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State v. Byard

October 5, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD BYARD, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-12-2708.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2009

Before Judges Miniman and Waugh.

Defendant Donald Byard appeals his conviction, after a guilty plea, for violation of N.J.S.A. 2C:39-7, which prohibits certain persons from possessing weapons. We affirm.

I.

The following facts were developed at the hearing on Byard's motion to suppress evidence, held in April and May 2006, and in the papers submitted in connection with his motion to suppress the statement given to the police following his arrest.

A.

On November 1, 2005, Atlantic City Police Officer Michael Ruzzo received information from a confidential informant that a man living at a specific Westminster Place address had a large amount of cocaine and guns in the house. He was also informed that the individual drove a green Taurus vehicle to make drug deliveries. Ruzzo went to the Westminster Place location, where he saw a green Taurus parked in front of the house. He checked the license plate of the vehicle and learned that the car was registered to Byard. Ruzzo also checked Byard's criminal history and learned that Byard's physical description matched the description given to him by the confidential informant.

After consulting with his supervisor, Ruzzo returned to Westminster Place and began a "fixed surveillance" of the house from across the street. He saw Byard leave the house shortly after 10:00 p.m. Ruzzo observed Byard drinking from a bottle of Corona beer as he walked to the green Taurus. He placed the beer bottle on top of the car and engaged in a conversation with someone who was driving past the house. Byard then entered the Taurus and drove west on Sewell Avenue toward Kentucky Avenue. Ruzzo notified the assisting police officers in the area of his observations, including those with respect to the bottle of beer.

Police Officer William Warner understood that the subject of the investigation was supposed to be in possession of a handgun and drugs and driving a green Taurus. After Warner heard Ruzzo's report that Byard was driving a green Taurus, Warner spotted the vehicle and began to follow it. Warner observed the driver make a head movement as if he were taking a sip from something. Warner also observed the Taurus "roll[] through a stop sign." He activated his police lights and effected a motor vehicle stop.

Warner parked his police car behind the Taurus, exited, and approached the vehicle. He illuminated the inside of the car with his flashlight and saw a bottle of Corona beer on the floor by the driver's feet. Warner testified that he detected the "strong odor" of an alcoholic beverage coming from inside the car. When asked for identification, Byard gave Warner an expired insurance card with his other driving credentials.

Because he was aware of the information that Byard might be armed, Warner ordered Byard to get out of the Taurus and walk to the rear of the car. Warner noticed that Byard began to sweat profusely. Warner stated that when asked why he was sweating, Byard responded: "I got a pistol on me." There was a loaded 9-millimeter handgun under Byard's waistband. Byard was arrested and also issued motor vehicle summonses for having an open container of alcohol in the car, having an expired insurance card, and failing to stop at a stop sign.

According to Byard, he was staying at this girlfriend's house on Westminster Place. He left the house and drove to a house on Kentucky Avenue. While there, he was given a bottle of Corona beer. Byard testified that he noticed Ruzzo drive past the house in a police car. He acknowledged that he walked back to his car with the bottle of beer. He testified that, when he ...


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