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State v. Shaw

February 11, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NATHAN N. SHAW, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 04-08-1862 and 05-04-00886.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 17, 2008

Before Judges Sabatino and Simonelli.

On August 18, 2004, a grand jury indicted defendant Nathan Shaw for fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b (count one); third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (count two); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3) (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count four) (the first indictment). Defendant was also charged with three disorderly person offenses.

On April 13, 2005, a grand jury indicted defendant for third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10a(1) (the second indictment). Defendant was also charged with a disorderly person offense.

Judge Neafsey denied defendant's motion to suppress evidence relating to the first indictment. Defendant then entered a negotiated guilty plea to count three of the first indictment and to count one of the second indictment. The State agreed to dismiss all remaining charges and to waive its right to seek an extended-term sentence. The State also agreed to recommend an eight-year term of imprisonment with a forty-five month period of parole ineligibility on count three of the first indictment pursuant to the Brimage*fn1 guidelines, and to a concurrent five-year term of imprisonment on count one of the second indictment.

Judge Neafsey sentenced defendant to a seven-year, six-month term of imprisonment with a forty-five month period of parole ineligibility on count three of the first indictment and to a concurrent four-year term of imprisonment on count one of the second indictment. The judge also imposed the appropriate assessments, penalties and fees and suspended defendant's driver's license for six months.

On appeal, defendant contends that the judge's factual findings on the motion to suppress were clearly mistaken because a police videotape of the stop contradicted a police officer's testimony about facts, which led the officer to infer that defendant was armed and dangerous. We reject this contention and affirm.

The following facts are summarized from the record. On March 23, 2004, police officer Paul Seidle of the Neptune Township Police Department, who had extensive experience in narcotics investigations, was on duty, in uniform and in a marked patrol vehicle working the 11 p.m. to 7 a.m. shift. He had received information regarding drug activity in the area of the Shore Lanes Bowling Alley, the Centerfold Go-Go-Bar, and the Crystal Inn Motel, an area well-known for narcotics activity.

At approximately 12:30 p.m., Seidle entered the bar's parking lot and circled it, looking for narcotics activity. When the officer looked over to the inn, he noticed an individual, later identified as defendant, peering at him from behind the far left corner of the building. As Seidle continued toward the inn, defendant leaned out further, maintaining eye contact with the officer and following his travel through the parking lot. Seidle observed defendant get into a car and drive away with a passenger in the front seat. The officer followed defendant and observed a flat right front tire on defendant's car. A check of the car's registration revealed that it was owned by Matthew C. Colvin.

Seidle continued following defendant and observed him make a left turn without signaling. Seidle activated his lights, which automatically activated video and recording equipment inside the patrol car.*fn2 Defendant pulled over and stopped. As Seidle approached defendant's car, he saw cigar tobacco on the driver's side floor, indicating marijuana use, and smelled burnt marijuana.

Seidle also saw a white mask and latex glove in the back seat. This was "a big concern" for the officer because home invasion robberies were common in the area, the items he saw were "typical [] tools used by people who commit robberies," and the items indicated that defendant "may be a robber, may be someone who is engaged in criminal activity that involves robberies[.]" The officer also observed that defendant and the passenger were wearing clothing typically worn by individuals who commit robberies in order to conceal their identities and to hide weapons. At this point, Seidle suspected that defendant might have a weapon.

Seidle then asked defendant for his credentials. Defendant responded that he did not have his driver's license in his possession.*fn3 Defendant gave Seidle a false name, Dion Shaw, and a false birth date. Having already checked the car's registration, Seidle knew that defendant was not the owner. Also, defendant ...


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