On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 10-05-0056 and 09-10-1188.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued September 5, 2012
Before Judges Alvarez, Nugent and Ostrer.
Following denial of his motion to suppress evidence seized from a warrantless search of an automobile, defendant Henry Lotero pleaded guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5. He also entered a plea to third-degree aggravated assault under a separate preceding indictment. Pursuant to the agreement, the court sentenced defendant to a term of five years, with a three-year period of parole ineligibility on the weapons offense, and a three-year concurrent term on the aggravated assault. Upon the State's motion, the court dismissed the remaining charges against defendant, including charges of possession of a weapon, and possession of a weapon for an unlawful purpose under the preceding indictment.
Defendant now appeals from the denial of his suppression motion, and challenges his sentence as excessive. We affirm.
The sole witness at the suppression hearing was Sergeant Anthony Damiano, a Passaic County Sheriff's Officer on loan to the New Jersey State Police Gang Unit. The record evidence reflects the following:
Sergeant Damiano and his partner, Officer Brian Whitesman, were conducting undercover surveillance from a stationary, unmarked Dodge Caravan in the area of 10th Avenue and 27th Street in Paterson on Friday, March 27, 2009. Two other surveillance units were in the area, one manned by Detective Mark Hanselman and Detective Sergeant Mike Clifford, and the other occupied by Officer Ty Coronado.
At about 3:50 p.m., Sergeant Damiano observed a blue Aztec, an SUV-type vehicle, travel fast up 11th Avenue, almost strike another vehicle, swerve around it, pass the Caravan, and speed down a hill toward a school at what the sergeant estimated to be sixty m.p.h. Sergeant Damiano alerted other surveillance units that he was going to follow the Aztec and try to conduct a motor vehicle stop. The sergeant's vehicle was equipped with a strobe, but no siren or emergency lights. The sergeant was in the driver's seat and Officer Whitesman was in the passenger seat.
The sergeant caught up to the Aztec traveling southbound on Route 20, while keeping other units advised of his location. He continued his pursuit as the Aztec entered Route 80 westbound. Sergeant Damiano could observe three, maybe four occupants.
The Hanselman-Clifford unit, a Nissan Altima, was the only one of the three police vehicles equipped with a siren and emergency lights, which were mounted behind the windshield, but not on the roof. It approached from behind. Meanwhile, Sergeant Damiano pulled to the left of the Aztec.
Once Detective Hanselman activated his lights and sirens, Sergeant Damiano was "right alongside" the Aztec, and "could see perfectly" that the occupants "all started panicking in the vehicle." "At one point, there was an object passed from the back seat to the front seat, and the . . . front seat passenger opened the glove box, places it, and closes the glove box." The sergeant said he was able to make these observations because the highway lanes were pretty narrow, he was right next to the Aztec, the Caravan was slightly higher than a regular car, and the Aztec's driver's windows were untinted, although the Caravan's windows were tinted. Sergeant Damiano believed the item placed in the glove box was a "possible weapon" and alerted the other officers.
Using his vehicle's loudspeaker, Detective Hanselman commanded the Aztec to pull over after its driver ignored the lights and sirens. The Aztec then came to a halt on a narrow shoulder just before an exit ramp. Sergeant Damiano pulled in front of the Aztec, his vehicle in a lane of traffic. Detective Hanselman's car ...