On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0190.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2010
Before Judges Grall and LeWinn.
Defendant was indicted for second-degree possession of a firearm, in violation of N.J.S.A. 2C:39-7(b). Following the denial of his motion to suppress the weapon, defendant entered a guilty plea to the indictment and, on March 2, 2007, was sentenced to a five-year prison term with a five-year parole ineligibility period as mandated by N.J.S.A. 2C:39-7(b)(1). Defendant now appeals from the denial of his motion to suppress.
We briefly summarize the pertinent factual background. The only witness who testified at the motion to suppress hearing was Elizabeth Police Officer Denado DeMarco. He stated that on November 4, 2005, he and two other police officers were patrolling the area of Mravlag Manor, which he described as a "high crime area," in which there had been three shootings in the last "48 hours[,]" and two homicides "in separate areas...." At approximately 7:00 p.m., DeMarco received a radio transmission from Police Detective Graham, conveying information from "residents of [Mravlag] Manor... stating that there were three to four heavily armed black males who were walking in the courtyard wearing ski caps or possibly wave caps and were possibly there for retaliation of a homicide that had happened... the night before." DeMarco had received "descriptions of the shootings" which referred to "three or four black males."
DeMarco also received a radio transmission from Police Officer Morse who had observed "four black males in a black Oldsmobile in the area of [Mravlag] Manor... with a temporary plate in the rear window of the car." Morse further relayed the information that the Oldsmobile "sped off in an... unknown location as if the vehicle didn't want to deal with the police."
At approximately 11:00 p.m., DeMarco came upon the Oldsmobile parked on a street; it contained three passengers.
DeMarco made a U-turn, approached the vehicle, saw the temporary sticker, and decided to investigate "to see if they fit the description [that]... had [been] given earlier that evening."
The vehicle was parked on Carteret Street, which DeMarco described as "go[ing] around the perimeter of one side of [Mravlag] Manor."
As DeMarco made the U-turn, he "observed the three occupants... exiting the vehicle from both sides." He testified that "two of the occupants exited the passenger side, one... exited the driver's side. The two who exited the passenger side were in a hurry to get away from the vehicle, they left the door open and continued down Carteret Street."
DeMarco stated that although he was in an unmarked vehicle, it was "a Chevy Caprice, [and] it might as well have said Elizabeth Police on it." Therefore, he believed the three individuals were aware of a "police presence...." Two of the individuals ran down the street and were pursued by the other officers. DeMarco pursued and detained the third individual, later identified as Ferdinand Irizarry. When Irizarry made a gesture towards the waistband of his pants, DeMarco handcuffed him and "patted him down,... [and] recognized the feel of a butt of a gun... protruding from his waistband. [He] removed the handgun."
As the other two police officers were returning with the two remaining occupants of the vehicle, who were in handcuffs, "people were coming from the courtyards of [Mravlag] Manor... towards the street where [they] were." Because the original radio transmission had described a vehicle containing four males, DeMarco thought there was "a fourth suspect at large, possibly with another set of keys, [who] had access to the vehicle and may have ...