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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...