January 31, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EUGENE I. KELLY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-04-0953D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 23, 2011
Before Judges A. A. Rodriguez and Grall.
Defendant, Eugene I. Kelly, appeals from his convictions following a jury trial for second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7; and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Judge Bernard E. DeLury, Jr. granted the State's motion to impose an extended term, merged the convictions and imposed an extended sixteen-year term with an eight-year minimum term. We affirm.
Prior to trial, defendant moved to suppress evidence (the weapon). Following an evidentiary hearing, Judge Michael A. Donio denied the motion. Subsequently, pursuant to an agreement with the State, defendant entered a guilty plea to third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Upon the condition that defendant waived his right to appeal, pursuant to Rule 3:9-3(d), the State agreed to dismiss related second-degree charges and to recommend that any custodial sentence not exceed five years. The plea was entered before Judge DeLury.
Prior to sentencing, defendant moved pro se to withdraw his guilty plea. Judge DeLury denied defendant's motion and stated to defendant:
THE COURT: You have 45 days from today's date to appeal. If you fail to do so, you'll lose that right. [If] you had a good reason for your failure, then the Court would give you 30 more days. After that, if you don't appeal, you'll lose your right to appeal. I'd also point out to you, sir, that as a part of the plea bargain, that the Court is now enforcing and sentencing you upon, you had indicated that you were going to waive your right to appeal. You always have your right to appeal, but if you should choose to exercise it, then the State can withdraw from this guilty plea pursuant to the rule and then reinstate the dismissed charges against you and proceed along the prosecution's path to trial. Do you understand your appellate rights, sir?
[DEFENDANT]: Yes, sir.
Judge DeLury imposed a five-year term in accordance with the plea agreement.
Despite the waiver of appeal provision of the plea agreement, defendant moved pro se to appeal his conviction. The State moved to annul the plea agreement. Judge DeLury granted the State's motion, vacated defendant's conviction and restored all charges. Defendant then withdrew his appeal. However, he moved for reconsideration of his motion to suppress, which Judge DeLury denied. The matter proceeded to trial. Defendant was convicted.
On appeal, defendant contends that:
THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS EVIDENCE WHERE THE BASIS FOR THE TERRY STOP WAS THAT [DEFENDANT] WAS SWAYING AS HE SPOKE ON A CELLULAR PHONE AT 2:30 A.M. IN FRONT OF A MULTI-DWELLING BUILDING WHERE HE HAPPENED TO LIVE, AND WHEN [DEFENDANT] TOLD OFFICER GORMAN THAT HE WAS JUST USING HIS PHONE, HIS WORDS SOUNDED SLURRED. U.S. CONST., AMENDS, IV & XIV, N.J. CONST., ART. I, PARA. 7.
In a pro se supplemental brief, defendant contends:
[HE] WAS UNLAWFULLY STOPPED AND SEIZED BY POLICE AND THE EVIDENCE FOUND ON DEFENDANT WAS THE FRUIT OF THE UNLAWFUL STOP AND SEIZURE.
We reject both of these challenges to Judge DeLury's denial of defendant's motion to suppress.
This is the evidence presented by the State at a hearing on the motion to suppress, at which Pleasantville Police Officer Mark Gorman was the sole witness. He was also the sole witness at trial. According to Gorman, he was conducting a routine patrol in a marked police car on March 26, 2007. At around 2:30 a.m., he saw defendant in a mixed business and residential area of Pleasantville, which was well known as one where people were using and selling drugs and weapons. Gorman also explained that late-night robberies occurred weekly in the area. Defendant was the only person on the street at the time and the businesses had all closed for the night. As Gorman slowed for a red light, he noticed defendant swaying side to side as he walked.
Defendant made eye contact with Gorman, pointed to his phone and said "I'm just holding a phone." According to Gorman defendant slurred his words and was swaying enough that his waking could be characterized as "stumbling."
Gorman suspected that defendant was intoxicated. He drove past defendant but turned around and parked his vehicle on the opposite side of the street. Gorman was concerned about defendant's safety due to the time of night, history of crime in the area, and defendant's possible intoxication. As Gorman pulled over, defendant began walking in the opposite direction, which made the officer more suspicious. Gorman called out to defendant: "Yo, where are you going? Come here? . . . I want to talk to you." Defendant turned around and said "I'm just waiting for a ride" and "why are you stopping me." Defendant was agitated and asked "why are you harassing me?" Defendant's voice was high-pitched and less slurred than it was during the initial encounter with Gorman. While Gordon thought defendant seemed nervous during the first encounter, his tone during the second encounter was different, agitated and aggressive.
At that point, Pleasantville Police Officers Robert D'Arcangelo and Mark D. Porter arrived at the scene. Gorman asked defendant where he was going. Defendant said he was going to buy cigarettes at a gas station. Because Gorman believed that the nearest gas station in the direction of defendant's travel was three miles away and the nearest one in the opposite direction was even farther, his suspicion was further aroused. While speaking to Gorman, defendant looked back and forth rather than at Gorman, and as he spoke to the officers defendant moved to walk away toward the rear of a nearby building, not in the direction he had been walking. Becoming more suspicious, Gorman asked defendant if he had any identification with him. Defendant did not respond but asked the officers why they were harassing him. When Gorman asked again, defendant did not respond but instead quickly reached toward his pants pocket. Fearing for his safety and that of his fellow officers, Gorman asked to see defendant's hands. Defendant said he was reaching for his identification, but Gorman determined that he should frisk for weapons.
In accordance with his training, Gorman told defendant to interlock his fingers and turn around because he was going to search defendant for weapons. Defendant did not interlock his fingers. Gorman asked defendant if he had anything on him that would hurt the officer. Defendant replied "no."
As Gorman repositioned defendant's hands for a pat down, he heard D'Arcangelo scream "gun!" D'Arcangelo then removed a twenty-two caliber handgun from defendant's waistband, and Gorman forced defendant to the ground and cuffed him. Defendant stated that he needed the gun for his protection.
Judge Donio denied the motion to suppress the handgun. He found Gorman's testimony credible and determined that as the encounter progressed from a field inquiry to a stop and a frisk, the totality of the circumstances gave the officer a reasonable and articulable basis for each additional intrusion. We agree with this decision.
The constitutional prohibition against unreasonable search and seizure is not implicated when an officer approaches a person in a public place and poses questions. Florida v. Royer, 460 U.S. 491, 497--98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983); State v. Maryland, 167 N.J. 471, 483 (2001). When the person is detained, the constitutional protection is triggered. Ibid. A warrantless search or seizure of persons or property presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement. State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). See Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968). One of the exceptions involves investigatory stops, which may be accompanied by a "frisk" under certain circumstances. The United States Supreme Court has explained those exceptions as follows: where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken. [Id. at 30-31, 88 S. Ct. at 1884-85, 20 L. Ed. 2d at 911.]
The New Jersey Supreme Court the has also carved out an exception to the New Jersey Constitution's warrant requirement, based on the goal of effective criminal prevention. Thus, a police officer is permitted, "in appropriate circumstances and in an appropriate manner, but without probable cause, to intrude upon the constitutionally protected interests of a private citizen to investigate possible criminal behavior." State v. Davis, 104 N.J. 490, 499-500 (1986). "This general governmental interest is sufficient to justify a particular intrusion, however, only when the police officer can 'point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion.'" Id. at 500 (alteration in original) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Such an investigatory stop is "justified only if the evidence, when interpreted in an objectively reasonable manner, shows that the encounter was preceded by activity that would lead a reasonable police officer to have an articulable suspicion that criminal activity had occurred or would shortly occur." Id. at 505.
The officer's initial and subsequent approach of defendant required no justification. Thus, the first question is whether Gorman had reasonable suspicion justifying the detention he affected by directing defendant to stop. By the time Gorman gave that order, he had seen defendant walking as if stumbling during the early morning hours in an area known for drug crimes. In addition, he had heard defendant's slurred speech and seen defendant turn change his direction of travel as he parked his patrol car. Under the totality of the circumstances known to Gorman when he told defendant to stop, Gorman had reasonable grounds to suspect that defendant was involved in criminal activity. Accordingly, Gorman could properly detain defendant briefly to confirm or dispel his suspicion. Therefore, the judge was correct in concluding that the investigatory stop was permissible pursuant to the Terry and Davis doctrines.
After the initial stop, defendant gave Gorman conflicting descriptions of his plans - waiting for a ride and going to get cigarettes at a gas station he could not identify - that were apparently inconsistent with one another. Moreover, defendant's professed plan to go for cigarettes rang false given the time of day, defendant's changes in his direction of travel and the distance to the nearest gas station. Under the totality of these circumstances, defendant's responses and actions gave cause for additional suspicion justifying the extension of the stop and Gorman's inquiry as to whether defendant had identification.
Finally, defendant's response to Gorman's inquiry about his identification gave the officers reason to fear for their safety, which justified a protective frisk for weapons. Defendant did not say whether he had identification; instead, the agitated man quickly reached for his pocket. That response justified Gorman's demands for defendant to display his hands, place them behind his head and interlock his fingers. In complying, defendant inadvertently revealed the gun he had stuffed in his waistband, which the officers properly seized when they saw it.
For the foregoing reasons, we affirm Judge Donio's denial of defendant's motion to suppress.
On appeal defendant also contends:
THE TRIAL COURT DID NOT OBTAIN A VALID WAIVER OF APPEAL FROM [DEFENDANT] (Not Raised Below). U.S. CONST., AMENDS. VI & XIV, N.J. CONST., ART. I, PARA. 10.
Specifically, defendant argues that the judge's colloquy during the entry of his plea failed to inform [defendant] that he was waiving the right to appeal the suppression motion's denial and did not "comport with [Rule] 3:9-3(d) or include a full explanation of the penal consequences facing [defendant] if the plea were annulled."
We reject this contention because it is belied by the record. It is clear that the judge gave an adequate and thorough explanation of the implication of waiving the right to appeal.
We also reject defendant's argument that his waiver of his right to appeal does not extend to the denial of a pre-trial motion to suppress evidence because the plea agreement did not include an explicit statement to that effect. Defendant advances no authority, and we find no support for this proposition. Rule 3:5-7(d) provides a right to appeal the denial of motion to suppress evidence that would otherwise be waived by an unconditional guilty plea. See State v. Robinson, 224 N.J. Super. 495, 498-99 (App. Div. 1988) (discussing significance of the Rule). The Rule does not preclude waiver of the right established under that Rule.
In fact, Rule 3:9-3(d) allows a defendant to waive the right to appeal pursuant to a plea agreement. The Rule states:
Whenever a plea agreement includes a provision that defendant will not appeal, the court shall advise the defendant that notwithstanding the inclusion of this provision, the defendant has the right to take a timely appeal if the plea agreement is accepted, but that if the defendant does so, the plea agreement may be annulled at the option of the prosecutor, in which event all charges shall be restored to the same status as immediately before the entry of the plea. In the event the defendant files an appeal in a case in which the plea agreement included a provision that the defendant will not appeal, the State must exercise its right to annul the plea agreement no later than seven days prior to the date scheduled for oral argument or submission without argument. [Ibid.]
Therefore, a waiver of the right to appeal is valid, "provided always the administration of such a settlement is fair, free from oppressiveness, and sensitive to the interests of both the accused and the State." State v. Gibson, 68 N.J. 499, 511 (1975).
Lastly, defendant contends that:
THE SIXTEEN-YEAR EXTENDED-TERM SENTENCE, WITH EIGHT YEARS PAROLE INELIGIBILITY, FOLLOWING FOUR PRIOR PROBATION SENTENCES, WAS EXCESSIVE, WAS CONTRARY TO THE CONCEPT OF PROGRESSIVE PUNISHMENT INHERENT IN OUR SENTENCING SCHEME AND PENALIZED [DEFENDANT] FOR DEFENDING AGAINST THE CHARGES.
Defendant was thirty-nine years old at the time of sentencing. He has a history of five indictable convictions and more than necessary to make him eligible for an extended term as a persistent offender. N.J.S.A. 2C:44-3a. In addition, defendant had eight violations of probation and three violations of parole. The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a: (3) the risk that defendant will commit another offense; (6) the extent and seriousness of defendant's prior criminal record; and (9) the need for specific and general deterrence. The judge found that none of the mitigating factors listed in N.J.S.A. 2C:44-1b applied.
From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Jarbath, 114 N.J. 394, 400-01 (1989). The aggravating factors preponderate and justify imposition of a period of parole ineligibility. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors and adherence to the method for setting the duration of an extended term specified in State v. Pierce, 188 N.J. 155, 169-70 (2006). State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).
In a pro se supplemental brief, defendant contends that:
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, AND NOT THE COUNSEL GUARANTEED UNDER THE UNITED STATE'S CONSTITUTION'S 6TH AMENDMENT.
Specifically, defendant argues that his trial counsel was ineffective because she failed to move for a judgment of acquittal.
Because the details of trial counsel's alleged deficiencies are part of the trial record and do not depend on matters outside the record, they may be addressed on direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992). For that reason, we address the claim.
In determining claims of ineffective assistance of counsel, New Jersey courts follow the standard formulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). State v. Fritz, 105 N.J. 42, 58 (1987). Pursuant to New Jersey's interpretation of its own constitution, to show ineffective assistance a defendant must identify acts or omissions allegedly showing unreasonable professional judgment, and then must show that they had a prejudicial effect on the judgment. Ibid.
A motion to dismiss criminal charges made at the close of the State's case or after all evidence has been given, may be granted only if "the evidence is insufficient to warrant a conviction." R. 3:18-1. The trial judge must deny the motion if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all favorable inferences, "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967).
Here, judged against that standard, it is patently obvious that defendant has failed to meet his burden. Based on the trial record, a motion for a judgment of acquittal would have certainly been denied.
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