On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-12-1596.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Fasciale.
After the motion judge failed to conduct an evidentiary hearing on defendant's motion to suppress, defendant pled guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. The judge sentenced defendant to three years in prison with a one year term of parole ineligibility. Defendant appeals from that conviction, argues that the material facts were disputed, and contends that the judge erred by not taking testimony. We agree and reverse.
Because the judge denied defendant's request for an evidentiary hearing, the judge considered the briefs filed by the parties, a police report, and oral argument by the attorneys. We discern the following facts from those sources.
The State contended that three undercover detectives were dispatched to an area in response to complaints of people "hanging out and selling narcotics." When they arrived in an unmarked police car, one detective observed defendant hold a "shiny, silver item" and show it to another man. The detective could not identify the object. The detectives pulled over, exited the car, approached both men, and identified themselves as police officers. At that point, one detective identified the object as a gun and observed defendant attempt to conceal it. The detective handcuffed defendant and arrested him.
The police report verified that the three detectives were in the area because of complaints concerning drug sales. The report states that one detective observed defendant showing a "shiny silver item" to the other man, and that the detective did not know what the object was until he exited the car, approached defendant, and announced he was a policeman.
Defense counsel hotly contested the facts in his brief in support of the motion and during oral argument before the motion judge. In his counter-statement of facts defense counsel explained that:
This case is about a pretextual stop and search that was the product of racial profiling and perceive[ed] gang affiliation, not a reasonable and articulable suspicion of plain view observation. . . . [T]he detectives claim to have observed [the other man] and [defendant], both dark[-]skinned African-Americans and cousins to one another, standing face to face, next to a tree. The police allege to have observed [defendant] holding a shiny item which they have unreasonably assumed was a gun.
Significantly, none of the three officers had their guns drawn when they approached [the men], nor did they call for back-up prior to approaching them.
Without waiving any of his constitutional rights, [defendant] admits to possession of the firearm which was concealed in his pants at all relevant times. He had the firearm for self-defense because his younger brother . . . had been shot and killed one month prior . . . . (emphasis added).
Defense counsel also stated in his counter-statement of facts that defendant was wearing a short sleeve shirt which exposed numerous tattoos on his arms, and suggested that "[t]attoos on young Black and Latino men are commonly associated with gang affiliation."
At oral argument before the judge, defense counsel emphasized that the material facts were in dispute. He repeated his argument that the case is about "a pretextual stop and search that was the product of racial profiling and perceived gang affiliation," and stated that "all three of these ...