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State v. Neal

October 6, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY NEAL, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-12-1770.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 2, 2008

Before Judges Payne and Alvarez.

The issue presented on this appeal is whether information volunteered by unknown citizen witnesses at the scene of a shooting constitutes a lawful basis for an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). We find that it does and we consider the investigatory stop conducted in this case to have been lawful. We therefore affirm.

Following the denial of defendant Anthony Neal's motion to suppress, he entered a guilty plea to possession of a controlled dangerous substance (CDS) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. On January 12, 2007, defendant was sentenced in accordance with the plea agreement to six years imprisonment, subject to three years of parole ineligibility, together with appropriate fines and penalties. This appeal followed.

The sole witness at the suppression hearing was Jersey City police officer Anthony Mochella, a ten-year veteran of the force. Mochella testified that on the afternoon of August 29, 2005, while in uniform, he was dispatched to the scene of a shooting, which he described as "hectic" at the time of his arrival. Mochella's assignment was to direct traffic at the corner of Bidwell Avenue and MLK Drive, as the victim was "still laying in the middle of the intersection" and the ambulance had not yet arrived. Mochella was approached by two women whom he assumed resided in the neighborhood. They told him that two persons "involved in the shooting were walking east on Bidwell Avenue." He notified his sergeant, and they immediately proceeded down Bidwell Avenue. They stopped the two individuals who had been pointed out to Mochella, one of whom was defendant. Mochella frisked defendant to "check for a gun."

During the course of the frisk, Mochella felt a large object that he suspected was heroin. He then reached into defendant's pocket and pulled out bundles of heroin, which defendant unsuccessfully sought to suppress.

Defendant's legal challenges, as recited in his brief, are:

POINT I THE BARE AND UNDETAILED STATEMENT OF THE TWO UNKNOWN AND UNIDENTIFIED INFORMANTS THAT DEFENDANT WAS SOMEHOW "INVOLVED IN THE SHOOTING," WITHOUT ANY CORROBORATION OR ADDITIONAL GROUNDS FOR SUSPICION, DID NOT JUSTIFY THE INVESTIGATIVE STOP.

A. THE MOTION COURT ERRED AS A MATTER OF LAW BY CLASSIFYING THE TIP AS A CITIZEN TIP RATHER THAN AN ANONYMOUS TIP

B. VIEWED PROPERLY AS AN ANONYMOUS TIP, THE STATEMENT AT ISSUE DID NOT JUSTIFY A STOP

The State agrees that the stop in this case was investigative in nature and not a mere field inquiry. See State v. Maryland, 167 N.J. 471, 483-84 (2001) (discussing the distinction between a detention and a field inquiry). It contends on appeal, as it did in the motion court, however, that given the nature of the "hectic" crime scene and the information received, i.e., the totality of the circumstances, there was a reasonable and particularized suspicion that defendant had just engaged in criminal activity. We agree. The frisk for weapons was constitutionally permissible in light of the need to protect the safety of the public and the officers.

There is no doubt that an ordinary citizen who was a witness to a crime stands on very different footing than a police informant. State v. Kurland, 130 N.J. Super. 110, 114-15 (App. Div. 1974). A citizen-informer acts to aid police because of his or her "concern for society." Id. at 115. The fact that ...


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