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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...