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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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