On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-07-1773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011
Before Judges Messano and Espinosa.
Defendant Saahir Rahim appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree robbery, the sole count contained in the indictment. He raises the following points on appeal:
THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON THE OFFENSE OF THEFT AS A LESSER-INCLUDED OFFENSE OF ROBBERY (NOT RAISED BELOW)
THE PROSECUTOR REPEATEDLY COMPELLED MR. RAHIM TO TESTIFY REGARDING THE CREDIBILITY OF THE STATE'S WITNESSES THEREBY VIOLATING MR. RAHIM'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED MR. RAHIM OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE EVIDENCE FOUND IN MR. RAHIM'S VEHICLE
THE TRIAL COURT ERRED IN IMPEDING THE ABILITY OF THE DEFENSE TO CROSS-EXAMINE THE VICTIM IN THIS CASE (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY PERMITTING POLICE WITNESSES TO TESTIFY CONCERNING COMMUNICATIONS RECEIVED FROM A NON-TESTIFYING OUT-OF-COURT DECLARANT (NOT RAISED BELOW)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE (NOT RAISED BELOW)
We have considered these arguments in light of the record and applicable legal standards. We affirm.
In Point IV, defendant argues that the judge should have granted his motion to suppress evidence seized during a warrantless search of his vehicle. He contends that since exigent circumstances did not exist, the search was not justified pursuant to the automobile and plain view exceptions to the warrant requirement. We disagree.
At a pre-trial evidentiary hearing on defendant's motion, Atlantic City police officer Robert Toscano, Jr. testified that at 2:30 a.m. on the morning of April 14, 2008, he was dispatched to "backup" officers Michael Braxton and Donnell Holland at a motor vehicle stop regarding a "strong-arm robbery." When he arrived, Braxton and Holland had already stopped a vehicle fitting the description of the car that fled from the robbery. They were questioning the driver, eventually identified as defendant.
Toscano approached the car from the passenger side and shone his flashlight on the rear seat, where he observed a driver's license. Police communications had provided a description of the items taken from the victim during the robbery, which included his driver's license, credit cards, and other personal items. "[The license] was face up and [he] could clearly see the picture on the license was of a white male." Defendant is African-American. Toscano "opened the door[,] . . . retrieved the license and . . . asked communications [for the] name of the victim." Communications provided the name "Wayne Smith," which matched the name on the license.
Holland testified that he was on patrol when he received a call from dispatch with the descriptions of a suspect and vehicle involved in a robbery. Within minutes, Holland saw a vehicle fitting the description, followed it for a block, activated his lights and pulled the vehicle over. Defendant was driving and alone in the car.
Holland asked defendant "for his license, registration and insurance," but defendant was "[un]able to provide that." Holland noticed blood on defendant's knuckles, and asked what had happened. Defendant said "he had just had a fight with his girlfriend." Holland ordered defendant out of the car and "noticed he had blood all on his t-shirt."
Braxton advised Holland that defendant had an open "warrant for a suspended driver's license." Defendant was placed under arrest. Holland "patted [defendant]" for weapons and found none. However, Holland did find a watch with a broken strap and cash in defendant's pocket. Holland knew Toscano had seized "ID" that was not defendant's from the backseat. Within minutes, the victim arrived at the scene and identified defendant as the man who robbed him.
After defendant was in the police car, Holland had Braxton search the car because "that vehicle . . . was going to be taken . . . to the tow yard and it's not protected by police at all." Additionally, the car was not registered to defendant, and the area was "a very high drug, high crime area." On cross-examination, Holland further testified that "[w]e did not have the manpower to stay with [the] vehicle," "[a] telephonic warrant takes quite some time," "we were short staffed, . . . and the vehicle was about to be turned over to a civilian and taken to an unsecured location." Braxton's search of the backseat of defendant's car resulted in the seizure of other evidence which we discuss in detail below.
Finding both officers to be credible, the judge denied defendant's motion to suppress and explained his reasons in a comprehensive oral opinion:
[T]he area in which [the officers] indicate this happened was a high crime area, where there's a lot of shootings, drug transactions. It's 2:00 a.m. in the morning. They indicated they were short of staff. They indicated that to tow the car it would go to an unsecured lot. . . . I think that under the issue of exigency, that all of this is important . . . [because] people have underestimated the fresh blood on the shirt and hands of the Defendant. . . . He gives an admission that he had some kind of a fight with his girlfriend.
So, therefore, this is all fluid and ongoing. Nobody really knows is the girlfriend behind him; is she following him; does she have people following him to get even. Or if it's not a girlfriend, whoever he had this altercation with, are they in the immediate area; are they looking to see what's going on; are they waiting for an opportunity to get the Defendant and get the cops. These are all things that go into the totality of the circumstances that deals with exigency of not waiting two, three hours at that scene. High crime area, middle of the night, Defendant with blood all over him, and waiting in this area for maybe somebody that's also looking for Defendant to get even to come upon the scene. . . . So, as far as exigency, I think under the totality of the circumstances, that exigency would appear to be satisfied. . . . I think that the search of the driver's license by Toscano . . . is allowable under . . . one of two theories, or both; one, a plain view exception and two, the exigent circumstances.
[U]nder the totality of those circumstances, I don't think there's any question that, under the plain view exception, that he could go in there and take the license to see exactly whose car this is, whose license it is. Is it the person who evidently was assaulted and robbed?
It is well-recognized that "[i]n reviewing a motion to suppress, an appellate court 'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007), in turn quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal.'" Handy, supra, 206 N.J. at 44-45 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "Whether the facts found by the trial court are sufficient to satisfy ...