December 13, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FREDERICK L. PARKER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-12-2888.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010
Before Judges Rodriguez and Grall.
Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel v. Gautieri, Assistant Deputy Public Defender, of counsel and on then brief). Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack R. Martin, Assistant Prosecutor, of counsel and on the brief).
Defendant Frederick L. Parker appeals from a judgment of conviction. The judgment was entered on defendant's plea of guilty to five counts of an indictment alleging crimes committed on October 27, 2007: third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d; fourth-degree possession of prohibited hollow-point bullets, N.J.S.A. 2C:39-3f; fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1; and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7.
The judge merged defendant's convictions for unlawful possession of a handgun and possession of a defaced firearm. He sentenced defendant to a four-year term for unlawful possession of a handgun; a concurrent fifteen-month term for possession of hollow-point bullets; a consecutive fifteen-month term for obstructing the administration of law; and a third consecutive nine-year term for possession of a weapon by a convicted person.
On appeal, defendant argues that his arrest for obstruction was illegal, and the evidence seized incident to that arrest, which supports his conviction for weapons offenses, should have been suppressed. Additionally, he contends that the nine-year sentence for possession of a weapon by a convicted person is excessive and the consecutive sentences are not justified by the judge's findings. We conclude that the arrest was lawful but remand for reconsideration of the consecutive sentences.
In providing a factual basis for his guilty plea, defendant testified, "[an] officer tried to stop me and when he asked me to stop I didn't stop. I kept going." He admitted that he "took off when cops were trying to stop [him]" and cut into a parking lot because he did not want the officer to find the handgun he had in the waistband of his pants. That handgun had a defaced serial number and was loaded with a clip that held three hollow-point bullets. He further acknowledged that he had a prior conviction for possession of a controlled dangerous substance with intent to distribute, a conviction which prohibited him from possessing a handgun.
Defendant was arrested on October 27, 2007. He was then suspected of shooting someone earlier that month. On October 12, 2007, Detective Burrows of the Atlantic City Police Department responded to the scene of a shooting. The victim reported that he had been shot by a drug dealer and gave a description but not the name of the shooter. The victim told the officer he suspected that the drug dealer might have thought he was a "snitch" and did not want to cooperate if the shooting was "justified." Nonetheless, on October 24, 2007, the victim, who was still suffering from injuries caused by the shooting, decided to cooperate. He admitted he knew the drug dealer as "F.O." On October 26, the victim selected defendant's photograph from an array.
The victim signed a complaint and gave a statement. Using that information, Burrows prepared an arrest warrant, which was placed in a bin to be sent to court for processing, and a "wanted flyer," which would be circulated to the city's police officers at roll call. The flyer stated that defendant had shot one of his associates seven times and had access to firearms. The flyer also indicated that a warrant had been issued, but it was circulated before that was done.
On October 27, 2007, Officer Corcoran worked from 4:00 p.m. to midnight. He attended roll call and received a copy of the flyer that Burrows prepared. Corcoran knew defendant from his police work. At about 10:50 p.m., Corcoran was stopped at a traffic light and saw defendant riding a bicycle. Corcoran was in uniform and driving a marked police car. He hit his car's air horn twice, flicked on the overhead lights, called defendant by name and directed him to stop. The air horn does not sound like a siren; the sound is more like a car horn but amplified and "a lot louder." Corcoran got defendant's attention. Defendant looked at him, and they made eye contact.
Defendant did not stop. He stood up on the pedals and pedaled faster as if trying to get away. When defendant reached a parking lot, he pedaled through a pedestrian opening that was too small to permit Corcoran to continue the pursuit in his police car. Corcoran radioed for assistance, left the police car with the lights still activated and followed defendant on foot. As Corcoran chased defendant's moving bike, he broadcast defendant's description and path of travel to alert other officers in the area of his need for assistance.
When Officer Logan spotted Corcoran and defendant, he stopped his police car and got out with his police dog. At that point, defendant knelt on the ground and raised his arms. As Logan put defendant's arms behind his back to handcuff him, Corcoran saw the gun stuck in defendant's waist band. The handgun, which was equipped with a clip that held three hollow-point bullets, was seized.
Setting aside the erroneous information about the arrest warrant in the flyer Corcoran received at roll call, the trial judge determined that the underlying information included in the flyer and Corcoran's familiarity with defendant gave him reasonable suspicion adequate to stop defendant and question him about an aggravated assault. The trial judge also concluded that Corcoran had probable cause to arrest defendant for obstruction. N.J.S.A. 2C:29-1a.
The judge found the following facts pertinent to probable cause for arrest. A uniformed officer driving a marked police car activated the car's overhead lights, beeped its air horn, called defendant by name and directed him to stop. Defendant made eye contact with the officer and began "pedaling mightily" away into a parking lot. Defendant looked back and saw the uniformed officer in "hot pursuit" and "attempting to apprehend him," but he did not stop until other officers arrived. Based on Corcoran's "highly credible" testimony, the judge rejected defense counsel's assertion that the State failed to establish that defendant heard or saw Corcoran. The judge found that the facts and circumstances indicated that he had.
Relying on State v. Williams, 192 N.J. 1, 10-11 (2007) and State v. Crawley, 187 N.J. 440, 451, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006), the judge concluded that regardless of the legality of the stop, defendant's flight amounted to obstruction of administration of the law and gave rise to probable cause to arrest him for that crime. The judge explained that Williams holds that flight under circumstances amounting to obstruction of justice as defined in N.J.S.A. 2C:29-1a, is intervening conduct of a suspect that justifies arrest and eradicates any taint of an illegal investigatory stop. Williams, supra, 192 N.J. at 10-11.
On that basis, the judge denied defendant's motion to suppress the handgun and bullets recovered in the search incident to defendant's arrest for obstruction.
On appeal, defendant argues the judge erred in denying the motion to suppress. He contends:
I. PARKER DID NOT COMMIT THE CRIME OF OBSTRUCTION OF JUSTICE UNDER N.J.S.A. 2C:29-1(a), AND THUS THE SUBSEQUENT SEIZURE AND SEARCH OF HIS PERSON WAS ILLEGAL. U.S. CONST. AMEND IV, N.J. CONST. ART. I. ¶ 7.
We affirm the judge's denial of the suppression motion substantially for the reasons stated in the judge's September 19, 2008 oral decision. Defendant's objections to the adequacy of the State's evidence of obstruction are based on an overly selective reading of the testimony that does not account for the reasonable inferences drawn by the judge. Our review of the record convinces us that the judge's factual findings are supported by sufficient credible evidence in the record as a whole, State v. Locurto, 157 N.J. 463, 471 (1999), and that defendant's arguments lack sufficient merit to warrant any further discussion. R. 2:11-3(e)(2).
II We turn to consider defendant's three objections to his sentence:
II. PARKER'S SENTENCE MUST BE REMANDED TO CORRECT THE JUDGMENT OF CONVICTION OR FOR CLARIFICATION, BECAUSE THE JUDGE APPARENTLY ONLY INTENDED TO IMPOSE TWO CONSECUTIVE SENTENCES, HE FAILED TO PROVIDE A STATEMENT OF REASONS REGARDING THREE CONSECUTIVE SENTENCES, AND BECAUSE HE NEVER CONSIDERED THE PROPER ORDER OF THE SENTENCES.
III. PARKER'S SENTENCE FOR POSSESSION OF A WEAPON BY A CONVICTED FELON SHOULD BE REDUCED BECAUSE THE OFFENSE WAS NOT SO SERIOUS AS TO JUSTIFY THE NINE[-]YEAR SENTENCE.
IV. THE JUDGE ERRED IN IMPOSING A CONSECUTIVE SENTENCE ON THE OBSTRUCTION
CHARGE BECAUSE THE OBSTRUCTION OCCURRED AT THE SAME TIME AND PLACE AS PARKER'S OTHER OFFENSES.
At the sentencing hearing, the judge had the evidence about the crimes offered by defendant at the time of his guilty plea; testimony offered by the State at the time of sentencing to establish that defendant is a member of a gang involved in organized criminal activity; and a presentence report detailing defendant's criminal history.
At the time of his sentencing, defendant was twenty-six years old. In addition to an extensive juvenile record that led to him serving two periods of confinement, defendant had two prior convictions for indictable crimes entered in January 2001 and May 2002, respectively. Defendant also had charges that were pending against him - charges related to the shooting that brought him to the attention of the police in October 2007, and drug charges arising from separate incidents.
As noted at the outset of this opinion, the judge merged defendant's convictions for unlawful possession of a handgun and possession of a defaced firearm. The judge selected a sentence within the applicable range for each of the four convictions that survived merger. Although the State urged the judge to sentence defendant to a discretionary extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a, after balancing the aggravating and mitigating factors and considering the circumstances of these crimes, the judge concluded that a sentence near the top of the ordinary range applicable to each conviction was appropriate and an extended term was not warranted.
The judge's findings relevant to the aggravating and mitigating factors are supported by "competent credible evidence in the record" and binding on this court. State v. Roth, 95 N.J. 334, 364 (1984). After detailing defendant's criminal history, the judge found that the following aggravating factors applied and weighed heavily: risk of recidivism, N.J.S.A. 2C:44-1a(3); defendant's prior record, N.J.S.A. 2C:44-1a(6); and the need for deterring defendant and others, N.J.S.A. 2C:44-1a(9). The judge also found, based on testimony presented at the sentencing hearing, that defendant was an active member of a gang and a participant in organized criminal activity, N.J.S.A. 2C:44-1a(5). He determined that defendant's involvement in criminal activity was a fourth aggravating factor weighing in favor of a sentence at the high end of the ordinary range. The judge found no mitigating factors favoring a lesser sentence.
Because the judge applied the sentencing laws and the statutory factors relevant to the term of the sentences on the basis of facts supported by the record, this court may not disturb the term imposed for any of these convictions. State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
In contrast, the judge's findings with respect to consecutive sentences are in conflict with and do not support the consecutive sentences imposed. The judge's findings explain why he imposed a consecutive sentence for obstruction, but do not explain why he imposed a consecutive sentence for second-degree possession of a firearm. To the contrary, the judge suggested that all sentences for the possessory crimes would be concurrent with one another. In addressing the Yarbough factors, State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 84 L. Ed. 2d 308 (1986), the judge explained:
In a system of justice in which there are no free crimes and the punishment shall fit the crime, consecutive sentencing is warranted on the obstruction charge. This is a separate crime with separate elements involved in a factual scenario independent of the possessory offenses.
This explanation is inadequate. While judges have broad discretion, they must provide findings and reasons in support of consecutive sentences. State v. Miller, 108 N.J. 112, 122 (1987). The judge's failure to articulate any basis for imposing a consecutive sentence for possession of a handgun by a convicted person and his failure to discuss all of the Yarbough factors relevant in this case requires us to remand for resentencing. We retain jurisdiction and direct that the judge complete the resentencing hearing and entry of an order or amended judgment no later than January 15, 2011. Upon completion of the hearing, the judge shall file a copy of the order or amended judgment with the clerk of this court, who will issue a schedule for submission of briefs addressing consecutive sentences.
In summary, the convictions and items imposed are affirmed. The determination to impose consecutive sentences is reversed and remanded for a resentencing hearing on that issue.
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