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State v. Munoz

December 18, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DENNIS J. MUNOZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 06-03-532 and 07-04-828.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 18, 2008

Before Judges Fuentes and Gilroy.

An Atlantic County Grand Jury charged defendant Dennis J. Munoz under Indictment No. 07-04-828 with escape and other related offenses, including the offense of possession of a weapon (a handgun) by a convicted person, N.J.S.A. 2C:39-7 (Count Seven). On June 29, 2007, the trial court denied defendant's motion seeking to suppress evidence. Pursuant to a negotiated plea on October 16, 2007, defendant pled guilty to the charge of possession of a weapon by a convicted person and to Count Forty-Six of an earlier unrelated indictment, No. 06-03-532, charging him with third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). On February 1, 2008, the trial court sentenced defendant on Count Seven of Indictment No. 07-04-828 to a sentence of eight years of imprisonment with a five-year term of parole ineligibility and to a flat concurrent three-year term of imprisonment on Count Forty-Six of Indictment No. 06-03-532. The trial court also imposed all appropriate fines and penalties.

On appeal, defendant only challenges the denial of his motion to suppress evidence. Defendant argues:

POINT I. THE OFFICER'S COMPULSION OF DEFENDANT TO PRODUCE IDENTIFICATION WAS UNLAWFUL.

POINT II. THE GUN WAS NOT ABANDONED [PROPERTY] SINCE IT WAS PLACED WHERE IT WAS RECOVERED AS A PRODUCT OF UNLAWFUL CONDUCT BY THE OFFICER.

We affirm.

We briefly state the salient facts as adduced from the transcript of the suppression hearing. Michael J. Massey is employed by the New Jersey Division of Fish and Wildlife as a law enforcement officer. Part of his duties include enforcing fish and wildlife regulations, including those prohibiting littering and dumping of trash. On February 16, 2007, while on patrol in Egg Harbor City, Massey drove into a secluded, wooded area that surrounded an abandoned camp owned by the Catholic Diocese. Unoccupied buildings are located within the camp area. On entering the site, Massey observed a sports utility vehicle parked in front of one of the buildings. Because he did not see anyone in the immediate area, Massey parked his vehicle approximately thirty yards away from the building.

While Massey was in his vehicle, he observed defendant walk out from behind the building, wearing a jacket that extended below his waist. After walking four or five steps from the building, defendant looked toward Massey and stopped, pulling down on the right front of his jacket. Appearing "shocked" and "very surprised," defendant looked around and walked backward toward the building. Massey became concerned not only because he was not sure whether defendant was with another person, but also because of defendant's "facial expression," "body language" and defendant's actions of pulling on the right front of his jacket.

Massey exited his vehicle and walked toward defendant, stopping approximately ten yards in front of him. Massey asked defendant to approach him for "a second" so that he could speak with defendant. Defendant complied, and the two engaged in a two or three minute conversation with defendant explaining why he was on private property. During the conversation, Massey asked defendant if he had identification. Defendant stated that he did, but that it was in his car. The two walked to defendant's car, where defendant opened the door, sat in the car, retrieved his registration and insurance card from the glove compartment and handed them to Massey. Massey then inquired whether defendant possessed a driver's license. Defendant told Massey that he did, and while seated, reached behind him, retrieved his wallet, and handed his license to Massey.

During the time defendant produced his driver's license, Massey "noticed that his jacket had bulged out down where he was sitting. And it looked like something was underneath there." On noticing the bulge, Massey became concerned that defendant had something hidden underneath his jacket. After observing defendant again pulling down on the right front of his jacket, Massey asked defendant whether he had anything underneath his jacket, and defendant responded that he had a knife.

Massey, while pulling his weapon half out of his holster, requested that defendant step out of the car. Massey started to conduct a pat down search of defendant and detected "a very hard object that felt like a knife attached to his [waistband]." As Massey felt the knife, defendant moved away from him, causing the jacket to "[come] open." Massey then "saw the butt of a handgun sticking out of his back pocket." On making that observation, Massey pulled his weapon and instructed defendant to get on the ground. Contrary to the officer's instruction, defendant backed away from Massey and darted ...


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