October 4, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY J. LODESPOTO, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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?
A. It's common, yeah.
Q. Was there anything unusual about this?
A. It was a little more drastic. He was trembling a little more severe.
Q. Did you ask him about that?
A. Yes, I did.
Q. What did you say to him?
A. I asked him why he was shaking, why he was trem -- why he was shaking, his hands were shaking.
Q. Did he respond to you?
A. He said he was a little nervous about being pulled over.
Q. What was your response to that?
A. I asked him if it had anything to do with the bag he received at the Discount Liquor parking lot.
Q. What was his reaction to that question?
A. He looked stunned but he didn't answer me.
Q. What was your tone of voice when you did this?
A. Just like this. [THE COURT:] He's speaking in a
[THE WITNESS:] Yes.
Q. Now, did he ever verbally respond to you at that time when you asked him -- when you made that comment to him about the black bag?
A. First time, no.
Q. What did you do then?
A. I asked him where the black bag was that he received from the guy in the parking lot.
Q. Did he respond to that?
Q. Did you ever explain to him what observations you made while you were set up in surveillance at the [parking lot]?
Q. When did you do that?
A. Right the next statement pretty much, told him --
Q. Do you recall what you said to him?
A. Yeah, I told him I knew what -- I -- I watched the transaction, which I believed to be a narcotics transaction in the parking lot and . . .
Q. Did you ever ask him for the bag or make any comment to him about the bag?
A. Yes. I asked him if that bag contained narcotics, to turn it over to me.
Q. What did he do after you asked that question?
A. He complied, he turned to his center console, opened it, and turned it right over.
The judge found that Monahan was a credible witness and was justified in conducting an investigatory stop. The judge also concluded that Monahan had probable cause to search and arrest defendant even prior to asking any questions.
On appeal, defendant contends that:
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE EVIDENCE SEIZED AS A RESULT OF THE WARRANTLESS SEARCH OF DEFENDANT'S AUTOMOBILE AS OFFICER MONAHAN LACKED PROBABLE CAUSE TO CONDUCT THE SEARCH.
We reject this contention.
At the outset, we note our disagreement with the State's argument that defendant did not preserve his right to appeal the denial of his motion to suppress. See R. 3:5-7(d). Therefore, the issue is properly before us.
Our analysis begins by noting that the judge credited Monahan's testimony. We must give deference to this finding because the judge has the ability to see and hear the witnesses as they testify. State v. Johnson, 42 N.J. 146, 161 (1964). Moreover, we do not assess the credibility of witnesses' evidence. State v. Barone, 147 N.J. 599, 615 (1997). Rather, we must accept the findings made if they could reasonably have been reached on sufficient or substantial credible evidence present in the record considering the proofs as a whole. Ibid.
Therefore, accepting Monahan's testimony as truthful, we make the following analysis. First, the interaction between Monahan and defendant after the Civic was stopped was simply an investigatory stop. It was not a custodial interrogation. During that interaction, Monahan revealed to defendant that he had been observing him since the Civic was parked at the liquor store lot. Monahan also intimated that defendant had received a bag during an exchange in the parking lot with an African-American male. This surprised defendant, who became alarmed and nervous. Then Monahan asked for the bag to be turned over to him. Defendant complied. To be sure, defendant turned over the bag in response to a question. However, this questioning under the circumstances described by Monahan did not require providing defendant with Miranda*fn1 warnings. Therefore, there is no legal requirement to suppress the bag.
Had this been a custodial interrogation, it is clear that Monahan would have had a duty to advise defendant of the Miranda warnings. However, Miranda warnings are only required before a "custodial interrogation," which is defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706; State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005); State v. Graves, 60 N.J. 441, 447 (1972). That is so "because a police officer's questioning is accusatory in nature or designed to elicit incriminating evidence." State v. Hickman, 335 N.J. Super. 623, 631 (2000).
On the other hand, a Miranda warning is not required before "[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process." Smith, supra, 374 N.J. Super. at 430 (quoting Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725). We have held that Miranda warnings were not required when an officer told defendant he looked nervous and asked whether he had any contraband. Hickman, supra, 335 N.J. Super. at 631. We concluded that defendant was not in custody because "a reasonable innocent person in defendant's position would not have perceived simply from this inquiry that he would be detained beyond the time required to complete the motor vehicle stop." Id. at 631-32; see also State v. Toro, 229 N.J. Super. 215, 221 (App. Div. 1988) (holding defendant was not in custody where defendant was not told he was under arrest, not handcuffed, not subjected to any search beyond a pat-down, and defendant was only briefly detained before he was asked about the contents of a package at his feet), overruled on other grounds by State v. Velez, 119 N.J. 185 (1990). Only when the roadside questioning imposes a restraint on freedom of movement akin to a formal arrest are Miranda warnings required. Smith, supra, 374 N.J. Super. at 430 (citing Yarborough v. Alvarado, 541 U.S. 652, 663, 124 S. Ct. 2140, 2149, 158 L. Ed. 2d 938, 951 (2004)).
Defendant also contends:
THE TRIAL JUDGE ERRED IN SENTENCING DEFENDANT AS THE PUNISHMENT WAS CREATED FOR THE CRIMINAL, RATHER THAN THE CRIME.
As for the sentence, from our careful review of the record, we conclude that the judge erred in finding aggravating factor six (extent and seriousness of defendant's criminal record) simultaneously with mitigating factor seven (no history of delinquency or criminal activity), but that error had no effect on defendant's non-custodial sentence of probation. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).