On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-02-0132.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2010
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
A Cumberland County grand jury returned a thirty-four count indictment in which defendants Candido Mayas, Angel L. Rivera, and Manuel Mayas,*fn1 along with Daniel Rivera, were each charged with three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); one count of fourth-degree possession of a prohibited device (hollow point bullets), N.J.S.A. 2C:39-3(f); and two counts of third-degree receiving stolen property, N.J.S.A. 2C:20-7(a). In addition, Angel and Candido were each charged with one count of fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1(a), and Candido and Manuel were each charged with three counts of second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b).*fn2
Daniel entered a guilty plea prior to trial. Manuel, Candido, and Angel were tried together before a judge and a jury from June 5 to June 7, 2007. All three defendants were found guilty of three counts of third-degree unlawful possession of a weapon. Following a second trial held at the conclusion of the first before the same jury, Manuel and Candido were each also found guilty of three counts of second-degree possession of a weapon by a convicted person.
At Angel's sentencing, the trial court denied the State's motion to impose an extended term sentence based on persistent offender status, N.J.S.A. 2C:44-3(a). The trial judge found three aggravating factors: N.J.S.A. 2C:44-1(a)(3), the risk of reoffense; (6), the extent and seriousness of defendant's prior criminal record; and (9), the need to deter. The judge found no mitigating factors and sentenced Angel to five years with a two and one-half year period of parole ineligibility on each of the three counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), to run concurrently.*fn3
As for Manuel, the trial court found aggravating factors N.J.S.A. 2C:44-1(a)(3), (6), and (9), no mitigating factors and ruled that Manuel was a persistent offender, N.J.S.A. 2C:44-3(a). Manuel was sentenced to an extended fifteen-year term with a seven and one-half year period of parole ineligibility on count twenty-nine, possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b); a concurrent ten-year term with a five-year period of parole ineligibility on counts thirty and thirty-one, possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b); and a concurrent five-year term with two and one-half year period of parole ineligibility on counts one, two and three, unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). This sentence was consecutive to a sentence he was already serving.
After ruling that Candido was a persistent offender, N.J.S.A. 2C:44-3(a), the trial court found aggravating factors N.J.S.A. 2C:44-1(a)(3), (6), and (9) and no mitigating factors. Candido was sentenced to an extended twenty-year term with ten years of parole ineligibility on each of the three counts of possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b), and a five-year term with a two and one-half year period of parole ineligibility on each of the three counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), to all run concurrently.
For the purpose of this opinion, we have consolidated the separate appeals of these defendants. The facts are derived from testimony presented during the motion to suppress evidence and trial.*fn4 Vineland Police Officer Anthony Ruberti testified that at approximately 1:00 a.m., on October 5, 2005, he observed a Suzuki vehicle turn on the Boulevard in the center city area without lit tail lights. Officer Ruberti followed the Suzuki and activated his overhead lights and vehicle spotlight to effectuate a stop. With the aid of illumination, Officer Ruberti observed the rear passenger on the driver's side slouch and apparently attempt to conceal something underneath his seat. The Suzuki failed to stop and instead continued on the Boulevard toward Wood Street. Officer Ruberti sounded his vehicle's air horn and siren, but the Suzuki continued to travel to another street, eventually pulling over, and parking in the road, at an angle, in front of a residence.
Officer Ruberti stopped fifteen to twenty feet behind the Suzuki, and called to check the vehicle's license tag. Two occupants exited the vehicle, one from the front passenger seat, whom Officer Ruberti recognized as Angel and the other from the driver's side back seat, whom he recognized as Candido. Both left the vehicle doors open, and began walking "with a quick pace" towards the residence while Candido kept his eyes on Officer Ruberti. According to police information, both individuals were known to carry weapons. As Angel and Candido went towards the house, Officer Ruberti ordered them to return to the vehicle and neither individual complied.
Because Officer Ruberti was concerned there might be weapons in the vehicle, he then requested that the driver of the vehicle, Daniel, and the remaining passenger, Manuel, keep their hands visible. At this point, three other officers arrived at the scene. Officers Ruberti and Adams followed Angel and Candido and advised them that they would be charged with obstruction if they did not return to the Suzuki. Angel's mother, Hilda, came to the door of the residence and let Angel and Candido inside.
At that juncture, the officers returned to the Suzuki and removed Daniel and Manuel, telling them they were not under arrest, but placing them in the back of the patrol cars for safety reasons. Both doors of the Suzuki were left open.
As Hilda came out of the house, she started yelling and screaming aggressively. The officers first informed her of the need to have Angel and Candido come outside, and when the two men came to the doorway, Officer Ruberti advised them they were under arrest for obstructing. Hilda stood in Ruberti's way, and Angel and Candido went back inside. Hilda was arrested and placed in a patrol vehicle.
Officer Robert Magee testified that after Manuel and Daniel were removed from the Suzuki, he went over to the open front passenger-side door and, standing between the open door and the curb, he looked through the window. He saw a bag underneath the front passenger seat, used his flashlight, and saw the barrel of a gun sticking out from underneath the bag. Officer Magee yelled "gun" to alert the other officers in the area of the presence of a weapon.
Once Sergeant Stanley Czaplinski heard Magee yell "gun" he shined his flashlight, looked inside on the driver's side of the Suzuki, and saw the barrel and part of the handle of a second handgun under the driver's floor mat.
Officer Charles Garrison testified that after the second gun was found, with the door wide open, he used his flashlight, and searched under the driver's seat and the driver's side rear passenger area. In the rear, he saw the handle of a third handgun sticking out from a black piece of clothing, later determined to be one of three Halloween masks found in the Suzuki. All three of the handguns were seized. By that time, approximately thirteen Vineland officers had responded to a radio call and had set up a perimeter around the residence. Shortly thereafter, Candido and Angel emerged from the house and surrendered to the police without incident.
All three defendants filed separate motions to suppress the three handguns and three masks found in the Suzuki. On December 21, 2006, a hearing was held concerning the legality of the warrantless search of the Suzuki. Four of the officers and none of the defendants testified. Finding the State's witnesses credible, the trial court denied the motions to suppress. The court determined that the first two guns were in plain view and that exigent circumstances existed to allow a further search of the vehicle.
Subsequently, a second suppression hearing was held concerning
Manuel's taped verbal statement given after his arrest. At that
hearing, Officer Ruberti testified that Manuel was brought to the
police station and Officer Magee gave Manuel his Miranda*fn5
warnings. Officer Magee also testified that he gave Miranda
warnings at the scene and that Manuel signed the Miranda card at 1:35
a.m. Manuel acknowledged that he wanted to make a statement, but he
indicated that he would talk to the police if they released Hilda. He
wanted to make sure that Hilda went home that night. By the time
Manuel made the statement, the police had already decided to release
Hilda with a summons, although Manuel was not told that fact.
In his brief statement, Manuel admitted that two weapons in the vehicle were his and that he had purchased them from a person in Walnut Manor Apartment Complex. The trial court denied Manuel's motion to suppress his statement, finding the State's witnesses were "extremely credible" and Manuel made a "voluntary, knowing and intelligent waiver of his Miranda rights."
All defendants raise the following general errors on appeal:*fn6
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTION TO SUPPRESS THE FIREARMS FOUND IN THE VEHICLE.
POINT II: THE TRIAL COURT ERRED IN ALLOWING ADMISSION OF THE THREE MASKS FOUND IN THE VEHICLE.
POINT III: THE TRIAL COURT ERRED IN CHARGING THE JURY ON FLIGHT.
POINT IV: THE TRIAL COURT ERRED IN SENTENCING.
Angel raises the following additional errors on appeal:
POINT I: THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A MISTRIAL BASED ON THE PROSECUTOR'S IMPROPER USE OF PEREMPTORY CHALLENGES DENIED DEFENDANT HIS RIGHT TO EQUAL PROTECTION AND A FAIR TRIAL.
POINT II: THE TRIAL COURT ERRED IN FAILING TO ASCERTAIN WHETHER THE JURY WAS TAINTED. Manuel raises the ...