On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-01-0231.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Baxter.
Defendant John F. Cortez-Ramirez appeals from his August 20, 2009 conviction on one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7(a), for which the judge sentenced him to a two-year term of non-custodial probation, to run concurrent to probationary terms he was currently serving in both New Jersey and New York. On appeal, he raises the following claims:
I. THE OFFICER LACKED THE REASONABLE AND PARTICULARIZED SUSPICION REQUIRED TO LAWFULLY SEIZE THE DEFENDANT, NECESSITATING SUPPRESSION. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. .
II. THE MOTION COURT'S DETERMINATION OF CREDIBILITY MUST BE REJECTED, BECAUSE IT WAS BASED, AT LEAST IN PART, UPON THE DEFENDANT'S STATUS AS A DEFENDANT. U.S. CONST., AMEND XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
I.Defendant filed a motion to suppress. At the May 20, 2009 evidentiary hearing, the State presented the testimony of police officer Peter Insetta who was on routine patrol in North Bergen at 1:00 a.m. on November 1, 2008. In an unmarked police vehicle, he was driving southbound on Bergenline Avenue when he saw defendant standing next to the mail storage box at the post office. Insetta noticed defendant because the post office was closed, and due to two bars nearby, "the area had experienced urinating in public, and public indecency crimes." He noted that "it was late at night, it's not a frequented area, [and] there wasn't pedestrian traffic."
Insetta repositioned the police vehicle to obtain a better view of defendant, and was able to see that defendant was "holding papers in his hand, going through various papers, and there was a white plastic bag at his feet." When defendant became aware that Insetta was observing him, defendant began to drop the papers to the ground. As soon as defendant "began dropping the papers," Insetta activated the emergency lights on his vehicle, and exited the vehicle with a police badge on a chain around his neck. Identifying himself as a police officer, Insetta asked defendant what he was doing. Defendant stated that he had been at the Tapas Bar, and was in the process of walking home. On three separate occasions, defendant began to saunter away but Insetta on each occasion asked him to come back. Insetta described defendant as "nervous, shaky, a little disheveled."
Insetta acknowledged that "dropping papers is [not] a crime," but explained that defendant "flipping through papers" aroused his suspicion because defendant was "directly next to a post office" where mailboxes and unsecured postal vehicles are present. He testified that he was also suspicious because defendant "just dropped his papers on the ground and left his bag behind," leading him to "infer" that the bag "didn't belong to him."
Insetta used his police radio to request that a marked unit be dispatched to the scene. As Officer Ortega arrived in the marked unit, Insetta noticed a black purse and identification cards scattered on the ground slightly to the right of where defendant had been standing. The white plastic bag that Insetta had observed earlier was on the ground next to several identification cards. Among them was a driver's license bearing the name Beatriz Borrero-Cucalon. Borrero-Cucalon, who was in a nearby bar, told police that the items recovered on the ground where defendant had been standing, had all been in her purse in the trunk of her car parked on Bergenline Avenue. She testified at the suppression hearing that she had put the purse in the trunk of her car before going into the bar, but had forgotten to lock the car. Insetta arrested defendant after Borrero-Cucalon identified the objects as hers.
After the arrest, Insetta searched him. In defendant's jacket, Insetta found a bracelet and three items of makeup. Borrero-Cucalon advised Insetta that these items had been in her handbag as well.
Defendant testified that he was leaning on the mailbox waiting for his aunt to arrive home, because he did not have a key. He acknowledged he was "looking at . . . papers" at the time Officer Insetta approached him. He explained that as he was walking toward the house from the Tapas Bar, he saw a bag on the ground and decided to "go through" it because he "was just being nosy." Inside the plastic bag, he found "some paperwork" and a black purse. On the ground he saw "something shiny" that he thought were "some markers." When Officer Insetta arrived, he "got nervous" and dropped the papers to the ground and "pocketed some of the items." When asked how the makeup and a woman's bracelet came to be found in his jacket, defendant responded "I didn't know that was there." When the prosecutor asked him where the makeup and jewelry had come from, he said "when [police] stopped me, I guess I put it in my ...