NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2013.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 11-78.
Keenan & Doris, LLC, attorney for appellant (Ian C. Doris, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Jacqueline Choi, Assistant Prosecutor, of counsel and on the brief).
Before Judge Hayden and Hoffman.
Following a trial de novo in the Law Division, defendant Junior A. Headley appeals from an April 12, 2012 order that found him guilty of possession of burglary tools, in violation of N.J.S.A. 2C:5-5. For the reasons that follow, we reverse and remand for further proceedings consistent with this opinion.
Testimony at trial in municipal court was offered for the State by Sergeant Adam Kopesky of the Tenafly Police Department, who testified that on June 28, 2011 at 2:30 p.m., while on patrol in an unmarked police car, he received a report "about an individual, black male, wearing a tee shirt and jeans, riding a bicycle north on Ivy Lane who was . . . casing houses." After proceeding to Ivy Lane, Sergeant Kopesky said,
I observed a male fitting the description provided by dispatch. I stopped my vehicle, got out.
I was in plainclothes, but I had my ID out . . . I identified myself as a police officer and asked Mr. Headley to stop.
I explained to him what happened, that we received a call of [a] suspicious person on a bicycle. He appeared to be a little agitated about that. And then initially tried to go. At that point I observed a flathead screwdriver and a pair of gloves protruding out of his rear pocket.
At that point I saw the screwdriver which could be used as a weapon. I secured the screwdriver and the gloves . . . I patted him down further for any additional weapons he may have.
When questioned about the screwdriver and work gloves, defendant initially claimed that he worked construction, but later said he used the screwdriver to fix his bike. At that point, Sergeant Kopesky observed that the screwdriver would not fit the bike's small Phillips head screws. Sergeant Kopesky also noticed that defendant had a ...