July 7, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WAFI R. LONG, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-10-0939 and 06-08-0745.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2010
Before Judges Skillman and Fuentes.
Defendant Wafi R. Long pled guilty to first degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1), and first degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1), as amended from the charge of murder, N.J.S.A. 2C:11-3. At the time of sentencing, defendant, who by then was represented by a different attorney, moved to withdraw his guilty plea arguing that, at the time he pled guilty, he believed he would be sentenced to a term not to exceed five years.
After hearing argument from counsel, the court denied defendant's motion and the matter proceeded to sentencing. Pursuant to the plea agreement, the court sentenced defendant to an aggregate term of nineteen years, with an eighty-five percent period of parole ineligibility, and a five-year period of parole supervision under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed the mandatory fines and penalties upon him.
Defendant now appeals raising the following arguments:
THE STOP AND SUBSEQUENT SEARCH OF DEFENDANT WAS NOT SUPPORTED BY A "REASONABLE AND ARTICULABLE" SUSPICION OF CRIMINAL ACTIVITY, NO LESS PROBABLE CAUSE. THEREFORE, THE WARRANTLESS SEARCH OF DEFENDANT'S PERSON WAS NOT JUSTIFIED. U.S. CONST. AMEND. IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7.
SHOULD THIS COURT REVERSE DEFENDANT'S CONVICTION FOR ATTEMPTED MURDER ON INDICTMENT NO. 06-08-745, THEN THE GUILTY PLEA TO AGGRAVATED MANSLAUGHTER ON INDICTMENT NO. 06-10-939 MUST ALSO BE VACATED.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEAS PRIOR TO SENTENCING.
We affirm. With respect to defendant's argument challenging the trial court's denial of his motion to suppress, the State has adopted defendant's account of the facts that will inform our discussion of this issue.
At approximately 6:00 p.m. on December 29, 2005, Scotch Plains Police Officer Albert Sellinger received information from an informant who he had arrested the day before and charged with possession of illicit narcotics. This was the first time this informant had provided any information to Sellinger. In fact, to Sellinger's knowledge, this informant had never before provided information to any other officer in the Scotch Plains Police Department that led to an arrest or seizure of illicit drugs.
According to Sellinger, the informant approached his police car and claimed that Sellinger had made a mistake in arresting him because he was "not [that] type of person." By contrast, the informant told Sellinger that "he had information related to a particular individual [who the informant had] purchased narcotics from in the past [and who] would be delivering narcotics to the Sunoco service station in our jurisdiction on the 29th [that same day]." This informant also told Sellinger that a person named Wafi Long would be traveling as the passenger in a tan four-door vehicle that a woman would be driving; Long was to deliver thirteen individually wrapped crack cocaine rocks to the Sunoco gas station between 9:00 p.m. and midnight. Sellinger testified that the informant also notified him that Long would most likely be carrying a black handgun. Sellinger knew Long from an incident that had occurred six or seven months earlier, whereby Sellinger, although not the arresting officer, participated in the effort that led to Long's arrest. Thus, Sellinger was able to identify Long "by his face."
In response to this information, Sellinger, Sergeant Murphy, and Officer Fiore established a surveillance operation approximately seventy-five yards from the entrance of the Sunoco service station. At a few minutes past midnight, Fiore radioed to Murphy and Sellinger to inform them that a car, matching the description given by the informant, was driving out of the gas station's parking lot and onto Willow Avenue. As the car passed by, Sellinger observed that Long was the person seated in the car's passenger side. According to Sellinger, a combination of the street lights and his own car's high beam lights provided sufficient illumination for him to see Long. Sellinger also noted that the car's license plate number was one digit different from the information provided to him.
At this point, Sellinger and Murphy made U-turns in their respective cars and began following defendant's car. After traveling about two blocks, Murphy activated his police car's overhead lights and directed Long's car to stop. Once the vehicle was pulled over, Sellinger approached the passenger side while Murphy walked up to the driver, later identified as defendant's girlfriend, Daniella Martinez. While Murphy asked Martinez to step out of the car, Sellinger observed defendant sitting in the passenger side with the window open; Sellinger told defendant to keep his hands where Sellinger could see them.
According to Sellinger, defendant ignored his command to keep his hands visible and reached into the front pocket of his jacket. Sellinger immediately ordered him to take his hands out of his pocket and defendant again failed to comply. Sellinger then ordered defendant to exit the car, which, according to Sellinger, defendant did but "was hesitant" Once defendant was outside the car, Sellinger conducted a pat down search to determine whether defendant was carrying any weapons. Although he did not find any weapons, Sellinger saw a white tissue protruding from one of defendant's pockets. When he placed his hand on defendant's pocket, Sellinger immediately detected what he described as "crack cocaine." When Sellinger removed the white tissue from defendant's pocket, a single rock of cocaine fell out.
Sellinger attempted to arrest defendant, intending to charge him with possession of cocaine. Defendant did not cooperate; he refused to place his hands behind his back, let his body slide down the length of the car, and eventually ran away. After a brief foot pursuit, Sellinger, Murphy, and another officer apprehended, subdued, and handcuffed defendant. A more thorough search of defendant's person revealed that he was carrying a loaded handgun.
Defendant's girlfriend Daniella Martinez also testified at the suppression hearing. According to Martinez, the police pulled her and defendant over for no justifiable reason. After being removed from her car and questioned for approximately twenty minutes, the police released Martinez without further incident.
Against this record, the trial court upheld both the validity of the initial motor vehicle stop and the subsequent police conduct that led to defendant's arrest. While in police custody on the charges connected to this incident, defendant confessed to the attempted murder and homicide that led to the aggravated manslaughter conviction.
We review the trial court's decision to deny a motion to suppress mindful that credibility findings are binding on us unless they are not supported by the record. State v. Locurto, 157 N.J. 463, 471 (1999). Here, the motion judge found the police officer's account of events credible. We are bound by such a finding because it is well supported by the record. Ibid.
We also agree with the motion judge that the officers had a specific articulable suspicion that defendant was involved in criminal activity. State v. Rodriguez, 172 N.J. 117, 126-27 (2002). Where, as here, there is no evidence of veracity based upon the informant's past performance, the reliability of the information provided by the informant may be established by the police officer's independent corroboration. State v. Smith, 155 N.J. 83, 95-96, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1998). Here, because the information provided by the informant was corroborated by the arresting officer, there was a proper basis to stop defendant's car. State v. Birkenmeier, 185 N.J. 552, 561-62 (2006).
Because the car in which defendant was a passenger was lawfully stopped by the police, defendant's conduct thereafter properly led to his arrest. Once defendant failed to comply with Sellinger's orders to keep his hands visible, the officer had a valid reason to order defendant to step out of the car and to conduct a pat down search. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed. 2d 889, 909 (1968); State v. Thomas, 110 N.J. 673, 678-79 (1988).
Defendant's argument challenging the trial court's denial of his motion to vacate his guilty plea is equally without merit. As a matter of credibility, the trial court rejected defendant's claim that he was unaware that the plea agreement exposed him to a nineteen-year term of incarceration. Defendant has also not asserted a colorable claim of innocence. Under these circumstances, the trial court correctly denied defendant's application to withdraw his guilty plea. State v. Slater, 198 N.J. 145, 150 (2009).
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