May 14, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CLEVIN A. PITTMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-03-00254.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2012
Before Judges Baxter and Maven.
Following denial of motions to suppress, to dismiss the indictment, and to compel a Wade Hearing,*fn1 defendant Clevin Pittman entered a plea of guilty to third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; third-degree terroristic threats, N.J.S.A. 2C:12-3a and N.J.S.A. 2C:12-3b; and third-degree aggravated assault, N.J.S.A. 2C:12-1b(5). Defendant was sentenced in accordance with the plea agreement to concurrent terms of four years imprisonment with a two-year period of parole ineligibility, together with mandated fines and penalties. The remaining charges were dismissed. Defendant appeals from his judgment of conviction. We affirm.
These are the facts adduced at the motion hearing. Defendant, armed with a BB gun, went to the diner where he worked. During an argument with his boss, Alexis Manolakis, defendant threatened to kill him. In a subsequent conversation with a co-worker, defendant told her that he wanted to kill the boss, then opened his coat and showed her the BB gun. Defendant left the diner and rode away on his bicycle.
Sergeant John Cook testified that he was patrolling the area near the diner when he received the radio dispatch of a 9-1-1 call reporting that an employee threatened to kill someone at the diner with a handgun. The dispatch operator described the suspect as a black male named Clevin, who was wearing a dark hoodie and traveling away from the diner on a bicycle. Sergeant Cook reached defendant within forty-five seconds of the call, stopped him and asked for his name. After confirming his identity, Sergeant Cook and another responding officer told defendant to place his hands on his head. At first defendant complied, but he then began to lower his hands after being ordered to cease doing so. Knowing that a weapon was involved, the officers "rushed" toward defendant and each secured one of defendant's hands. Sergeant Cook performed a pat-down of defendant for their safety by putting his hands around the front of defendant's waistband, and running his hands from the front to the back. Based on his experience as a firearms instructor, Sergeant Cook felt what he knew to be a handgun in the jacket pocket.
As defendant was getting out of the patrol car at the police department, he kicked the car door which, in turn, hit Sergeant Cook. Once in the police department, defendant told another police officer that she was going to meet a horrible death at his hands.
Defendant sought to suppress the BB gun on the grounds that it was recovered as a result of an unlawful search and seizure. Defendant challenged Sergeant Cook's ability to identify him, the basis of the stop and the reasonableness of the search. During his testimony, defendant disputed that Sergeant Cook could see the hoodie under the jacket he was wearing. He reasoned that he wore a blue and white jacket over the hoodie to bundle up against the winter cold. He also claimed that he was not wearing the hood on his head because it could block his view as he rode his bicycle.
While denying that he threatened to kill his boss with a gun,
defendant argued that the failure of the police to produce the
recording of Manolakis's 9-1-1 call, as he requested, prevented him
and the court from knowing what was actually reported.*fn2
In particular, he claimed the recording could have contained
information regarding the alleged terroristic threat made against
Manolakis, and could have been critical evidence in light of
Manolakis's later statements to police in which he purportedly denied
seeing a gun. Defendant questioned how the
police would know to pat him down and search for a gun if Manolakis
had not seen a gun.
On cross-examination, defendant acknowledged that he had been drinking beer all day, from morning until he went to the diner between 5:30 and 6:00 pm. He claimed that his drinking did not contribute to the argument he had with his boss or provoke him to threaten to kill anyone.
The court found Sergeant Cook more credible than defendant regarding the facts of the incident. The court accepted that a 9-1-1 call was made to the police department, as referenced in Sergeant Cook's police report, reporting "that a black man named Clevin, who worked at the diner, had threatened to kill him with a handgun." The radio dispatch call resulted in several police officers responding to the scene, which supports Sergeant Cook's version of events that a 9-1-1 call was made and an accurate description of the suspect was provided to police. Defendant's description of his clothing did not detract from the credible description relayed by the dispatcher.
Having determined that Sergeant Cook was a credible witness, the court addressed the nature of the stop. The court recognized that a warrantless search would be permissible if it was incident to a lawful arrest based on probable cause. Probable cause for the stop was found based upon Sergeant Cook's testimony that the radio dispatcher provided an accurate description of defendant, who was alleged to have committed a crime; that defendant answered to the unique name of Clevin; and that he was the only black man who matched the description provided by the dispatcher, on a bike wearing a hoodie in the area of the diner. The stop was determined to be lawful.
The search that followed was incident to a lawful stop. The court concluded that the pat-down search was conducted by Sergeant Cook to ensure the safety of the officers, particularly after defendant lowered his hands from his head against police orders. The extent of the search was deemed reasonable in light of Sergeant Cook's knowledge and belief that a handgun was involved in the incident at the diner. After considering the credibility of the witnesses and their testimony, the court denied the motion to suppress the BB gun.
The court then addressed defendant's motion for a Wade hearing. The State asserted that there was no identification procedure used by the police, so there is no basis for a Wade hearing. The court noted that a Wade issue is generally presented where there is a question relating to the reliability of an identification procedure done by the State or the police. The identification of defendant took place at the time of apprehension by confirming his name. No other identification procedures were used by the police. The motion was denied on that basis.
Lastly, the court considered the motion to dismiss the indictment in which defendant asserted prosecutorial error for failing to present statements of two witnesses regarding defendant's intoxication as exculpatory evidence. The court noted that defendant had the burden to challenge the sufficiency of the evidence in the indictment; that the State must present some evidence of each element of the crime; and any excluded evidence alleged by defendant must be so clearly exculpatory that it would have negated the element of purposely and knowingly. The court determined that the witnesses' statements were properly presented to the grand jury by the prosecutor. Further, even if their respective statements included observation of alcohol on defendant's breath, in light of defendant's testimony that alcohol had nothing to do with the incident at the diner, and his denial of being drunk or influenced by alcohol, the court found their statements were not exculpatory. Ultimately, the court denied the motion finding that the evidence presented to the grand jury that a black male named Clevin, wearing a hoodie, made threats to an individual in a diner on Route 22 and then fled on a bicycle. Shortly thereafter a black male named Clevin, wearing a hoodie, is [sic] found on a bicycle a short distance away from that diner. He was also found to be possessing a handgun[,] was sufficient to establish each element of the crime.
On appeal, defendant raises the following issues:
THE TRIAL COURT ERRED IN DENYING MR. PITTMAN'S MOTION TO SUPPRESS EVIDENCE.
THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION TO DISMISS THE INDICTMENT.
THE COURT SHOULD NOT HAVE ACCEPTED MR. PITTMAN'S GUILTY PLEAS BECAUSE THE RECORD REFLECTS THAT MR. PITTMAN'S DECISION TO PLEAD GUILTY WAS NOT VOLUNTARY (NOT RAISED BELOW).
THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. PITTMAN (NOT RAISED BELOW).
In his pro se supplemental brief, defendant raises the claim that, "The prosecutor provided no evidence that I assaulted or threatened anyone."
Defendant asserts that the court erred by not suppressing the BB gun on the ground that it was recovered as a result of an unlawful search and seizure. He claims that the police search was more intrusive than the cursory frisk sanctioned by Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85, 20 L. Ed. 2d 889, 911 (1968). We disagree.
We first set forth our standard of review. Factual findings made by a trial judge during a suppression hearing are upheld "so long as those findings are supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (citing State v. Elders, 192 N.J. 224, 243 (2007)) (internal quotation marks and citations omitted). Such factual determinations will not be disturbed, even if an opportunity for independent review could lead to a different conclusion. State v. Johnson, 42 N.J. 146, 162 (1964). We "must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Mann, 203 N.J. 328, 336-37 (2010) (alteration in original) (quoting Johnson, supra, 42 N.J. at 161).
Turning now to Sergeant Cook's stop and detention of defendant, we recognize that "[a] police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). An investigatory stop is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. Id. at 355-56; see also Terry, supra, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904. In this case, the police received a 9-1-1 call that identified defendant by a unique name and described his clothing and mode of travel. Sergeant Cook encountered defendant within forty-five seconds of receiving the call and defendant confirmed his name. Once defendant's identity was confirmed, police placed him under arrest by ordering him to place his hands on his head and later restraining his hands in handcuffs. The trial court found that sufficient evidence was presented to establish probable cause for the arrest. We conclude that the record supports the court's finding of probable cause.
Next, we consider whether the extent of the search was appropriate. The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, and to pat him down for the officer's safety, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906).
The safety concern for the officers, heightened when defendant began lowering his hands against orders, coupled with the reported involvement of a handgun, constitutes specific articulable facts which justify this pat-down search. Our review of the record reveals sufficient credible evidence to support those findings. Defendant's objection to the search as too aggressive does not negate the legality of the search. We discern no reason to disturb the judge's factual findings.
Defendant claims that the trial court erred in denying the motion to dismiss the indictment. We disagree. The law is clear. By entering an unconditional plea, defendant waived the right to appeal the denial of his motion to dismiss the indictment. R. 3:9-3(f); State v. Knight, 183 N.J. 449, 471 (2005).
Nevertheless, defendant's contention is lacking in merit. A decision on whether to dismiss an indictment is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. State v. Warmbrun, 277 N.J. Super. 51, 59-60 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). An indictment should be dismissed only on the ground where it is manifestly deficient or palpably defective. State v. Hogan, 144 N.J. 216, 228-29 (1996) (internal citations and quotations omitted). "This standard can be satisfied by showing that the grand jury would have reached a different result but for the prosecutor's error." State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635 (2001).
The argument raised on appeal is the same as those addressed by the trial court. The court found that the mere fact that defendant smelled of alcohol or consumed some alcohol would not be "so clearly exculpatory" as to alter the jurors' decision or negate guilt. See Hogan, supra, 144 N.J. at 237. Further, defendant acknowledged at the motion hearing that his consumption of alcohol had nothing to do with the altercation and encounters at the diner. Defendant has not presented any additional argument or shown any palpable defect in the grand jury proceeding to warrant reversal. We defer to the findings of the trial judge and conclude that there was no abuse of discretion in denying the motion to dismiss the indictment.
Defendant also challenges the voluntariness of the guilty plea. This argument, raised for the first time on appeal, has no merit.
We consider a claim that a judge erroneously accepted a guilty plea to be "tantamount" to a request to withdraw a plea after sentencing. A motion to withdraw a plea after sentencing should be granted only to correct a manifest injustice. R. 3:21-1; State v. Fischer, 38 N.J. 40, 48 (1962); State v. Deutsch, 34 N.J. 190, 198 (1961).
A defendant's representations "at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a 'formidable barrier' which defendant must overcome before he will be allowed to withdraw his plea." State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977)). This is because "'[s]olemn declarations in open court carry a strong presumption of verity.'" Ibid. (quoting State v. DiFrisco, 137 N.J. 434, 452 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)).
When the court reviewed the plea agreement form with defendant, he initially indicated he would plead guilty to only one of the three charges believing that the State agreed to dismiss the remaining charges. Although the plea agreement was explained to defendant again, based on defendant's initial unwillingness to accept the plea agreement, the court began to place the case on the trial list. As defendant insisted that he wanted to plead guilty, the following exchange took place:
THE COURT: Okay. Okay, and you went over this with your lawyer, right?
THE DEFENDANT: He -- he says something -- I was talking to the lawyer, but the thing was I was under the assumption, because he sent me a letter all charges dismissed except for possession of a BB gun. When he came back there and told me all these time and this and that, four with a two, I said okay, I would take the four with a two. That was for possession of a BB gun. I admit -- I admit to that. The rest of the stuff I did not do that.
THE COURT: Okay. We'll put it on the trial list then. Do we have the trial list papers filled out?
THE DEFENDANT: The what?
THE COURT: We'll put it on the trial list. THE DEFENDANT: Wait a minute, wait a minute, wait a minute, wait a minute. I'm here --THE COURT: Sir, either you plead or you don't plead. It doesn't make a difference to me.
THE DEFENDANT: I plead, I plead, I plead. THE COURT: You don't have to plead.
THE DEFENDANT: I plead. I think it's --THE COURT: Put it on the trial list, we'll try the case.
THE DEFENDANT: I'll plead guilty to it, Your Honor.
THE COURT: You might win. You might get lucky. You might walk.
THE DEFENDANT: I'll plead guilty to it, Your Honor.
THE COURT: No, listen, don't plead guilty for convenience if you're not guilty. That's the whole point of this. I have papers that you signed, you initialed, that says you want to plead guilty to unlawful possession of a weapon, terroristic threats and aggravated assault on the officer. Is that what you're doing or no?
THE DEFENDANT: I have to plead guilty to it. I have to.
THE COURT: You don't have to do anything.
THE DEFENDANT: I have to because I cannot take a chance to go to trial with this lawyer. I have to go, so I'll plead guilty to it.
THE COURT: Well, you've had more than one lawyer. I mean --THE DEFENDANT: I'll -- I'll plead guilty to it, Judge.
THE COURT: Well, listen, the -- the way these papers are read -- and I just want to make sure -- are you on any medication today that might prevent you from understanding what you're doing?
THE DEFENDANT: I'm not on nothing. I'll plead guilty to it.
THE COURT: Are you on any -- any other kind of drugs or under any emotional stress that might prevent you --THE DEFENDANT: I'm under a lot of stress.
THE COURT: -- that might prevent you from understanding what you're doing?
THE DEFENDANT: I'm under a lot of stress but I have to plead guilty to it.
THE COURT: But do you understand what you're doing?
THE DEFENDANT: Basically. It was -- it was -THE COURT: Basically.
THE DEFENDANT: I'll plead guilty to it, Judge.
THE COURT: Is that yes, you understand what you're doing?
THE DEFENDANT: I'll plead -- Yes, I'll plead guilty to it.
As the court questioned defendant about the recommended sentences, defendant clearly understood the agreement and stated, "Yes, but the plea offer is four with a two, correct?" Finally, defendant sought clarification from the judge and prosecutor on whether pleading guilty to assault and terroristic threats would affect his opportunity for admission to a halfway house. The court explained that neither he nor counsel have an answer to the question and asked defendant, "Would you rather not plead guilty and wait until you get an answer to that question?" Defendant responded, "No, sir, I'm going to still take the plea."
Any hesitancy defendant expressed was negated by his continued insistence to plead guilty. The court provided him an opportunity to proceed to trial and offered to delay the plea.
In the end, defendant acknowledged that he understood the plea and the legal ramifications thereof. There is no manifest injustice to defendant in this case. We are satisfied that the trial court followed the dictates of Rule 3:9-2 and conclude that the guilty plea was voluntary.
Lastly, we address defendant's sentence, which he claims is excessive. Defendant asserts that the aggravating factors were unsupported by credible evidence and the court erred by not considering any mitigating factors. Again, we disagree with defendant.
A judge is obligated to consider aggravating and mitigating factors for the purpose of imposing fair and uniform sentences. State v. Cassady, 198 N.J. 165, 180 (2009). The judge's findings on these factors must be supported by competent evidence in the record. State v. Blackmon, 202 N.J. 283, 296-97 (2010). However, the weight attributed to each factor lies within the discretion of the sentencing court. State v. Dalziel, 182 N.J. 494, 504-05 (2005). Appellate courts only retain authority to modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).
The sentencing judge found that aggravating factors N.J.S.A. 2C:44-1a(3), "[t]he risk that the defendant will commit another offense"; N.J.S.A. 2C:44-1a(6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"; and N.J.S.A. 2C:44-1a(9), "[t]he need for deterring the defendant and others from violating the law," were reasonable given the facts of the case. Defendant has four prior felony convictions from Virginia, including trespassing, possession of a controlled dangerous substance, forgery, and assault and battery, which supported the finding of a reasonable risk that he will commit another offense and the need to deter others from illegally possessing firearms. Although the court noted some cooperation by defendant, there was no evidence to reflect the extent of defendant's cooperation to support the application of mitigation factor twelve, N.J.S.A. 2C:44-1b(12), "[t]he willingness of the defendant to cooperate with law enforcement authorities." Defendant argues that the court should have found mitigating factor eleven, N.J.S.A. 2C:44-1b(11), "[t]he imprisonment of the defendant would entail excessive hardship for himself or his dependents." In support of his claim, defendant referenced the letter sent to the court from his mother and cousins indicating their desire to have him home. Defendant does not provide proof that he supports these family members or that they are his dependents. The separation from his family does not amount to "serious injustice" to overcome the presumption of imprisonment. The finding that the aggravating factors outweighed the non-existing mitigating factors is supported by the record. We discern no abuse of discretion in this sentence.
The remaining claim raised by defendant in his pro se submission regarding the lack of medical reports to support the aggravated assault charge is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).