On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 04-07-1477 and 05-03-0423.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted - April 29, 2009
Before Judges Lyons and Espinosa.
Defendants Miguel Fernandez and Rafael Baez appeal from their convictions arising from the burglary of a minivan at the Mall at Four in Paramus and the use of a stolen credit card to purchase gas on December 18, 2004.*fn1
Both defendants were acquitted of a third-degree charge of burglary, N.J.S.A. 2C:18-2 (count one), and convicted on charges of fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (count two), and fourth-degree credit card theft, N.J.S.A. 2C:21-6c(1) (count three). In addition, Fernandez was convicted of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21- 6h (count four), and fourth-degree forgery, N.J.S.A. 2C:21-1 (count five).
Baez was sentenced to terms of one-year imprisonment on counts two and three, said terms to run concurrent to each other and to a sentence for violation of probation but consecutive to a sentence for an unrelated matter in Union County. Fernandez was sentenced to concurrent terms of three-years probation on counts two through five. He does not challenge his sentence.
We calendared defendants' separate appeals back to back and consolidated the appeals for the purpose of this opinion. We affirm defendants' convictions and Baez's sentence.
On January 9, 2006, Fernandez received oral Hudson*fn2 warnings and signed a waiver containing those warnings. Nonetheless, he failed to appear for trial on March 14, 2006. His attorney advised the court that she had received a telephone message from him on the day before. According to the message, Fernandez was in the Dominican Republic and unable to return in time for the trial because there were "some custody issues concerning his daughter and an accident." Fernandez's attorney was unable to contact Fernandez to learn when he would return and asked the court for an adjournment of one week. Noting that Fernandez had received Hudson warnings, the trial court denied the adjournment request and proceeded with a suppression hearing that lasted three days, from March 14 to March 16, 2006. On March 16, 2006, Fernandez's counsel advised the court that she had received a call from his wife stating that he was hospitalized in the Dominican Republic but, despite counsel's requests for documentation, none was provided.
The trial began on March 21, 2006, and concluded on March 23, 2006. Fernandez did not appear for any portion of the trial but appeared on May 5, 2006, for sentencing and a motion for a new trial. No documentation was provided to the court to substantiate the representation that he had been in an automobile accident and hospitalized in the Dominican Republic. Instead, at sentencing, he told the court that his presence was required in the Dominican Republic because he was fighting for custody of his daughter, stating, "as every father knows how important children are to their fathers, that one closes his eyes and he goes for it, no matter what is at stake . . . ."
The facts elicited at the suppression hearing can be summarized as follows.
On December 18, 2004, Detective Robert Von Schalscha of the Paramus Police Department was assigned to conduct surveillance at a parking lot at the Mall at Four, on Route 4 in Paramus based on information received from the New York City Police Department. The Mall at Four is relatively small and has a jewelry center in the middle of the mall that has a history of jewelry-related crimes.
Detective Von Schalscha described the information he had received from the "intelligence sergeant" regarding his assignment. The Paramus Police Department has a working relationship with the New York City Police Department Organized Theft Task Force (the "O.T.T.F."). However, he was aware that the O.T.T.F. had developed an intelligence network through their investigations, which "specifically deal with South American gangs." The information received from the O.T.T.F. was that a possible "jewelry crew" was "coming from New York to New Jersey and that they may hit at the Mall at Four." Detective Von Schalscha explained that a "jewelry crew" consisted of two to four people who operated as a professional crew, each with a specific function. He understood the intelligence to mean that the crew was either going to "conduct surveillance of a jeweler, a jewelry center and possibly commit criminal activity, i.e., robbery or a theft of jewelry." Detective Von Schalscha was not provided any information about the race of the suspects.
At about 2 p.m. during this assignment, Detective Von Schalscha observed a gold Acura Legend come across the exit/entrance area of the Mall at Four, travel past the south side of the mall and continue west along the front of the building. Although it was the week before Christmas, the parking lot was not crowded as there were vacancies at the mall. Detective Von Schalscha observed that the Acura was "traveling in a manner very slowly looking around; they did not appear to be looking for a parking space." The Acura continued north around the southwest side of the building, went around the back of the mall and eventually came back out to the south side of the mall. Based upon the information received from the "Intel Division," Detective Von Schalscha found this activity to be suspicious. He explained that the Acura's occupants did not look for a parking space that he could see and they passed one exit on one occasion. As the Acura passed him, he noticed that it had New Hampshire license plates and was occupied by three Hispanic males.
When the Acura exited the parking lot onto Route 4 West, Detective Von Schalscha followed in his unmarked vehicle. The Acura pulled into a gas station next to the mall. Detective Von Schalscha pulled into the McDonald's parking lot next door. Using binoculars, he observed the driver hand the attendant a credit card to pay for gas and later sign a credit receipt. Detective Von Schalscha notified his sergeant that he was following the Acura and requested a marked patrol unit for possible assistance as the Acura proceeded on Route 4.
It was a Saturday afternoon and the traffic on Route 4 was "medium to heavy." Detective Von Schalscha observed the Acura make two to three lane changes without signaling. The Acura was traveling in the center lane as it approached Spring Valley Road and then "abruptly exited" from that lane without signaling. Detective Von Schalscha notified Officer Thomas D'Amato and his Sergeant that the Acura made a U-turn to proceed onto Route 4 East. He continued to follow the vehicle. At his request, Officer D'Amato, who was in a marked vehicle, conducted a motor vehicle stop of the Acura.
As he approached the vehicle with Officer D'Amato, Detective Von Schalscha noticed that everyone in the Acura was moving around. While Officer D'Amato requested the driver's license, registration and insurance card, Detective Von Schalscha observed the rear-seat passenger attempt to place his right foot on top of a wallet. He also saw a black tool protruding from the front passenger seat. Detective Von Schalscha recognized the tool through his experience with auto crime as one used to gain illegal entry to vehicles. Concerned that the tool could be used as a weapon, he asked all the occupants to get out of the car and sit on the curb. Defendants Fernandez and Baez were the driver and front-seat passenger, respectively. The rear-seat passenger was Nelson Rodriguez. Officer D'Amato observed two credit cards on the driver's floorboard that proved to be in the name of Kelly Fletcher. The wallet observed in the rear of the car was removed and found to contain a driver's license for Kelly Fletcher. In addition, the officers retrieved a red diaper bag that contained women's articles, including glasses ...