On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-05-2181.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010
Before Judges Kestin and Coburn.
Defendant Marquis Smalls appeals from a judgment of conviction entered on a negotiated plea to second degree possession of cocaine with intent to distribute. Defendant pled guilty after losing his motion to suppress the cocaine.
At the conclusion of the motion hearing, and now on appeal, defendant contends that suppression is required under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution. The only question on appeal is whether the trial judge erred in denying the suppression motion.
After reviewing the record and briefs, we are satisfied that defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)2), and we affirm substantially for the reasons expressed by Judge McNeill in his thorough and well-reasoned oral opinion delivered on August 11, 2006. Nevertheless, we add the following comments.
The only evidence at the motion hearing came from New Jersey State Trooper Brian Minkel. The incident occurred on December 30, 2004, in Camden. At about 5:30 p.m., Minkel and his partner were in uniform and patrolling in a marked police car. While at a traffic light, they saw a Chrysler pass in front of them through the intersection. The Chrysler passed within about five to ten feet from the patrol car. It was dusk, and the troopers had a clear and unobstructed view, particularly of the passenger. Neither the driver nor the front seat passenger was wearing a seatbelt. The officers followed the Chrysler a short distance until it stopped at a traffic light.
With one car between them and the target vehicle, the officers could again clearly see that the driver and passenger were not wearing their seatbelts. The passenger got out of the Chrysler and started walking away. Minkel got out of the patrol car and ordered the passenger back into the Chrysler. Minkel's purpose was to get the passenger to return to the Chrysler so that the driver and passenger could be ticketed for driving without a seatbelt. The passenger looked at Minkel but continued to walk in the direction of a nearby store. As Minkel repeatedly ordered the passenger to get back into the Chrysler, the passenger increased his pace, finally running inside the store. Minkel gave chase and the passenger, who turned out to be defendant Smalls, tossed a clear plastic bag onto the ground. Minkel arrested defendant inside the store after a short struggle. Moments later, Minkel found the plastic bag where defendant had thrown it on the floor. The plastic bag contained two large rocks of cocaine.
Defendant's argument is based entirely on the thesis that the troopers did not act in good faith because they could not have determined that he was not wearing a seatbelt. In other words, he properly concedes that his motion lacked merit if Minkel's testimony was credible on this point. Consequently, we will limit our comments to the issue of credibility.
On appeal, we are obliged to uphold the trial court's factual findings so long as those findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). The only question of fact at issue is whether the judge had a sound basis for finding that defendant was not wearing his seatbelt. The trooper's observations were made at close range and on two occasions. According to Minkel it was dusk and he could see easily into the Chrysler on both occasions, which were only moments apart. There was no contrary testimony. Consequently, we perceive no basis for interfering with the judge's credibility findings.
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