NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2012
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-08-1578.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).
Before Judges Lihotz and Ostrer.
Following denial of his motion to suppress evidence seized from a warrantless search of a sealed cardboard box in a shopping bag, defendant David Villa entered a plea of guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39- 5b. He also entered a plea to third-degree burglary, N.J.S.A. 2C:18-2. Pursuant to his plea agreement, the court sentenced defendant to seven years, with three years of parole ineligibility, on the firearms offense, and three years flat on the burglary, to be served concurrently. Defendant now appeals from the denial of his suppression motion, and challenges his aggregate sentence as manifestly excessive. Having reviewed these arguments in light of the facts and applicable law, we affirm.
We defer to the trial court's factual findings on a motion to suppress. State v. Elders, 192 N.J. 224, 243 (2007) (citation and quotation omitted). However, in this case the facts are undisputed. Defendant stipulated to the version of events set forth in an investigating officer's report. Therefore, we exercise plenary review of the trial court's application of the law to the facts. State v. Cryan, 320 N.J.Super. 325, 328 (App. Div. 1999).
According to Asbury Park Police Lieutenant David DeSane's investigative report, a Neptune City police detective informed DeSane on April 14, 2010, that he had just signed an arrest warrant for defendant on the burglary and other charges. DeSane was familiar with defendant and agreed to try to locate him.
At about 3:00 p.m., while on vehicular patrol with Sergeant Brian Townsend and another Asbury Park police officer, DeSane observed defendant standing on the corner of Third Avenue and Main Street. DeSane then described Villa's arrest and the seizure of the handgun:
Villa held a plastic[, ] white and blue "Finish Line" bag in his right hand. . . . I exited the vehicle and called to Villa by name as he reached the curb. Villa stopped and turned as I reached him. I advised Villa of the warrant for his arrest, removed the bag from his hand and placed it on the ground. I handcuffed Villa and called for a transport car.
Sgt. Townsend picked up the plastic bag and removed a blue/green microwave popcorn box (Act II, Fat-Free Butter) which was taped shut with silver Duct Tape at one end. Inside the box Sgt. Townsend located a defaced 10 mm Glock, Model 20, semiautomatic handgun wrapped in a white t-shirt and 6 white rubber gloves. The handgun contained 9 mm ammunition (4 ...