On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-10-3169.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011 -
Before Judges Messano and Kennedy.
Following the denial of his motion to suppress evidence, defendant Johnathan Daniels pled guilty to unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b), pursuant to an agreement with the State to recommend a five year sentence with a three year period of parole ineligibility. Defendant was sentenced to five years in state prison with three years of parole ineligibility and he now appeals. Defendant presents the following issues on appeal.
Point I THE POLICE SEIZURE OF THE DEFENDANT, A PASSENGER IN A MOTOR VEHICLE STOPPED FOR MOTOR VEHICLE INFRACTIONS, VIOLATED THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION.
Point II THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY IMPOSED A PERIOD OF PAROLE INELIGIBILITY.
For the reasons that follow, we affirm.
The facts that follow are derived from the evidentiary hearing on defendant's motion to suppress evidence. On July 16, 2008, New Jersey State Trooper Ryan Donnelly and three other officers were on patrol in Irvington in an unmarked van when they saw a white Nissan minivan weaving through afternoon rush hour traffic "in an erratic manner." According to Donnelly, the minivan was being driven so erratically it "almost caused several accidents." The officers trailed the minivan until both arrived side by side at a traffic light.
From the front passenger seat of his van, Donnelly looked into the other vehicle and saw no key in the ignition. A backup unit was then called and Donnelly and the other officers continued to follow the minivan. When the minivan finally stopped, the officers pulled in behind it, activated their lights, and exited their vehicle.
The four officers who approached the vehicle wore plain clothes, but also wore tactical vests identifying them as state police officers. The three occupants of the minivan, one of whom was later identified as defendant, remained in the vehicle. Defendant occupied the front passenger seat and as Donnelly approached the front passenger door, he observed the butt of a handgun protruding from defendant's right pants pocket. Donnelly yelled "gun" to alert the other officers and then removed defendant from the minivan, handcuffed him, and recovered the weapon - a .22 caliber Gerstenberger revolver -from defendant's pocket.
The trial judge found Donnelly "very credible" and added that his height lent credibility to testimony that he was able to see the interior of the minivan without difficulty. The trial judge also noted that defendant was not wearing "bulky" clothes that could have concealed the weapon from plain view.
Our standard of review on a motion to suppress is limited. We 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. Elders, 192 N.J. 224, 243 (2007). It is not our function to second-guess the trial court's credibility findings ...