On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-10-0913.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2010
Before Judges Sapp-Peterson and Fasciale.
Defendant appeals the denial of his suppression motion and the five-year sentence with a five-year period of parole ineligibility imposed following the entry of defendant's guilty plea to second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b). We affirm.
Three witnesses testified at the suppression hearing: Officer John Chambers, on behalf of the State; and Officer Kelly Strauss and defendant for the defense. Officer Chambers testified that he stopped defendant as he was walking along Route 45 in the early morning hours of September 14, 2006. About ninety minutes earlier, there had been a one-person motorcycle accident about one-half mile away. The cyclist was observed fleeing the scene after the accident. Based upon this information, when Officer Chambers saw defendant walking along the roadway, he decided to question him. He asked the individual for his name, explained the nature of his investigation, and asked defendant whether he knew anything about the crash. Defendant told the officer that his name was Carl Revels and that he was walking home from work, which was in Camden.
Officer Chambers testified that he decided to ask for identification from defendant because he knew that dispatch was having trouble matching up a name with the motorcycle. Defendant told him that he did not have any identification, so Officer Chambers asked whether defendant had any other paperwork. Defendant reached into one of his pants pockets and "extend[ed] out his hand in front with a piece of paper and a folded pocketknife" that had a four-inch blade. Not knowing what was going to happen, being concerned for his safety and concerned that an altercation may occur, Officer Chambers directed defendant to open his hand so he could take possession of the knife and secure it. Defendant complied. Officer Chambers then conducted a pat down and "felt something hard" in the rear section of defendant's pants. He asked defendant about the object and defendant told him that it was a pistol. He handcuffed defendant and then conducted a search of the area of defendant's clothing where he felt the hard object and retrieved a handgun.
Under cross-examination, Officer Chambers acknowledged that Officer Strauss was at the scene, but indicated that he did not pay attention to the time of her arrival. He also admitted that defendant never tried to leave or make any motion as if attempting to leave. He never retained the piece of paper that defendant purportedly removed from his pants pocket.
Officer Strauss testified that she arrived at the scene when Officer Chambers was first approaching defendant. She observed the questioning and saw defendant pull out the folding knife.
Defendant testified that he worked in a factory in Camden and finished work that evening between 11:00 p.m. and 11:30 p.m. He was walking home when he first observed an unmarked car pull near him. The officers in the vehicle did not approach him and he continued to walk. Ten minutes later, at the intersection of Route 45 and Hessian Avenue, Officer Chambers approached him in a vehicle, exited the vehicle and then proceeded to initiate a conversation with him. The officer asked from where he was coming, whether he had any scars or marks on him, and if he was okay. Defendant told the officer that he was walking from work. Defendant testified that after the officer examined his arms, the officer allowed him to leave and he continued walking home.
According to defendant, a few moments later, Officer Strauss pulled up in another vehicle and positioned her vehicle behind Officer Chambers's vehicle. Officer Chambers called out to defendant to come over to where he was and told him that he was going to run a check on him "just to be sure." Officer Chambers asked for identification, and he responded that he did not have any. Officer Chambers then asked him whether he had any weapons or sharp objects in his pockets, in response to which defendant produced a pocket knife. Defendant testified that he told Officer Chambers he used the pocket knife to cut rope where he worked.
Defendant indicated that Officer Chambers then looked scared, so he closed his hand to show the officer that he was not being threatening towards him. Officer Chambers, however, reached for the knife, and defendant voluntarily turned it over to him. Officer Chambers placed him on the ground, inquired whether he had any weapons, and he responded by telling the officer that he had a gun. He was placed under arrest and then searched. Defendant also admitted that he was previously convicted of a third-degree offense.
At the conclusion of the hearing, the trial court denied defendant's motion. The court found:
Certainly, at the point of time that the knife was pulled out of the pocket, not only is it good police work but the officer's under an obligation to then further check to ensure ...