On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-02-0413.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 11, 2012
Before Judges Axelrad and Ostrer.
Following denial of his suppression motion, defendant Anthony Kennedy pled guilty to second-degree possession of a controlled dangerous substance (CDS), namely heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2). The plea agreement provided for a mandatory extended term as a repetitive drug offender, N.J.S.A. 2C:43-6f, of fifteen years with a five-year parole disqualifier, with an acknowledgment that defendant would argue for a ten-year term with a five-year parole disqualifier. On March 19, 2010, the State dismissed the remaining charges of the indictment and Judge Kevin G. Callahan sentenced defendant to a twelve-year extended term with a five-year parole disqualifier. He also imposed appropriate fines and penalties. Defendant appealed, challenging both the denial of his motion to suppress the drugs seized from his car, and his sentence as excessive. We affirm.
Sergeant Timothy O'Brien and Officer Mark Hennessey of the Jersey City Police Department, Violent Crimes Unit, testified at defendant's suppression hearing. Sgt. O'Brien explained that about a month prior to defendant's arrest on December 30, 2008, Officer Hennessey relayed information to the squad that he had received from a confidential informant regarding defendant. The informant alleged that defendant was delivering heroin in certain areas of Jersey City from an older maroon Oldsmobile Cutlass with an identified license plate. Thereafter, while on patrol, he and other officers, including Officer Hennessey, observed the Cutlass illegally parked and jutting into the street. The police approached and asked the driver, who identified himself as defendant, to move the car, but he declined, stating that his license was suspended. The officers never performed a database check to determine the status of defendant's license, nor did they search or arrest him. Instead, defendant agreed to have a licensed driver move the car, and the officers left.
A week or two later, Sgt. O'Brien was on patrol when Officer Hennessey informed the squad that he observed the same Cutlass being operated by defendant and he was going to stop it. Sgt. O'Brien proceeded to the area and observed that Officer Hennessey and another officer had already stopped the car and were talking to defendant. Sgt. O'Brien approached the passenger side of defendant's car. He did not recall the windows being tinted but noted, when he approached the car, the windows were down. He saw "a small multi-colored gift bag, maybe eight to ten inches in height, laying on the side" on the "bench-type" front passenger seat of the car. Inside the bag he observed numerous packages of what he thought were bricks of heroin and one loose bundle on top appearing to contain glassine bags of heroin wrapped in a rubber band. The officer explained that the packages were protruding from the gift bag and wrapped in clear, see-through shrink wrap.
According to the officer, it was dark out, but he did not need to use his flashlight because there was sufficient light provided by the street lights. He informed the other officers of his observation and they placed defendant under arrest. In total, forty-one bricks of heroin, totaling 2,060 bags, were recovered from the passenger seat of defendant's car.
Officer Hennessey corroborated Sgt. O'Brien's testimony regarding the two encounters with defendant. He elaborated upon the information provided by the confidential informant, which matched his initial observations of defendant. When asked on cross-examination why he did not verify that defendant's license was suspended during the first encounter, the officer explained, "[i]f somebody is admitting something to me I think that is good enough[,]" and pointed out, "[i]t is not like he was telling me somebody else was unlicensed."
Officer Hennessey detailed the second encounter, explaining that once he saw the Cutlass with defendant driving, he followed it for about ten blocks while informing his squad that he was planning on conducting a motor vehicle stop. The officer testified that he stopped defendant because his license was suspended, not because of the information provided by the informant. His partner was with him in the patrol car.
After stopping defendant's vehicle, the officer approached the driver's side door of the car, reviewed defendant's credentials, and began to issue him a ticket for driving with a suspended license. Officer Hennessey did not see any tint on the windows. He explained that defendant rolled down the driver's side window when he approached but he was not aware of what defendant did with the passenger window. He further related that Sgt. O'Brien and other backup officers arrived almost instantly; as soon as he stopped defendant, they were in the area. He confirmed that Sgt. O'Brien was on the passenger side of the vehicle. Officer Hennessey arrested defendant and charged him with the drug and related motor vehicle offenses once Sgt. O'Brien indicated that he observed the CDS.
Defense counsel then stated his understanding that the windows of defendant's vehicle were, in fact, tinted and requested permission to take pictures of the vehicle to potentially impeach Officer Hennessey's credibility. Judge Callahan granted this request. At the next scheduled hearing two months later, defense counsel advised that the parties planned to admit pictures of the doors as a joint exhibit but defendant was requesting additional time to obtain an expert to determine whether the tint of the car windows would have affected the officer's ability to see through the tint in the dark. The court granted the request, but a month later, on December 2, 2009, defendant rested without retaining the expert or submitting evidence.
On December 10, 2009, Judge Callahan rendered an oral opinion denying defendant's motion to suppress. He set forth the applicable law, expressly credited the officers' testimony, and found the police had a lawful basis for the motor vehicle stop under the totality of the circumstances. He noted that defendant may have been a person of interest because of the confidential informant's tip, but found the potential illegal criminal activity was not the reason for the motor vehicle stop. The judge explained that the officers recognized defendant from their previous encounter three weeks before in the same general area so they knew he had a suspended license. In fact, the police ultimately charged him with the motor vehicle offense along with the drug charges. Judge Callahan concluded that "the State has given sufficient evidence before the [c]court that this was a motor-vehicle stop because of the -- what the officers knew, both [Sgt.] O'Brien and Officer Hennessey, as they testified, and I find them credible."
The court additionally found the heroin was in a gift bag on the front seat bench of defendant's car in plain view of Sgt. O'Brien and properly seized under that exception to the warrant requirement. Again ...