On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-12-1754.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2010
Before Judges Baxter and Coburn.
After losing his motion to suppress evidence seized by the police in a warrantless search, defendant agreed to plead guilty to third degree possession of marijuana in a school zone with intent to distribute, N.J.S.A. 2C:35-7(Count Three), and third degree possession of a handgun without a permit, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b)(Count Four). In accordance with the plea agreement, defendant received concurrent five year prison terms with the further stipulation on Count Three of parole ineligibility for twenty-seven months.
On appeal, defendant contends that the trial judge erred by denying his motion to suppress and by imposing maximum terms of five years. We disagree and affirm.
At approximately 2:30 a.m. on August 29, 2006, the Perth Amboy police learned that three people had been shot in the area of Parker and Chauncey Streets. Two of victims were taken to "Robert Wood" hospital and the third victim was taken to Perth Amboy Hospital. The lead detective, Carl Graham, went to Perth Amboy Hospital, where he believed he would find the least seriously injured victim. That victim, Lubriel Siaz, had been shot in the foot.
Detective Graham interviewed Siaz in the hospital. Although not entirely forthcoming at first, Siaz quickly told the detective that the shooting was the culmination of an escalating feud between two groups, which he described as the "Puerto Ricans v. Dominicans." The preceding events included vandalism to a vehicle, a chain snatching, and a stabbing. Siaz learned that members of the other group were after him. After he saw a full car of Dominicans drive by with what he thought was a gun, he called his friend David Garcia for help in getting arms.
Garcia called defendant, who had the nickname of "Homicide." Siaz told Graham that he had seen defendant in the streets with a gun and that defendant was "always walking around . . . saying hi to cops even with the gun on his person."
Siaz then described the confrontation between the two groups. He said that the only ones with guns were Garcia and defendant, who were with his group. He said Garcia had a Tech 9, which Graham said has a capacity of about thirty rounds, and defendant had a black colored PPK. Siaz did not know which gun had fired the bullet into his foot, leading Graham to conclude that the wound was the result of "friendly" fire.
Later that morning, Detective Eddie Pardo received a briefing from a supervisor at the Perth Amboy police department. On direct examination, Pardo testified that he was told that defendant was wanted for questioning in connection with the shooting. He and his partner were given a copy of a juvenile justice commission flyer, which he described as "reading wanted on it, for ID purposes." The flyer had defendant's photograph and address. He said his orders were "to try to get him into headquarters for questioning on the shooting." And, according to Pardo, "[p]robably most importantly was that he was known to carry a 9 millimeter handgun."
At about 6:30 p.m., Pardo and his partner, neither in uniform, went to defendant's address in an unmarked police car. From their car, they saw defendant come out from his house and stand on the top stair. Defendant then "looked up and down the street, began adjusting his waistband, fixing himself, began walking down the -- stairs." He "completed the first set of stairs, he must have looked up and down the street two, three times. He looked nervous, kept bringing his hands towards his waistband." When he got to the sidewalk, "he again looked up and down the street, then began to cross the street," walking toward the unmarked police car.
Pardo said that based on training and experience, the information given at the briefing, and defendant's conduct while entering the street, he believed that defendant "had a weapon." Consequently, Pardo and his partner quickly approached defendant with their badges around their necks. They each grabbed one of defendant's arms and Pardo asked defendant for his name. Defendant responded "Julio." Pardo testified that "I put my hand where I believed the weapon to be, I felt the butt of the weapon, lifted his shirt, ...