On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-11-1045.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
After the trial court denied his motion to suppress evidence, defendant Tyshan Murray pled guilty, pursuant to a plea agreement, to third degree possession of a weapon, N.J.S.A. 2C:39-5 (count one); fourth degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count two); and third degree resisting arrest, N.J.S.A. 2C:29-2 (count three). The trial judge sentenced him to a term of four years on count one, eighteen months on count two and four years on count three. The sentences ran concurrently with each other and concurrently with defendant's sentences on two other indictments. Defendant appeals from the judgment of conviction dated January 29, 2008, and contends that "[t]he trial court erred when it denied the defendant's motion to suppress the evidence seized in this matter."
At the evidentiary hearing on defendant's motion to suppress, police officer Franklin Idrovo testified that near midnight on the evening of July 23, 2006, he and another officer were on duty and patrolling in an unmarked car, when they observed a parked car, not running, with no lights on, and two people inside. The officers pulled up behind the vehicle and observed that the vehicle did not have a license plate or temporary registration tag. As a result, they asked the occupants for the vehicle's registration and insurance papers. When the occupants could not produce those documents, the officers checked the vehicle's identification number which indicated that the vehicle was unregistered. Faced with these circumstances, the officers asked the two men to exit the vehicle. When defendant exited the vehicle, Idrovo saw a gun in defendant's waistband. A struggle ensued between defendant, Idrovo, and a backup officer. Idrovo was able to secure the gun and arrested defendant.
Defendant presented evidence that the vehicle was registered to defendant's girlfriend and that he had purchased the vehicle for her eight to ten days before this incident. Defendant testified that the vehicle had a temporary registration tag in the back window behind the driver's seat when it left the lot where it was purchased and that the temporary registration tag was still in that window when the officers approached the vehicle. He also contended that he had paperwork for the vehicle but the officers never asked for it. He further testified that "[a]s I was on the ground outside of the police vehicle and they were beating on me, I managed to look up, and I think the other cop . . . that was on the driver's side, reached into the back, grabbed [the temporary registration tag] and - and balled it, and said it's fake."
Defendant presented the testimony of his friend who had been the driver of the vehicle and who was sitting in the vehicle with defendant that evening. Defendant's friend testified that he saw the temporary registration tag in the window of the vehicle when he was driving it that evening. He also said that the officers did not ask for any paperwork.
In his decision, the trial judge acknowledged that defendant had purchased the vehicle and had been given a temporary registration tag for it. However, the trial judge found that the temporary registration tag was not displayed on the vehicle at the time of this incident. He concluded that the officers' stop was legal because no temporary registration tag was displayed on the vehicle. The trial judge determined that once the occupants could produce no papers for the vehicle and the vehicle's identification number came up as unregistered, circumstances suggesting that the vehicle may be stolen, the officers were justified in asking the occupants to exit the vehicle. Once they did that, defendant's weapon was in plain view, and the trial judge concluded that the seizure of that weapon was therefore justified.
On appeal, defendant does not dispute the trial judge's application of the law. Rather defendant contends that the trial judge's factual finding that no temporary registration tag was visible on the vehicle is not supported by sufficient credible evidence in the record. The defense argues that, based on these conflicting proofs between Idrovo and the defense witnesses, the State should have produced the other police officer as a witness.
When reviewing the trial judge decision on a motion to suppress, we are bound by the factual findings of the trial judge provided "those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). In particular, we defer to the credibility findings of the trial judge because the trial judge has had the opportunity to observe "the character and demeanor of the witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). We will not disturb a trial judge's factual findings unless "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
In this case, the trial judge made specific credibility findings. He found the testifying police officer to be a credible witness. He did not believe the testimony of defendant and his friend, finding that they had a reason to lie and that they had prior convictions which he considered when weighing their credibility. We defer to the trial judge's findings on credibility because he had the opportunity to observe the witnesses and hear their testimony. State v. Locurto, supra, 157 N.J. at 474. The State had no obligation to call the other police officer as a witness. The testimony of the testifying police officer, whom the trial judge found to be credible, stating that he did not see a license plate or temporary registration tag on the vehicle, provided a sufficient factual basis for the trial judge to conclude that the temporary registration tag was not visible.