the exigent circumstances. It's the information that was imparted to the police officer indicating that the owner was endangered and that he was missing that gave rise to the suspicion and the good cause for then having the trunk searched for that very purpose.
The judge alternatively found that suppression of the evidence was not warranted under the inevitable discovery principle. The judge noted that, upon the pursuit of the normal police investigatory procedures, it was inevitable that Mr. Lewandowski's body would have been found in the trunk of the car.
Defendant argues that the judge erred by denying his motion to suppress the evidence obtained after the motor vehicle stop. Defendant contends that there were conflicts between Werner's and Sewell's testimony as to whether defendant violated Pennsylvania's motor vehicle code by turning from Monmouth Street onto Palethorp Street without signaling, and also as to whether the Lewandowski vehicle had stopped while its occupants spoke to two Hispanic females. Defendant contends that, in view of these conflicts, the judge erred by finding Werner's testimony to be more credible than Sewell's. We disagree.
The standard that governs our review of the trial judge's findings of fact is well established. An appellate court must defer to the finding of a trial judge when they are "substantially influenced by" the judge's "opportunity to hear and see the witness and to have the 'feel' of the case" which a reviewing court does not have. State v. Johnson, 42 N.J. 146, 161 (1964). We may not disturb the trial court's findings merely because we might have reached a different conclusion had we been reviewing the evidence in the first instance. Id. at 162. Thus, the trial court's factual findings are considered binding on appeal if they could "reasonably have been reached on sufficient credible evidence present in the record." Ibid. See also State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Locurto, 157 N.J. 463, 474 (1999).
We are satisfied from our review of the record that the trial judge's factual findings are supported by sufficient credible evidence. As we have pointed out, Officer Werner testified that he observed defendant make a left-turn from Monmouth Street onto Palethorp Street without making a left-hand signal. Although Sewell testified that she did not see defendant violate the traffic laws and Werner never informed her that defendant had done so, the judge determined that Werner's testimony was credible and the judge set forth sound reasons for his credibility finding.
The judge noted that, at the time the traffic stop occurred, Werner had been a police officer longer than Sewell. Indeed, she had only been a police officer for about a week. Werner also was familiar with the area and Sewell conceded that at the time the stop took place, she did not know the area at all. The judge further noted that Sewell's description of the path of the Taurus was confusing. Accordingly, there is sufficient evidence in the record to support the judge's finding that Werner's version of the motor vehicle stop was more complete, logical and accurate than the version provided by Sewell.
Because the record supported the judge's finding that defendant violated the Pennsylvania vehicle code by making the left-hand turn without signaling, the judge correctly concluded that Werner was justified in stopping the Taurus. Under the law of Pennsylvania, a police officer is authorized to stop a vehicle when the officer has "articulable and reasonable grounds to suspect" a violation of the vehicle code. Commonwealth v. Wituszynski, 784 A.2d 1284, 1289 (Pa. 2001). New Jersey adheres to the same principle. See State v. Golotta, 178 N.J. 205, 212-13 (2003) (noting that a police officer may stop a motor vehicle when the officer has reasonable and articulable suspicion that the driver has committed a motor vehicle offense). Therefore, whether measured under Pennsylvania or New Jersey law, the stop of the Taurus was valid.
We note that in this appeal, defendant does not challenge the trial court's finding that the police officers conducted a valid, warrantless search of the trunk of the Lewandowski vehicle. In any event, it is well established that a person "operating an automobile known by him to have been stolen has no reasonable expectation of privacy respecting" anything that the person has concealed therein. State v. Lugo, 249 N.J. Super. 565, 568 (App. Div. 1991).
Furthermore, Officer Werner and Sergeant Hewitt were justified in undertaking a warrantless search of the trunk of the Taurus to determine whether Mr. Lewandowski was being kept there and whether he might require medical assistance. Neither the Fourth Amendment to the United States Constitution nor the analogous provision of the New Jersey Constitution requires that a police officer "stand by in the face of an imminent danger and delay potential lifesaving measures while critical and precious time is expended obtaining a warrant." State v. Frankel, 179 N.J. 586, 599 (2004).
We therefore conclude that the trial judge correctly denied defendant's motion to suppress the evidence obtained in the Taurus after the motor vehicle stop.
We turn to defendant's contention that he should be permitted to withdraw his plea because at sentencing the trial judge ordered him to reimburse the Lewandowski family for the expenses they incurred for Mr. Lewandowski's burial. Defendant argues that he was misinformed as to a material term of the plea and he would have changed his decision to plead guilty had he been informed that he would have to pay the expenses for the victim's burial. Again, we disagree.
Rule 3:21-1 provides that "[a] motion to withdraw a plea of guilty . . . shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." A defendant has the burden "'to present some plausible basis for his request, and his good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion.'" State v. Luckey, 366 N.J. Super. 79, 86 (App. Div. 2004) (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974)).
Moreover, the defendant's burden is heavier when the guilty plea is a result of a voluntary and knowing plea agreement. Id. at 87-88. In these circumstances, the defendant must show that he was misinformed about a material term of the plea agreement, his reasonable expectations were not fulfilled, or he would be prejudiced if the agreement is enforced. Id. at 88 (citing State v. Howard, 110 N.J. 113, 122-23 (1988)).
In our view, the requirement that defendant pay his victim's burial expenses cannot fairly be characterized as a material departure from the terms of the plea agreement. Here, defendant pled guilty to the count of the indictment charging felony murder. The State agreed to recommend a thirty-year term of incarceration without the possibility of parole. The State additionally agreed to the dismissal of the remaining eight counts of the indictment.
We recognize that the State also agreed that it would not seek restitution from defendant. However, we are satisfied that requiring defendant to pay Mr. Lewandowski's burial expenses is not the sort of material departure from the terms of the plea agreement that would allow a defendant to withdraw his plea.