On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-12-2167.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lyons and Waugh.
Defendant Gerard McCollum appeals his conviction on two counts of burglary with intent to commit an offense, N.J.S.A. 2C:18-2, and two counts of attempted theft by unlawful taking, N.J.S.A. 2C:5-1 and 2C:20-3, as well as the resulting sentence of incarceration for six years with two years of parole disqualification and related fines and penalties. We affirm.
We glean the following facts from the record, including Judge Camille M. Kenny's decision with respect to a motion to suppress brought by McCollum. In the early morning hours of September 7, 2006, the Kearny Police Department received an anonymous call to the effect that two individuals had broken into a brown car on Devon Street near West Hudson Park. The caller was only able to describe one of the individuals - a white male wearing blue jeans and a dark-colored shirt or sweater.
Kearny Police Officers Norat and Bannon were on patrol that night and responded to the designated area on Devon Street. The officers observed pieces of glass on the sidewalk and two vehicles with broken windows, a brown Pontiac and a blue GMC SUV.
The officers saw no one in the immediate area of the burglarized vehicles, which was residential. Once another unit arrived at the scene, Norat and Bannon returned to their patrol car and began to patrol the area. After traveling several blocks, the officers spotted McCollum walking on Woodland Avenue, away from the area of the car burglaries. Norat and Bannon continued to follow McCollum, during which time they observed him briefly disappear near a green Jeep Cherokee and some bushes.
As the officers continued to follow McCollum, he repeatedly looked back at their vehicle. Norat characterized this behavior as "very suspicious." The officers eventually stopped, exited their patrol vehicle, and approached McCollum. They recognized McCollum as someone known to them who had been involved with car burglaries in the past. They also observed that he was sweating "profusely" and appeared to be nervous. He was wearing blue jeans and a dark sweater, an outfit consistent with the information conveyed by the anonymous caller.
The officers approached McCollum and asked him where he was coming from, to which he responded that he was coming from Fluffheads, a local bar. However, Fluffheads was located in the direction toward which McCollum had been walking. McCollum added that he was also checking on an apartment to rent at 28 Kearny Avenue, which was on the other side of the street and in the direction away from which he had been walking. The officers noticed small shards of glass on McCollum's sweater and sneakers.
When their supervisor, Sergeant Ellis, arrived, Norat and Banno pointed out the glass shards, which they suspected were from the broken car windows. They asked McCollum for identification. Norat asked McCollum if he was "carrying anything that [he] should be worried about." In response, McCollum became belligerent, but emptied his pockets to show what he had in them. The officers observed two blue cigarette lighters, a cell phone, a black magnetic cell phone pouch, a pack of Kools cigarettes, and some currency.
Because McCollum became belligerent as he emptied his pockets, Norat handcuffed him as a safety measure. McCollum was released shortly thereafter, apparently because the police did not believe they had sufficient evidence to arrest him. At that time, the Police Department had been unable to trace the anonymous caller or contact the owners of the two vehicles that had been broken into to obtain additional information.
Norat and Bannon returned to their patrol car and continued their investigation. In the area where McCollum had briefly stopped adjacent to the green Jeep Cherokee, they discovered a radar detector and a car radio on the sidewalk. In the interim, the Police Department had succeeded in contacting the owner of one of the cars, who informed them that his car radio and two blue cigarette ...