On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 10-04-0932 and 10-06-1339.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 6, 2012 --
Before Judges Graves and Koblitz.
After his motion to suppress a handgun was denied, defendant Horece McZeke pled guilty to count seven of Atlantic County Indictment No. 10-04-0932, which charged him with second-degree possession of a handgun by a convicted person in violation of N.J.S.A. 2C:39-7. Defendant also pled guilty to count two of Indictment No. 10-06-1339, which charged him with third-degree possession of cocaine with intent to distribute in violation N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). In accordance with the negotiated plea, defendant was sentenced to a five-year prison term with five years of parole ineligibility for possession of a handgun, and to a concurrent five-year term with twenty-seven months of parole ineligibility for possession of cocaine with intent to distribute.
On appeal, defendant primarily argues that the trial court erred when it denied his motion to suppress the handgun seized from the car he was driving. For the reasons that follow, we affirm.
Three witnesses testified at the suppression hearing on January 4, 2011. The State presented the testimony of Detectives Daniel Corcoran and Anthony Abrams of the Atlantic City Police Department, and Latoya Sullivan testified for the defense.
According to the State's proofs, Corcoran and Abrams were assigned to the vice unit on October 23, 2009, working the 5:00 p.m. to 1:00 a.m. shift. A third detective, Jefferson Rivera, was also with them. The detectives were in plain clothes, in an unmarked vehicle, with Corcoran driving. Corcoran testified they were in the area of Indiana Avenue and Hummock Avenue, when they noticed a gray Nissan parked on the side of the road. Defendant, the driver of the Nissan, was speaking to another individual. Corcoran recognized the man standing outside the vehicle as Shahied Hamilton, who had been "arrested numerous times in the City for CDS offenses as well as weapons offenses." Corcoran also testified that Hamilton was "a person of interest in regards to some shootings."
Corcoran was driving around the block while "running [Hamilton] for warrants" when he saw the Nissan go through a stop sign at the intersection of Ohio Avenue and Hummock Avenue. Corcoran testified the Nissan "came whipping in front of my vehicle," and he slammed on his brakes to avoid hitting the Nissan. Corcoran then activated his lights and sirens and proceeded to stop the Nissan.
Following the stop, Abrams approached the driver's side of the vehicle, Rivera approached the passenger side, and Corcoran stood towards the rear of the vehicle on the driver's side. Abrams testified that as he approached the car, he observed defendant reach his left hand down towards the floor of the car. After defendant opened his window, Abrams's first words to him were, "You almost killed us." Defendant said, "Sorry," and Abrams asked for his credentials. At that point, defendant "reached down again" and Abrams testified he "could tell" that defendant was nervous.
When Abrams asked defendant to exit the car, defendant "said he didn't have to," and Abrams observed that defendant's "hand was down by the [floor] again." In addition, Abrams testified that defendant was "attempting to conceal" something on the car floor by pushing it with the heel of his left foot.
Abrams then ordered defendant out of the car. As defendant stepped out, Abrams observed "a small handgun" on the floor of the car in the area where defendant had been reaching and pushing with his left foot. Abrams testified the floor of the vehicle was raised under the driver's seat and that may have made it more difficult for defendant to push the handgun under the driver's seat.
Latoya Sullivan also testified at the suppression hearing. She stated that defendant was her sister's fiance. She also testified that defendant was in her sister's car at approximately 5:30 p.m. on October 23, 2009, when she stopped to talk to him. According to Sullivan, defendant was driving directly behind her when she started driving home because they were both going in the same direction. Sullivan testified they were traveling at about twenty-five to thirty miles per hour, and they both stopped at the stop sign before proceeding through the intersection at Ohio Avenue and Hammock Avenue.
In an oral decision on January 28, 2011, the trial court denied defendant's suppression motion. The court found the officers were credible, and the motor vehicle stop was lawful because defendant failed to stop at the stop sign located at the intersection of Ohio Avenue and Hummock Avenue. The court also found that the ...