November 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHYQUAN SINGLETARY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 08-09-1682 and 07-04-0594.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2010
Before Judges Lisa and Reisner.
Following the trial court's denial of his suppression motion, defendant Shyquan Singletary pled guilty to certain persons not to have weapons, N.J.S.A. 2C:39-7b(1), and a violation of probation. He was sentenced to an aggregate term of five years in prison with a five-year parole bar. He now appeals from the denial of his suppression motion and also contends that there was an inadequate factual basis for his guilty plea on the weapons charge. We reject defendant's appellate arguments and affirm.
These are the most pertinent facts, based on the evidence presented at the suppression hearing. According to Officer Edward Esparra, of the Jersey City Police Department, at about 1:20 a.m. on April 20, 2008, he and his partner, Officer Pierre Anton Yanni, received a report of shots fired at an address on Orient Avenue. The Plain Clothes Unit officers at the scene described the suspect as a "black male with a black hoodie [sweater] fleeing the area."
After driving to the vicinity of Orient Avenue, Esparra and his partner spotted defendant walking quickly down a deserted street a couple of blocks from the shooting scene, in a direction away from the scene, wearing clothes that matched the description of the shooter. According to Esparra, as their patrol car approached him, defendant looked nervous and started walking faster. Esparra shouted to defendant to stop and put his hands on his head. Defendant responded "who me" and then started running away, holding his right rear pocket. The two officers followed defendant in their patrol vehicle. During the pursuit they saw defendant take a silver handgun out of his right rear pocket and throw it over the roof of a garage.
Esperra and his partner apprehended defendant, placed him under arrest, and returned to the vicinity where they had observed him discard the gun. After a half-hour search, Esperra found the handgun in a yard near the garage. Esperra described the weapon as a loaded .25 caliber handgun, with one round in the chamber.
In a detailed oral opinion placed on the record on May 21, 2009, Judge Kracov found Esparra's testimony to be "very credible." Based on the facts described above, Judge Kracov concluded that the police had a reasonably articulable basis to believe that defendant was the armed shooter walking away from the crime scene, and therefore had valid grounds to attempt a Terry*fn1 stop:
[A]ll of these facts taken together . . . under an objective standard show there was articulable reasonable suspicion that a crime was being committed by the defendant, they had a right to stop him. And under the circumstances since it was a matter involving a weapon and a shooting, they had a right to . . . stop him and ask him to put his hands [up] so they could make a frisk. And then he ran which added to the suspicion they had, including going to his back pocket and running, and then throwing the gun, which was seen, which then ripened into probable cause that he committed a crime.
The judge further found that the police had a right to follow the defendant, and hence they were in a lawful position when they observed defendant abandon the gun by throwing it over a garage. The police then properly recovered the gun from the yard behind the garage.
On this appeal defendant raises the following points for our consideration:
POINT I: THE TRIAL COURT ERRED IN DENYING MR. SINGLETARY'S MOTION TO SUPPRESS THE EVIDENCE SEIZED AS A RESULT OF HIS UNLAWFUL SEIZURE BY POLICE.
POINT II: THE DEFENDANT'S PLEA WAS DEFECTIVE BECAUSE THE COURT FAILED TO ELICIT A SUFFICIENT FACTUAL BASIS (NOT RAISED BELOW).
In his Point I, defendant limits his challenge to the officers' initial attempt to stop him. The law on this issue is well established:
[A]n investigatory stop, sometimes referred to as a Terry [footnote omitted] stop, is valid "if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." The suspicion need not rise to the "probable cause necessary to justify an arrest." [State v. Pineiro, 181 N.J. 13, 20 (2004) (citations omitted).] See also State v. Stovall, 170 N.J. 346, 356-57 (2002). In reviewing the trial judge's decision of a suppression motion, we defer to the judge's determination so long as it is supported by substantial credible evidence. State v. Elders, 192 N.J. 224, 243-44 (2007).
Defendant contends that at the point where Officer Esparra told him to stop and put his hands on his head, Esparra did not have a reasonable articulable suspicion that defendant was engaged in criminal activity. We disagree. A few minutes after receiving the report of a shooting, the police observed defendant, who fit the description of the shooter, walking rapidly down a deserted street in a direction away from the crime scene. He looked nervous and sped up as the police approached. Under those circumstances, the police had a reasonable basis to suspect that defendant was the shooter. See State v. Todd, 355 N.J. Super. 132, 138 (App. Div. 2002). Since defendant might still be armed, Esparra was justified in ordering defendant to stop and to place his hands on his head, for the officers' protection. State v. Roach, 172 N.J. 19, 27-28 (2002). We therefore find no basis to disturb Judge Kracov's decision to deny the suppression motion.
Defendant next contends that the factual basis for his guilty plea was inadequate to establish a violation of N.J.S.A. 2C:39-7b(1), which prohibits persons previously convicted of serious drug offenses or other listed felonies from possessing firearms. The statute provides that any such person "who purchases, owns, possesses or controls a firearm is guilty of a crime of the second degree." Ibid. (emphasis added).
Arguably defendant's claim that his plea was legally insufficient is not ripe for our consideration, because he did not file a motion to withdraw his plea, pursuant to Rule 3:21-1. However, even considering the merits, we reject defendant's argument. The statute does not require the State to prove that the firearm was operable. See State v. Gantt, 101 N.J. 573, 589-90 (1986).
Defendant admitted that he possessed the handgun that the police recovered from the scene. Further, in his plea colloquy, he agreed that Officer Esparra's description of the gun at the suppression hearing was correct. The plea transcript leaves no doubt that defendant admitted to having a prior conviction for possession of a controlled dangerous substance with intent to distribute in a school zone, and subsequently being in possession of a .25 caliber handgun. That was sufficient to establish a violation of N.J.S.A. 2C:39-7b(1). See R. 3:9-2; State v. Sainz, 107 N.J. 283, 292-93 (1987); State v. Smullen, 118 N.J. 408, 415 (1990).
Finally, while we affirm the conviction, we note two typographical errors in the July 31, 2009 judgment of conviction (JOC), i.e., giving the wrong statutory citation for the certain persons conviction (N.J.S.A. 2C:39-5b instead of N.J.S.A. 2C:39-7b) and erroneously listing it as a third-degree offense instead of a second-degree offense. We order that the JOC be amended to reflect the correct statute (N.J.S.A. 2C:39-7b) and degree of the offense (second degree).