May 27, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BENJAMIN MCQUEEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-05-0577.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 13, 2010
Before Judges Carchman and Ashrafi.
Following an unsuccessful motion to suppress and a jury trial, defendant Benjamin McQueen was convicted of second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7b.
The trial judge sentenced defendant to five years in state prison with a five-year period of parole ineligibility.*fn1
Defendant appeals from the denial of the motion to suppress. We affirm.
These are the relevant facts adduced at the hearing on the motion to suppress. On September 28, 2005, Sheriff's Officer Shane Corderoni received a call of "shots fired" on the 600 block of West State Street in Trenton. The officer, accompanied by other officers, proceeded to the scene. All of the officers were either displaying their badges or wearing paraphernalia clearly identifying them as law enforcement officers.
There were numerous bystanders in the area and the officers were directed to an area of Hermitage Avenue, an abutting street, as the location where the shots were fired. Officer Corderoni, accompanied by two other officers, proceeded to that location when he observed an individual, later identified as defendant, walking quickly with his hands along his sides. As defendant noticed the officers, he quickened his pace, turned his shoulder and concealed his right side and hand from the officers' view. The officers exited their vehicle and approached defendant. Defendant turned to face the officer and placed his hand into his right-front pocket. As he did, the officer became concerned for his safety as this was a high crime area known for narcotics trade, gang activity and violent crime.
At least three times, the officer requested defendant to remove his hand from his pocket. Defendant refused to do so, whereupon defendant was placed against a parked vehicle and frisked. The officer felt a hard object in defendant's right-side jacket pocket, which the officer believed to be a handgun. Upon removal, the object was determined to be a loaded semi-automatic nine millimeter Luger pistol with a round loaded in the chamber.
Following a hearing on defendant's motion, Judge Pereksta concluded that the officer's testimony was both uncontroversial and credible. She concluded that the officers had a reasonable, objective suspicion to stop defendant. She observed that the police response was to a "shots-fired" call, which warranted heightened suspicion and caution on the part of the officer. Given defendant's actions, the time of day (approximately 9:00 p.m.), the high-crime area as well as the nature of the police call, the judge found that the totality of the circumstances supported the officer's actions.
Our review of the findings on an appeal from a motion to suppress is limited. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record. . . . [A] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). The judge correctly concluded that the totality of the circumstances must inform any decision as to the lawfulness of the stop. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed. 2d 621, 628, 629 (1981).
We have carefully reviewed the record and conclude that the judge correctly determined that the stop and pat-down were supported by the circumstances, and we affirm for the reasons set forth in Judge Pereksta's thoughtful oral opinion of August 18, 2006. We add the following additional comments.
Defendant relies on our decision in State v. L.F., 316 N.J. Super. 174 (App. Div. 1998), as authority for the invalidity of the search. In L.F., defendant was standing in front of a building in a high-crime area where he was observed by the police. He walked to the rear of the building and placed something in his pocket. The police stopped him and then searched him. In affirming the granting of the motion, we concluded that the "mere act of putting something from one's hand into one's pocket while departing alone signifies nothing by way of reasonable suspicion." Id. at 179. Here, unlike in L.F., the police were responding to a "shots-fired" call, the hour was late, the area was a high-crime area, and defendant was nervous and moving as if to shield something. Most important, defendant refused to show his concealed hands when requested to do so, enhancing the safety concerns of the officer. See State v. Otero, 245 N.J. Super. 83, 93 (App. Div. 1990) (finding evasive conduct on the part of the defendant when the officer asked to see his hands contributed to a reasonable basis for a "stop and frisk" to ensure the officer's safety). The officer's stop and frisk was appropriate under the totality of the circumstances.