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State ex rel N.Z.P.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 17, 2009

STATE OF NEW JERSEY IN THE INTEREST OF N.Z.P., A JUVENILE.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FJ-12-2697-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 7, 2009

Before Judges Axelrad and Sapp-Peterson.

Following the denial of his motion to suppress evidence, defendant pled guilty to unlawful possession of marijuana, N.J.S.A. 2C:35-10(a)(4). N.Z.P. entered a plea of guilty to the marijuana charge, preserving his right to appeal the denial of his suppression motion. Although defense counsel asked for "a deferred disposition" in lieu of imposition of final disposition, the court sentenced N.Z.P. to a one-year term of probation with random urine screenings, a six-month deferment of driving privileges, and mandatory fines.

The record before the court disclosed that on March 14, 2008, East Brunswick Police Officers Marino and Zielinski were patrolling in an unmarked vehicle. They observed two males, later determined to be N.Z.P. and Brian Theer, cross the street and enter into a vehicle operated by Michael Hatala. Theer sat in the front seat while N.Z.P. sat in the rear. Officer Marino testified that while not directly observing any hand-to-hand transaction, based upon the movement of the individuals in the vehicle and his training and experience, he believed that the individuals were engaged in a hand-to-hand transaction. He further explained that after one minute, Theer and N.Z.P. exited the vehicle and began walking in the direction from which they had come. He and Officer Zielinski then approached the three individuals and identified themselves.

Officer Zielinski spoke to Mr. Hatala, who was still seated in the vehicle, while Officer Marino spoke to N.Z.P. and Theer. According to Officer Marino, when he initially confronted N.Z.P. and Theer, "they appeared nervous. Both people I was talking to appeared real nervous. They were fidgeting around with their clothing. When I was talking to them[,] they were like avoiding eye contact, not looking at me. Looking all around." He further explained:

[W]hen I initially started talking to them, [N.Z.P.] reached to put his hands in his pockets and I asked him not to. And then he stopped initially but then he kept fidgeting around with his pocket, one particular pocket. And he kept reaching up like he was going to put his hand in his pocket again.

. . . . . . . [O]nce he continued to keep fidgeting with his pocket[,] I could see there was a bulge in it. I patted him down. And I felt a hard rigid object in the pants pocket.

When Officer Marino reached into N.Z.P.'s pocket to retrieve the hard object he felt during the pat-down, he recovered a disposable Bic lighter, but at the same time felt two small plastic bags which contained suspected marijuana.

After hearing arguments on N.Z.P.'s motion to suppress, Judge Jane Cantor denied the motion. She reasoned:

[T]he [o]fficer clearly had the right for a stop and question as he would anyone else walking on the street. It was more than a whim that he would stop these two young boys on the street. He saw this interaction which he said reminded him[,] based on his experience[,] of [a] drug transaction.

And so he and his co-[o]fficer decided to turn around and stop the two juveniles and talk to them on the street. I know he said that they weren't free to leave. But that was his intention as opposed to his action. . . .

. . . His subjective intent was that they shouldn't leave. But there was no testimony of any restraints on these two children on the street. Being allowed to talk to them, then the additional information from their behavior[,] in context to the talking with the

[o]fficers[,] created reasonable articular [sic] suspicion to go to conduct a Terry pat-down.

At that time there was not just initial nervousness[,] but in response to a question, an instruction to keep his hands out of a pocket, a second time returning to the pocket. The first time[,] the [o]fficer didn't go after the child. The second time he did. And at that time he felt something hard in the pocket and it [sic] went in and pulled out a lighter.

But at the time he was pulling out the lighter, he felt what he said were obvious narcotics. The State of New Jersey accepts plain feel. This [o]fficer testified with regard to that. So under that conclusion[,]

I'm going to deny the application to suppress.

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED BY CONTINUING TO ALLOW THE STATE TO ASK LEADING QUESTIONS CONTRARY TO THE JUVENILE'S SIXTH AMENDMENT RIGHTS RESULTING IN PREJUDICE (PARTIALLY RAISED BELOW).

POINT II

THE TRIAL COURT ERRED BY DENYING THE JUVENILE'S MOTION TO SUPPRESS EVIDENCE.

POINT III

THE TRIAL COURT ERRED BY NOT CONSIDERING THE RECOMMENDATIONS TO DEFER THE JUVENILE'S DISPOSITION; THE DISPOSITION WAS EXCESSIVE.

We have carefully considered the points raised in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Cantor in her oral opinion delivered September 22, 2008. We add the following comments.

Police officers can stop and question an individual without probable cause for arrest. Terry v. Ohio, 392 U.S. 1, 26-27, 88 S.Ct. 1868, 1883, 20 L.Ed. 2d 889, 909 (1968). However, such a stop must be justified by a reasonable suspicion suggesting that criminal activity is afoot or about to occur, based upon all of the circumstances which "occurred leading up to the stop[,]" and then making the "decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion. . . ." State v Stovall, 170 N.J. 346, 356-57 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 1661-62, 134 L.Ed. 2d 911, 919 (1996)).

"[A] reviewing court must decide if the officer's observations, in view of the officer's experience and knowledge, taken together with rational inferences drawn from those facts, warrant a limited intrusion upon the individual's freedom." Stovall, supra, 170 N.J. at 361 (quoting State v. Caldwell, 158 N.J. 452, 459 (1999) (internal quotation marks omitted)). In addition, "[d]ue weight must be given . . . to the specific reasonable inferences which an officer is entitled to draw from the facts in light of his or her experience." Stovall, supra, 170 N.J. at 361 (quoting Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed. 2d at 909 (internal brackets omitted)).

Judge Cantor credited Officer Marino's testimony related to his observations of the three males' conduct during the initial stop, N.Z.P.'s particularly fidgety conduct around his pants pocket, the bulge he observed, his concern for his safety resulting in the need to conduct a pat-down, and the subsequent discovery of the plastic baggies containing suspected marijuana as he was removing the hard object from N.Z.P.'s pants pocket. This credibility determination is entitled to our deference. State v. Locurto, 157 N.J. 463, 470-71 (1999). There is no basis upon which to conclude that Officer Marino acted unreasonably in conducting the initial stop, subsequent pat-down and ultimate retrieval of the suspected narcotics.

The remaining arguments raised by defendant in Points I and III are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20091117

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