July 5, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HORECE MCZEKE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 handgun was lawfully seized because it was in plain view on the floor of the vehicle.
Defendant presents the following arguments on appeal:
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.
A. THERE WAS NOT SUFFICIENT CREDIBLE EVIDENCE THAT THE MOTOR VEHICLE STOP WAS SUPPORTED BY PROBABLE CAUSE OR REASONABLE SUSPICION.
B. THERE WAS NOT SUFFICIENT CREDIBLE EVIDENCE THAT THE POLICE OBSERVED A HANDGUN IN PLAIN VIEW.
THE TRIAL JUDGE ERRED IN REFUSING TO ALLOW DEFENDANT TO OBTAIN EXCULPATORY EVIDENCE.
A. THE PROSECUTOR FAILED TO DISCLOSE EXCULPATORY EVIDENCE WHICH WAS IN POSSESSION/UNDER THE CONTROL OF THE NEW JERSEY PAROLE BOARD.
B. THE EVIDENCE SOUGHT IS FAVORABLE TO DEFENDANT AND WOULD SHOW THAT THERE WAS NO PROBABLE CAUSE/REASONABLE SUSPICION FOR THE MOTOR VEHICLE STOP.
C. THE EVIDENCE SOUGHT BY DEFENDANT WAS MATERIAL AND IF DISCLOSED, DEFENDANT WOULD NOT HAVE PLED GUILTY.
We conclude from our review of the record and the applicable law that these arguments are without merit, Rule 2:11-3(e)(2), and require only the following discussion.
"[A] police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Locurto, 157 N.J. 463, 470 (1999) (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). "To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor-vehicle violation occurred." Ibid. Rather, the State must establish that the officer making the stop had an objectively reasonable suspicion that the defendant committed a motor vehicle offense. State v. Pitcher, 379 N.J. Super. 308, 315-16 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).
In the present matter, the trial court found that the police had an objectively reasonable basis for stopping the vehicle defendant was driving because he failed to stop at a stop sign. The court also found that the handgun was lawfully seized because it was in plain view on the floor of the vehicle. Those findings are supported by sufficient credible evidence in the record, and the order denying defendant's suppression motion is affirmed. See State v. Bruzzese, 94 N.J. 210, 237 (1983) ("We do not believe that a police officer lawfully in the viewing area must close his eyes to suspicious evidence in plain view."), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
Defendant also argues the trial court "erred in refusing to allow [him] to obtain exculpatory evidence," which he describes as "live-feed media" from his GPS ankle bracelet.*fn1 A due process violation occurs when the State fails to provide upon request evidence "favorable to an accused" and "material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963). "[T]o establish a Brady violation, the defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268 (1999) (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972)).
The trial court concluded that this issue was "nothing more than a red herring" because: (1) the State entered into a consent order that required the New Jersey Parole Board to obtain the information defendant requested prior to his plea; and (2) there was no showing by defendant that any GPS data would support his claim that he stopped at the stop sign. Those findings are amply supported by substantial credible evidence in the record, and we find no error or abuse of discretion by the trial court.