February 9, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HASSAN RIKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-08-2670.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2010
Before Judges C.L. Miniman and LeWinn.
Defendant was indicted on three third-degree narcotics-related offenses. Following the denial of his motion to suppress, defendant negotiated a plea agreement whereby he pled guilty to third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5 and -7; the State recommended a maximum sentence of four years with a two-year parole ineligibility period. Defendant was subsequently sentenced in accordance with the plea agreement. He now appeals, challenging the denial of his motion to suppress and contending that his sentence is excessive. We affirm the denial of defendant's motion to suppress and the length of his sentence. We remand for the purpose of allowing defendant to file a motion to modify his parole ineligibility period pursuant to the recent amendment to N.J.S.A. 2C:35-7.
The pertinent factual background may be summarized as follows. Prior to the hearing date on defendant's motion to suppress, counsel advised the judge that defendant "would just ask to make legal arguments as to the suppression . . . motion that's been filed[,]" as there was "no factual dispute." Concurring that there was no factual dispute, the judge stated: "I don't believe that we need an evidentiary hearing. It's really based on whether it was permissible or not." Counsel responded: "yes Your Honor[,] that's correct."
At the outset of the motion hearing, the judge recited the facts to which counsel had stipulated:
On May 7, 2007, officers of the . . . Newark Police Department were on patrol in the area of South Orange Avenue in Newark. The purpose of the patrol was to address drug complaints in the area.
During the patrol, they noticed a group of individuals obstructing a public passageway in front of 842 South Orange Avenue. The officers, noticing the scene, stopped their vehicle and approached the crowd. Upon approaching the group, the officer observed an individual with . . . defendant . . . sitting in the front passenger side seat of a parked Mercury Cougar.
When the defendant noticed the officers approaching, the defendant concealed or appeared to conceal an unknown object and placed it underneath his seat. And these are based upon the observations of the officers. The officers ordered the defendant out of his vehicle; however, the defendant did not comply, stating he was handicapped.
The officers, at that point, opened the door to the vehicle where they then noticed a clear plastic bag of suspected cocaine on the side of the seat. Subsequent to this discovery, the defendant was placed under arrest.
After reviewing the controlling legal principles, the judge concluded that, "[b]ased upon the totality of the circumstances, it was reasonable for the officers to make inquiry of the defendant and to further make a request of him to step out of the vehicle." When defendant asserted that he was handicapped, the judge found that "it was reasonable for the officers to open his car door based upon the public interest and police patrolling, not knowing if there were weapons or otherwise [sic] within the vehicle being maintained by the . . . defendant. . . . And once they opened the door, the evidence was in plain view."
At sentencing, the judge noted that defendant had six prior indictable convictions, four of which were for narcotics-related offenses. The judge found three aggravating factors: number three, the risk that defendant will commit another offense; number six, the extent of defendant's prior criminal record; and number nine, the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(3), (6) and (9). The judge found no mitigating factors applicable.
Finding that the aggravating factors "preponderate over any mitigating factors," the judge sentenced defendant to a term of four years, and imposed a two-year parole ineligibility period pursuant to N.J.S.A. 2C:35-7.
On appeal, defendant presents the following contentions for our consideration:
POINT ONE THE COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING.
POINT TWO THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS.
POINT THREE THE SENTENCE WAS EXCESSIVE.
Having reviewed these contentions in light of the record, we are satisfied that they are without merit.
Regarding defendant's first point, the record is clear that defendant waived any claim to an evidentiary hearing by stipulating that there were no factual disputes and only legal issues required resolution. Rule 3:5-7(c) provides that, on a motion to suppress, "[i]f material facts are disputed, testimony thereon shall be taken in open court." Here, as noted, defendant stipulated that no "material facts" were "disputed." It was not, as defendant contends on appeal, the "court" which "determined that there were no disputed facts"; rather, the court "determined" to accept the stipulation agreed upon by both parties.
Moreover, we are satisfied that the stipulated facts upon which the judge based his decision were sufficient to support his denial of defendant's motion to suppress. As the judge noted, the police officers' observations went beyond seeing a legally parked vehicle involved in no traffic violation. In fact, defendant's vehicle was "obstructing a public passage," and surrounded by "a group of individuals," thus leading the officers "to undertake an investigation." At that point, it was defendant's own conduct, in "remov[ing] an item from his person and conceal[ing] the item underneath his seat[,]" that gave the officers cause "to make inquiry of . . . defendant and to further make a request of him to step out of the vehicle."
Defendant's inability to comply with that request, due to his handicap, justified the officers in opening the driver door to assist defendant in stepping out of the vehicle. It was at that point that the cocaine was found in plain view in the vehicle.
As the Supreme Court recently recognized, the determination of whether an officer has established a "reasonable and articulable suspicion" to detain an individual is "fact-sensitive" and must be based on "a careful review of the totality of the circumstances surrounding each case." State v. Mann, 203 N.J. 328, 338 (2010). We are satisfied that the circumstances in this case justified the actions of the police officers and, therefore, defendant's motion to suppress was properly denied.
Finally, we turn to defendant's contention that his sentence is excessive. Defendant claims that the judge "failed to engage in an appropriate analysis of the aggravating and mitigating factors." Defendant fails, however, to identify any aggravating factors purportedly considered by the judge in error or any mitigating factors allegedly overlooked. See State v. Dalziel, 182 N.J. 494, 504-05 (2005) (court not obliged to find mitigating factors not clearly supported by the evidence). We are satisfied that the four-year term imposed neither represents an abuse of sentencing discretion nor shocks the conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989).
With respect to the parole ineligibility term imposed, N.J.S.A. 2C:35-7 was amended effective January 12, 2010, L. 2009, c. 192, to authorize a sentencing judge to waive or reduce parole ineligibility periods in school-zone cases under certain circumstances. The amendment specifically provides that "any person who, on the effective date of this act, is serving a mandatory minimum sentence as provided by . . . [N.J.S.A.] 2C:35-7 and who has not had his sentence suspended or been paroled or discharged may move to have his sentence reviewed by the court." N.J.S.A. 2C:35-7a(2). In light of this provision, the State "concedes [that] defendant is entitled to a remand for the limited purpose of determining whether his [two-year] parole ineligibility period should be reduced." We will honor that concession and afford defendant that limited relief.
We remand this matter to afford defendant the opportunity to move for modification of his sentence pursuant to Rule 3:21- 10, to seek reduction of his parole ineligibility period. In all other respects, we affirm.
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