April 2, 2009
STATE OF NEW JERSEY IN THE INTEREST OF V.B., JUVENILE-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-182-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 17, 2009
Before Judges Graves and Grall.
Following denial of his motion to suppress evidence and pursuant to an agreement with the State, V.B. acknowledged conduct that would constitute possession of a handgun and robbery if he were an adult. The charges were based on two separate incidents - possession of a handgun on July 6, 2007 and a robbery on June 25, 2003. V.B. entered the plea in return for the State's agreement to recommend placement in a residential program or confinement at Jamesburg for a period of no more than one year. V.B. appeals and contends that the trial court erred in denying his motion to suppress the handgun he possessed on July 6, 2007.
Jersey City has a curfew ordinance that applies to persons seventeen years of age and younger after 10:30 p.m. At approximately 10:48 p.m. on July 6, 2007, an officer of the Jersey City Police Department approached a group of young men to inquire about their age. V.B. and others acknowledged that they were under the age of eighteen. The officer directed them to step toward the police car. As V.B. complied, he reached for his back pocket. Despite the officer's contrary direction, V.B. reached for his back pocket a second time. Out of concern for his safety and that of his partner, the officer conducted a pat- down search during which he felt a bulge in V.B.'s pocket. He lifted V.B.'s shirt, saw a gun and removed it. V.B. raises two issues on appeal:
I. THE EVIDENCE SHOULD BE SUPPRESSED AS "FRUIT OF THE POISONOUS TREE" BECAUSE IT WAS OBTAINED AS A DIRECT RESULT OF AN UNLAWFUL TERRY FRISK OF V.B., UNSUPPORTED BY REASONABLE SUSPICION THAT V.B. WAS ARMED AND DANGEROUS.
II. THE EVIDENCE AT ISSUE SHOULD HAVE BEEN SUPPRESSED AS THE RESULT OF AN UNLAWFUL SEARCH AND SEIZURE BECAUSE THE OFFICERS DID NOT IMMEDIATELY IDENTIFY THE BULGE THEY FELT IN V.B.'s POCKET AS A WEAPON. (Not raised below).
The arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons stated by Judge Schultz in his oral decision of September 14, 2007.
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