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State of New Jersey v. Kelvin L. Flowers

August 2, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELVIN L. FLOWERS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0384.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 26, 2011

Before Judges Sabatino and C.L. Miniman.

Defendant Kelvin L. Flowers, who was convicted in 2009 of armed robbery and other offenses, appeals from the denial of his motion to suppress evidence, the denial of his motion to withdraw his guilty plea, and the sentence the court imposed. For the reasons that follow, we affirm.

I.

Although the case was not tried, the police reports and the testimony at the suppression hearing reveal the following pertinent facts. In essence, this case arises from defendant's participation in an armed robbery of five victims in Linden with two other men, co-defendants Sharif Boone and Yusef Evans.

On January 27, 2008, Linden police dispatch received a report of a just-completed armed robbery, involving three males who were in what was described as a "dark colored SUV." The report further stated that the SUV had just been in an accident, and would be expected to have fresh damage on its rear. The dispatcher relayed this information over the police radio between approximately 10:15 p.m. and 10:30 p.m.

A Linden police officer on patrol at the time, Paul Zack, heard the dispatch and drove to the vicinity of the reported robbery. Officer Zack soon observed an SUV fitting that description heading at a high rate of speed toward Routes 1 and

9. Zack was able to catch up with the SUV and observed "fresh damage" to the right rear of the vehicle.

Officer Zack continued to follow the SUV, initially observing two occupants inside the vehicle. A third occupant in the back seat then appeared in the rear window, looked at Zack's police cruiser, and then attempted to conceal himself again. This observation further aroused Zack's suspicion that the SUV was the one involved in the robbery. Zack called for backup assistance and then pulled the SUV over at Clinton Avenue and East Edgar Road.

When backup assistance arrived, Zack approached the SUV and ordered the three occupants to place their hands outside of the windows where he could see them. Zack approached the driver's side window, asked the driver for credentials, and then observed the front seat passenger attempting to hide something under the seat with his foot. Zack ordered him to remain still.

His suspicions heightened by the passenger's actions, Zack walked around the vehicle to the front passenger side, and shone his flashlight into the vehicle. He observed an out-of-state driver's license, two cellular phones, and the butt of what appeared to be a handgun sticking out from underneath the seat.

Having seen these items in the SUV, Officer Zack then ordered the three occupants out of the vehicle. He secured each of them in handcuffs, with the assistance of the other officers. After the three suspects were removed from the vehicle, Zack continued to peer through the windows with the illumination of his flashlight. While doing so, he observed the wooden handle of a second handgun on the back seat floor board.

Officer Zack then entered the SUV and removed the two guns. They turned out to be a wood-grip revolver and a plastic toy gun. Zack also removed from the floor of the vehicle two cellular phones, a knife, and identification cards later determined to belong to the robbery victims. The photographs on the driver's licenses were of white males, while the occupants of the vehicle were black males. Zack testified that all of these items were in plain ...


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