On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-12-02389.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2012 -
Before Judges A. A. Rodriguez, Ashrafi and Fasciale.
Following the denial of defendant Anthony J. Lodespoto's motion to suppress evidence, he entered a guilty plea to fourth-degree possession of marijuana involving a quantity in excess of fifty grams, N.J.S.A. 2C:35-10a(3). In exchange for the guilty plea, the State agreed to dismiss a disorderly persons offense, to recommend a non-custodial sentence, and to set a "long" sentence date in order to accommodate defendant's employment schedule.
The judge found three of the aggravating factors set by N.J.S.A. 2C:44-1(a): (3) the risk that the defendant will commit another offense; (6) the extent of the defendant's prior criminal record and the seriousness of the offenses of which he was convicted; and (9) the need for deterring the defendant and others from violating the law. The judge also found two of the mitigating factors listed in N.J.S.A. 2C:44-1(b): (7) the defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense; and (10) the defendant is particularly likely to respond affirmatively to probationary treatment. The judge imposed an eighteen-month probationary sentence.
This is a summary of the evidence presented at a hearing on the motion to suppress. The sole witness was Neptune Township Police Officer Paul Monahan, who testified that on August 7, 2009, he was working in an undercover capacity in an unmarked vehicle at a liquor store parking lot on Asbury Avenue. He saw a man, later determined to be defendant, sitting inside a Honda Civic in the rear section of the parking lot. Monahan did not see defendant enter or exit the vehicle. Monahan moved his vehicle and parked it fifty feet from the Civic. Then, a light-skinned African-American man driving a beige vehicle entered the parking lot, parked and approached the passenger window of the Civic.
According to Monahan, after a brief conversation, defendant handed something to the African-American man. The encounter lasted a few seconds. The African-American man walked away from the Civic, went to his car and retrieved a cell phone. Then he made a call. Shortly thereafter, a Chevrolet Trailblazer entered the parking lot. The African-American man had a conversation with an occupant of the Trailblazer. A package was exchanged. The African-American man delivered the package to defendant. The Civic exited the parking lot.
Monahan reported his observation and the Civic's license plate to a back-up team. Monahan followed the Civic, activated his overhead lights and stopped the Civic.
According to Monahan, defendant appeared to be nervous and trembling as Monahan approached him. Monahan testified at the hearing on the motion to suppress as follows:
[DEFENSE ATTORNEY]: When you made contact, what's the first thing you said to him as you got to the window? [MONAHAN]: I identified myself as a Neptune police officer and then requested his license, registration, and insurance.
Q. Did he attempt to get that documentation for you?
A. Yeah, he gathered it together.
Q. And did you make any observation as to his demeanor as he was doing this?
A. When he handed it to me, he was trembling, shaking nervously, it looked like.
Q. Is it usual for someone to be nervous when they get pulled over by a police officer?
Q. Was there anything unusual ...