February 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JULIO HENRIQUEZ, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, removed the weapon, then placed Mr. Henriquez under arrest." A further search of defendant's body revealed four plastic bags of marijuana.
On cross-examination, Pardo conceded that he may have told the grand jury that he was trying to arrest defendant on a warrant. He added that he guessed that the flyer "led me to believe that there was a warrant." At another point he said "I probably believed that this wanted flyer was a warrant."
The defendant consented to a search of his house and later made incriminatory admissions. But these matters need not be discussed because defendant concedes that their validity depends solely on whether the seizure of the handgun was legal.
We reject defendant's arguments regarding his motion to suppress substantially for the reasons expressed by Judge DeVesa in his oral opinion delivered at the conclusion of the motion on April 7, 2008. Nevertheless, we add the following comments.
First, we are satisfied that the officers were entitled to place defendant under arrest before they discovered the handgun in his waist. As the Court observed in State v. Henry, 133 N.J. 104, 111 (1993):
It does not follow, however, that an otherwise legal warrantless arrest becomes illegal because a warrant could have been secured. "[I]f the arrest without a warrant is lawful the search and seizure are not invalidated solely because the officers had adequate time to procure a search or arrest warrant. [Citations omitted.]
In other words, at least when the arrest is in the streets, "[i]t is not a constitutional imperative for police officers to secure arrest warrants when practicable as long as the arrest is supported by probable cause." Ibid.
Here, the arrest was clearly supported by probable cause. Before the arrest, the police knew that three people had been short earlier in the day, and that one of them, Siaz, saw defendant with a gun at the scene of the shooting. Indeed, he knew defendant and had specifically solicited his armed aid to confront the other group. Siaz was not, as defendant suggests, a mere informant, and he certainly was not an anonymous informant. Rather, he was a victim who in this context is best described as an ordinary citizen. "There is an assumption grounded in common experience that such a person is motivated by factors that are consistent with law enforcement goals." State v. Davis, 104 N.J. 490, 506 (1986). "Consequently, 'an individual of this kind may be regarded as trustworthy and information imparted by him to a policeman concerning a criminal event would not especially entail further exploration or verification of his personal credibility or reliability before appropriate police action is taken.'" Ibid. Furthermore, Siaz also informed the police that he had seen defendant before carrying a gun in the streets, which was defendant's habit.
Given those circumstances, further confirmed by defendant's conduct on leaving his house, the police had probable cause to arrest him both for the earlier shooting and for possession of a handgun that evening.
Alternatively, the police conduct accorded with the principles established by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). Unquestionably, the police were in possession of specific and articulable facts warranting a stop of defendant. State v. Thomas, 110 N.J. 673, 678 (1988). In addition to the information in the flyer, they knew of the shooting and had a victim's identification of defendant as someone present at the shootings with a handgun. The victim described the handgun with specificity and informed the police that defendant ordinarily carried a handgun. Surely, defendant's nickname, "Homicide," provided an additional reason for the exercise of caution. And defendant's conduct just before being stopped further buttressed the opinion that he was armed. Thus, there is no doubt that the police had "objective manifestation that the suspect was or is involved in criminal activity." Id. at 678. Also, "[c]courts regularly approve of protective searches based solely on the suspicion that the suspect was involved in a violent crime." Id. at 680 (citations omitted). Thus, given the circumstances of this case, we are also satisfied that the search was warranted even if the police did not have probable cause to arrest before seizing the handgun.
With one exception, defendant's arguments with respect to his sentence are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The exception is the judge's finding that aggravating factor 11 was present. The State concedes it was not because defendant had to be incarcerated and thus the judge was not considering a non-custodial term as against a state prison sentence. See State v. Dalziel, 183 N.J. 494, 503 (2005). But that error does not mandate a remand since we are certain that the absence of this factor should not and would not result in a lowering of the maximum term imposed. Id. at 506.
© 1992-2010 VersusLaw Inc.