February 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY BRADLEY, A/K/A JASON BLACKEY, ERIC G. LORD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-05-0980.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 26, 2011
Before Judges Cuff and Fasciale.
Defendant appeals from his conviction for third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1). The central issue in this appeal is whether the judge erred by denying defendant's motion to suppress cocaine discovered during a protective search after an investigatory stop. We affirm.
At approximately 2:47 a.m., two officers listened in their patrol car to a radio transmission that four African-American males wearing dark clothing fled from the scene of a nearby accident. They observed defendant two to three blocks from the accident scene and he fit the description of the fleeing suspects. They noticed that defendant walked quickly, moved his hands in and out of his pockets repeatedly, and increased his speed when he spotted the officers. While sitting in the patrol car, the officers ordered defendant to stop, but he ignored them. They exited the car, ordered him again to stop, and he complied. At this point, they observed that defendant acted nervously and was out of breath.
The officers then received a radio transmission that a gun was found at the scene of the crash. Concerned for their safety, one officer patted down defendant to check for weapons. He detected a bulge in defendant's right jacket pocket, reached into the pocket believing that the bulge was a weapon, and retrieved thirty-four clear vials with black caps that contained cocaine.
Defendant moved to suppress the cocaine and argued that the investigatory stop was unjustified because the officers had no reasonable articulable suspicion to believe that he was armed and dangerous. One officer testified at the hearing and the judge found his testimony to be credible. The judge concluded that the officers had reasonable suspicion to justify the stop and denied the motion.
After a six-day trial, a jury found defendant guilty of third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1). They found defendant not guilty of third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1), and not guilty of third-degree possession of CDS with intent to distribute in a school zone, N.J.S.A. 2C:35-7. The judge imposed a four-year term of imprisonment. He also imposed a concurrent four-year term of imprisonment for a violation of probation.
On appeal, defendant raises the following points:
THE LOWER COURT ERRED IN DENYING MR. BRADLEY'S MOTION TO SUPPRESS THE THIRTY-FOUR VIALS OF COCAINE SEIZED FROM HIS JACKET POCKET.
A. THE LOWER COURT ERRED IN RULING THAT THE INVESTIGATORY STOP OF MR. BRADLEY WAS LAWFUL
B. THE LOWER COURT ERRED IN RULING THAT THE PAT DOWN OF MR. BRADLEY WAS LAWFUL
C. THE LOWER COURT ERRED IN RULING THAT THE SEIZURE OF VIALS FROM MR. BRADLEY'S POCKET WAS LAWFUL
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO OFFER IMPROPER EXPERT TESTIMONY THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL
THE TRIAL COURT ERRED IN IMPEDING THE DEFENDANT'S ABILITY TO CROSS-EXAMINE THE STATE'S ONLY FACT WITNESS (NOT RAISED BELOW)
IMPROPER COMMENTS MADE BY THE PROSECUTOR DURING SUMMATIONS SHIFTED THE BURDEN OF PROOF AND DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT MISAPPLIED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW)
In reviewing an order disposing of a motion to suppress evidence we must defer to the trial court's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). "'That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also State v. Robinson, 200 N.J. 1, 15 (2009); Elders, supra, 192 N.J. at 244. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). However, we need not defer to any legal conclusions reached from established facts. See State v. Brown, 118 N.J. 595, 604 (1990) (holding "[i]f the trial court acts under a misconception of the applicable law," we need not defer to its ruling). The trial court's application of the law is subject to plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
Defendant contends that the judge erred by not suppressing the cocaine because the investigatory stop was invalid. An investigatory 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.'" Pineiro, supra, 181 N.J. at 20 (quoting State v. Nishina, 175 N.J. 502, 510-11 (2003)). We reject defendant's argument that there are no specific articulable facts that give rise to a reasonable suspicion of criminal activity.
The motion judge found that defendant walked alone in the early morning hours within blocks of the accident scene, speeded up when he saw the police car, disobeyed an order to stop, acted nervously and placed hands in and out of his jacket, and breathed heavily. The officers then received a radio transmission that a gun was located at the scene of the accident. Under the totality of the circumstances, the officers had reasonable suspicion to justify an investigatory stop.
An officer may conduct a protective search after conducting an investigatory stop if he possesses a "'specific and particularized basis for an objectively reasonable suspicion that defendant was armed and dangerous.'" State v. Roach, 172 N.J. 19, 27 (2002) (emphasis in original) (quoting State v. Thomas, 110 N.J. 673, 683 (1988)). An analysis of "objectively reasonable suspicion" is subject to a totality of the circumstances analysis. Ibid. The pivotal question is "'whether a reasonably prudent man in the circumstances would be warranted in his belief that his safety or that of others was in danger.'" Ibid. (quoting State v. Valentine, 134 N.J. 536, 543 (1994)); accord Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968). The motion judge stated:
[O]nce the officers had stopped [defendant] for an investigatory detention . . . the officer then may conduct a pat down search if he believes [defendant] may be armed and presently dangerous.
Now without the call that went over the air relative to a gun being found at the site of the crash which again was three blocks away at this time, immediately before the pat down search, without that there would be a question about the validity of the pat down search which disclosed the cocaine.
But in the court's view that pat down was a reasonable exercise of the officer's right to conduct that pat down for their own safety based upon the call that had been transmitted over the radio.
The [officer's] actions were prudent [and] . . . reasonable. The Court does not find that there was unreasonable seizure of the defendant with respect to the stop and therefore upon reasonable finding of the drugs as a result of the pat down, there was a right to conduct the arrest and therefore defendant's motion to suppress the evidence if denied.
We discern no reason to disturb these findings.
Next, defendant argues that the sentencing judge imposed an excessive sentence and failed to consider the following mitigating factors: that defendant's conduct neither caused nor threatened serious harm and imprisonment would entail excessive hardship to defendant's child. N.J.S.A. 2C:44-1b(1) and (11).
Our review of a sentence is limited. State v. Roth, 95 N.J. 334, 364 (1984). We must first determine whether the correct sentencing guidelines have been followed. Id. at 365. When a trial court follows the sentencing guidelines, we should not second-guess the sentencing court's decision. State v. Jabbour, 118 N.J. 1, 5 (1990). Indeed, an appellate court "'does not sit to substitute its judgment for that of the trial court.'" Id. at 6 (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, we must affirm defendant's sentence. Jabbour, supra, 118 N.J. at 5; O'Donnell, supra, 117 N.J. at 215.
Applying these standards, we discern no reason to disturb the sentence. The trial judge followed the sentencing guidelines, and the record supports the judge's findings of aggravating factors pursuant to N.J.S.A. 2C:44-1a(3), (6) and (9). The judge found defendant was remorseful and concluded that the aggravating factors substantially outweighed any mitigating factors.
Defendant faced up to five years in state prison for his third-degree conviction for possession of CDS. The sentence is not "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), and does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.
We have carefully reviewed the record and the arguments presented by counsel and conclude that the remaining issues presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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