April 3, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARRIUS B. VINSON, A/K/A CLINTON ANTHONY HOWELL, ANTHONY HOWELL, BERNARD VINSON VINSON, DARIUS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-09-02159.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 28, 2012
Before Judges J. N. Harris and Haas.
Defendant Darrius B. Vinson pled guilty to third-degree theft, N.J.S.A. 2C:20-3(a); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); and two disorderly persons offenses, after his motion to suppress was denied. At sentencing, the court granted the State's motion for an extended term and imposed an aggregate five-year prison sentence.
Vinson appeals, arguing the following:
POINT I: THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED AS THE STOP OF HIS AUTOMOBILE VIOLATED THE DEFENDANT'S 4TH & 14TH AMENDMENT RIGHTS AS WELL AS ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION. POINT II: THE COURT ABUSED ITS DISCRETION WHEN IT IMPOSED A DISCRETIONARY EXTENDED TERM SENTENCE PURSUANT TO N.J.S.A. 2C:43-7. THIS SENTENCE SHOCKS THE JUDICIAL CONSCIENCE.
On June 6, 2008, Mimi Foster, a loss prevention agent employed by Nordstrom department store at the Freehold Raceway Mall, observed by video surveillance a person she later identified as Vinson acting suspiciously in the young men's department. Foster observed Vinson in possession of three shopping bags: a Coach bag, an Against All Odds bag, and an unidentified bag. Vinson was seen with a confederate, co-defendant Connie Matthews, working together to conceal several garments and place them into one of the shopping bags. Foster then watched as Vinson and Matthews left the store without paying for the merchandise. Another Nordstrom employee, loss prevention manager Amanda Holbert, followed the suspects into the mall's parking lot and saw them enter a motor vehicle with out-of-state license plates.
Freehold Township Police Officer Patrick Cruse was dispatched to the Nordstrom department store to respond to the shoplifting. He met with Foster and Holbert. Officer Cruse was told about the suspects and advised that they were observed leaving the mall in a maroon-colored car with out-of-state license plates. Officer Cruse reviewed a videotape of the events and he confirmed that "the subjects [were] removing merchandise form the shelf and putting it in the Nordstrom's bag." Officer Cruse later stated that he saw the merchandise being put "[i]n a big Coach bag."
On June 6, 2008, Marlboro Township Police Officer Andrew Delcora was on duty. He testified that his dispatcher informed him "[t]o be on the lookout for a shoplifting vehicle. It was . . . believed to be a Chevy, maroon in color, [with] a black male and black female [inside]."*fn1 He indicated that it was "[p]ossibly a Chevy Malibu." While parked on the median of Route 9, Officer Delcora observed a "maroon in color Chevy vehicle, one black male, one black female, with out-of-state plates." It, however, was a "Chevy Impala," not a Malibu.
Officer Delcora entered the highway in the midst of heavy traffic. He testified that "in the area of Route 9 North in the area of Old Bridge by the Walmart . . . the vehicle failed to use a turn signal to change lanes." Consequently, the officer stopped the vehicle "right on the border of Sayreville and Old Bridge" where it pulled into a Sunoco gas station. He approached the vehicle and "[o]bserved a bag in the backseat with clothing in it." Officer Delcora proceeded to call his dispatcher and asked that the Freehold police be contacted about the motor vehicle stop.
Within ten minutes, Officer Cruse and Holbert arrived on the scene. Officer Cruse testified that "we looked in the car and it was them that fit the description on the videotape and them sitting in the car."*fn2 He further "noticed in the rear seat there was a bag, a Nordstrom's bag of the merchandise in the -- the stolen merchandise in the bag in the rear seat." He also saw what he called a "booster bag" in the rear seat of the vehicle, describing it as "an anti-shoplifting device where you put like tinfoil in a bag so it won't trigger the security sensors when you walk out of the store."
Vinson and Matthews were arrested at the scene. While being processed for the theft charges at the Monmouth County Correctional Institution (MCCI), Vinson was found in possession of heroin.
The motion court denied Vinson's motion to suppress the shopping bags seized from the motor vehicle and the illicit drugs found at the MCCI. In a nine-page written opinion, the court found that Officer Delcora had the right to approach the vehicle as part of a lawful motor vehicle stop based on probable cause derived from the observations of the Nordstrom loss prevention agents regarding the defendants' actions[;] Officer Cruse's observations of the video surveillance[;] and [Holbert's] observations regarding the general description of the model, color, and out-of-state license plates of the vehicle in which the defendants left the scene. These observations, taken as a whole, engendered a "well-founded suspicion or belief of guilt" or a "reasonable basis for belief that a crime has been or is being committed" necessary for a finding of probable cause. Furthermore, as officer Delcora possessed both "reasonable suspicion" and "probable cause," which is a more stringent standard than mere reasonable suspicion, the vehicle stop and subsequent approach of the vehicle on foot by that officer was lawful. The discrepancies between a red or maroon Chevrolet Malibu or Impala or a Coach or Nordstrom's shopping bag are insufficient to create an invalid stop or arrest in the "totality" of these circumstances.
The motion court applied the plain view doctrine, see State v. Bruzzese, 94 N.J. 210, 235-36 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), and denied Vinson's motion to suppress. Vinson pled guilty approximately four months later.
At sentencing, the State moved for the imposition of a persistent offender extended term pursuant to N.J.S.A. 2C:44-3(a). The court granted the motion as to the third-degree theft count, and imposed a five-year prison sentence.*fn3 In so doing, the court applied aggravating factors three (the risk that defendant will commit another offense), N.J.S.A. 2C:44-1(a)(3); six (the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted), N.J.S.A. 2C:44-1(a)(6); and nine (the need for deterring defendant and others from violating the law), N.J.S.A. 2C:44-1(a)(9). The court found no applicable mitigating factors, even though Vinson argued for the application of mitigating factors one (defendant's conduct neither caused nor threatened serious harm), N.J.S.A. 2C:44-1(b)(1); two (defendant did not contemplate that his conduct would cause or threaten serious harm), N.J.S.A. 2C:44-1(b)(2); four (substantial grounds exist to excuse or justify defendant's conduct), N.J.S.A. 2C:44-1(b)(4); and six (defendant will compensate the victim), N.J.S.A. 2C:44-1(b)(6). Following the entry of the judgment of conviction, this appeal ensued.
Our review of the Law Division's ruling on a motion to suppress evidence is limited. State v. Robinson, 200 N.J. 1, 15 (2009). 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.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, we afford deference to a trial judge's findings "'which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Davila, 203 N.J. 97, 109-10 (2010) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). However, our review of the motion judge's legal conclusions is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010) (citing State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010), aff'd, 206 N.J. 39 (2011)), certif. denied, 205 N.J. 78 (2011).
We first address the validity of Officer Delcora's motor vehicle stop. A lawful motor vehicle stop must be based on a "reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed." State v. Amelio, 197 N.J. 207, 211 (2008) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). The State bears the burden of establishing by a preponderance of the evidence that it possessed sufficient information to give rise to a reasonable and articulable suspicion. Ibid.
Officer Delcora had sufficient suspicion of a motor vehicle violation to warrant the stop. The evidence clearly supports the motion court's finding that Officer Delcora observed Vinson change lanes without signaling in the context of heavy traffic.*fn4
Accordingly, Officer Delcora had a reasonable and articulable suspicion that the driver committed a motor vehicle violation. Moreover, the information he received about the vehicle's involvement in the Freehold Raceway Mall shoplifting incident was sufficiently reliable to engender his appropriate response. Hearsay may supply the information establishing probable cause, provided it is trustworthy. State v. Sullivan, 169 N.J. 204, 213-14 (2001). Here, the dispatcher relayed information to Officer Delcora from Officer Cruse and Holbert, who had personally observed Vinson's conduct in the Nordstrom department store on the videotape and reported a description of the suspects and their getaway vehicle. Officer Delcora's actions were entirely unremarkable and consonant with Fourth Amendment jurisprudence.
Next, we turn to the observations of the shopping bags and their contents in Vinson's car. Once Vinson's car was lawfully stopped, the police officers were lawfully entitled to look inside the vehicle through the glass. Their observations of the shopping bags and their contents in plain view entitled the officers to seize the evidence. The motion court's findings are amply supported by the record, and we are satisfied the matter was correctly decided. See Bruzzese, supra, 94 N.J. at 237 ("We do not believe that a police officer lawfully in the viewing area must close his eyes to the suspicious evidence in plain view.").*fn5
Lastly, Vinson contends that notwithstanding his eligibility for an extended term as a persistent offender, and regardless of the fact that the five-year term was within the appropriate sentencing range, the imposition of an aggregate sentence of five years is conscience-shocking. We find no errors in the manner of imposing the sentence and its duration is entirely consistent with sentencing jurisprudence.
The New Jersey Code of Criminal Justice prescribes a "system for 'structured discretion' in sentencing." State v. Bieniek, 200 N.J. 601, 607 (2010). Our review of a sentence is guided by State v. Roth, 95 N.J. 334, 364-65 (1984) and subsequent decisional law, which look to whether: (1) the sentencing guidelines were violated, (2) the aggravating and mitigating factors were based upon competent credible evidence in the record, and (3) the sentence is so clearly unreasonable as to shock the judicial conscience. In reviewing a sentence, we "may not substitute [our] judgment for that of the trial court." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Evers, 175 N.J. 355, 386 (2003)). In Cassady, the Court held:
An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience. [Ibid. (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989) (citations omitted)).]
Vinson argues that the sentencing judge misapplied the aggravating and mitigating factors. The record amply supports all of the sentencing judge's findings and conclusions. We discern no support in the record for any mitigating factors. See State v. Miller, 205 N.J. 109, 127 (2011).