On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-12-2353.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Haas.
After the trial court denied his motion to suppress evidence in connection with Monmouth County Indictment No. 09-12-2353, defendant Kenneth M. Valdes pled guilty to two counts of third-degree burglary. N.J.S.A. 2C:18-2. Pursuant to a plea agreement, the remaining two counts of burglary, two counts of theft and one count of possession of a controlled dangerous substance were dismissed. Also pursuant to the plea agreement, defendant was sentenced to a probationary period. Defendant appeals from the judgment of conviction entered on September 24, 2010. After reviewing the record in light of the contentions advanced on appeal, we affirm the denial of the motion to suppress and remand only for a correction of the judgment of conviction.
The suppression hearing revealed the following facts. At 7:15 a.m. on September 30, 2009, Marlboro Township Police Officer Brian Hammarstrom was dispatched to investigate a car burglary reported by the daughter of the car owner. She described the burglar to the 9-1-1 operator as a young, clean-shaven white man, between the ages of twenty and twenty-five, wearing glasses, a baseball cap, a dark sweatshirt and dark pants, and carrying a backpack. When the witness confronted the young man, he fled on foot.
Fifteen minutes after the burglary report, Hammarstrom arrived at the nearby Cambridge Square shopping plaza, which was situated in the direction the burglar was reported to have fled. There he observed defendant, a young white man, approximately twenty years old, wearing a dark blue sweatshirt and jeans and carrying a computer bag diagonally across his body with the bag portion on his back. He appeared clean-shaven, although on closer inspection he had a thin, "chin strap" strip of facial hair. Hammarstrom approached defendant and "asked him what was going on." Defendant appeared nervous and "fidgety." Hammarstrom asked for identification and observed that defendant had a baseball cap tucked into the hood of his sweatshirt. Both of his pants' legs were wet at the bottom. Defendant said he had walked from a friend's house, a route that would have taken him past the scene of the burglary. After another officer arrived, defendant provided identification. Defendant was then asked to put his hands on the patrol car for the officers' protection, at which time he became argumentative and "took an aggressive stance that was almost like a boxer stance or . . . fighting stance." Hammarstrom then noticed a large bulge in his left rear pocket.
Concerned for their safety, the other officer at the scene, Officer Timothy Snyder, patted down defendant and found a pill bottle. As soon as Snyder found the bottle, defendant exclaimed, "Oh, my God, I'm in a lot of trouble." The bottle had no label and contained a glassine bag. Hammarstrom asked defendant what the pill bottle contained and defendant replied "Xanax." When asked if he had a prescription, defendant said no. Defendant was placed under arrest for possession of the Xanax. Various other items, including coins, jewelry and electronic equipment were found on defendant's person and in his bag.
When the eyewitness was brought to the arrest location, she was unable to identify defendant as the burglar.
Defendant raises the following issues on appeal:
POINT I: DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.