September 4, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CARLOS MANSANET, a/k/a CARLOS J. MANSANET, a/k/a CARLOS J. MANSONET, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 14, 2013
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-10-2241.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).
Before Judges Koblitz and Accurso.
Defendant Carlos Mansanet appeals from the denial of his motion to suppress the handgun found in his pocket as well as his subsequent conviction after a guilty plea to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). He also argues that his sentence of six years with a five-year parole disqualifier was excessive. We affirm.
The testimony at the motion to suppress reveals the following facts. Camden Police Detective John Gramaglia received a telephone call on a hot ninety-degree spring day from a confidential informant who Det. Gramaglia had worked with seven or eight times before. The informant had provided reliable information regarding drugs, weapons and shootings in the past. The informant stated that a black male wearing an orange "hoodie" was outside the Northgate One apartments in possession of a handgun. Det. Gramaglia related the tip to the police dispatcher, who broadcasted it to the officers on the street.
Officer Bernardo Segarra responded to the area and saw defendant, a tall, dark-skinned black male who "matched the description to a tee [sic]" exit a stairwell and begin walking away from the officer. Officer Segarra noted that an orange "hoodie" was an unusual color to be worn in Camden. Segarra patted defendant down, including "his right pocket which was where the description of where the gun was located was given[, ]" finding a revolver. The police report indicates that the gun was loaded.
The motion judge found both officers to be credible and denied defendant's motion to suppress the gun. Defendant subsequently pled guilty to count two of two-count Camden County Indictment No. 11-10-2241. This was defendant's tenth indictable conviction.
On appeal defendant raises the following issues:
POINT I: THE STATE ADDUCED INSUFFICIENT FACTS FROM WHICH THE LOWER COURT COULD REASONABLY FIND THAT THE POLICE HAD A REASONABLE AND ARTICULABLE SUSPICION THAT DEFENDANT WAS PRESENTLY ARMED AND DANGEROUS; AND BECAUSE SUCH A FINDING WAS NECESSARY TO VALIDATE THE STOP AND FRISK, THE ORDER DENYING THE MOTION TO SUPPRESS SHOULD BE REVERSED.
POINT II: THE LOWER COURT SHOULD HAVE IMPOSED THE LOWEST LAWFUL SENTENCE, FIVE YEARS WITH FIVE YEARS OF PAROLE INELIGIBILITY.
Defendant argues that the tip provided by the confidential informant was insufficiently specific to justify the stop and frisk of defendant. The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, and to pat him down for the officer's safety, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts, ' give rise to a reasonable suspicion of criminal activity." State v. Rodriquez, 172 N.J. 117, 126 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). See also State v. Shaw, 213 N.J. 398, 410-11 (2012).
As the motion judge found, here the informant was reliable because he had provided accurate information many times in the past, leading to the issuance of search warrants and arrests. He provided a specific and particular description of defendant, a tall black male wearing a "hoodie" of an unusual color on a hot day, at a specific location, with a gun in his right pocket.
We use a deferential "clear error" standard when assessing a trial judge's suppression hearing findings. State v. Elders, 192 N.J. 224, 243 (2007). We must defer to the judge's factual findings unless they are clearly mistaken. Shaw, supra, 213 N.J. at 411.
The officers based their suspicion of defendant's criminal activity on a tip received from a known and reliable informant. The United States Supreme Court in Illinois v. Gates held that the reliability of a confidential informant's tip is to be analyzed under "the totality of the circumstances." 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983). New Jersey has also adopted the "totality of the circumstances test." State v. Zutic, 155 N.J. 103, 110-11 (1998) (applying the standard outlined in State v. Smith, 155 N.J. 83, 92-93, 95, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed.2d 480 (1998)).
In evaluating the reliability of a confidential informant's tip, the Court has stated that "[a]n informant's 'veracity' and 'basis of knowledge' are two highly relevant factors under the totality of the circumstances." Id. at 110 (quoting Smith, supra, 155 N.J. at 93). However, the Court has also noted that "[a] deficiency in one of those factors 'may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.'" Id. at 110-111 (citations omitted). For example, "'if police corroborate 'information from which it can be inferred that the informant's tip was grounded on inside information, this corroboration is sufficient to satisfy the basis of knowledge prong' as well as the veracity prong.'" State v. Keyes, 184 N.J. 541, 558 (2005) (quoting
Smith, supra , 155 N.J. at 95-96).
The Court has advised that "[t]he veracity factor may be satisfied by demonstrating that the informant has proven reliable in the past, such as providing dependable information in previous police investigations." Id. at 555.
The Court has stated that the knowledge factor may be satisfied if the informant provides sufficient details in the tip. Id. at 555-56. The Court has also stated that "whether the informant had a basis of knowledge for the information provided to the police 'is relevant to a determination that the information was obtained in a reliable way.'" State v. Sullivan, 169 N.J. 204, 213 (2001) (quoting Smith, supra, 155 N.J. at 94). Where the informant does not explicitly tell the investigating officer the source of the information, "'the nature and details revealed in the tip may imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source.'" Ibid. (quoting
Smith, supra , 155 N.J. at 94). The Court has found that "'[b]y providing sufficient detail in the tip or recounting information that could not otherwise be attributed to circulating rumors or be easily gleaned by a casual observer, an informant can implicitly disclose a reliable basis of knowledge as the foundation of the information related to the police.'" Ibid. (alteration in original) (quoting
Smith, supra , 155 N.J. at 95).
As the motion judge determined, the police had sufficient specific and articulable facts to justify frisking defendant. Thus, defendant's motion to suppress was properly denied.
Defendant argues that his sentence was excessive because the judge found mitigating factor 11, that his imprisonment "would entail excessive hardship to himself or his dependents" and nonetheless imposed a sentence one year longer than the mandatory minimum. N.J.S.A. 2C:44-1(b)(11). The judge found the existence of three aggravating factors: "[t]he risk that the defendant will commit another offense[, ]" "[t]he extent of the defendant's prior criminal record . . .[, ]" and "[t]he need for deterring the defendant and others from violating the law[.]" N.J.S.A. 2C:44-1(a)(3), (6) & (9). The judge was statutorily required to impose a five-year term of parole ineligibility. N.J.S.A. 2C:39-7(b)(1).
When reviewing a claim of an excessive sentence, our role is sharply circumscribed. State v. Bieniek, 200 N.J. 601, 607-08 (2010). As the Bieniek Court stated:
The [New Jersey Code of Criminal Justice] was designed to promote [consistency in sentencing] by providing courts with a system for "structured discretion" in sentencing. State v. Roth, [95 N.J. 334, 345] (1984). And, we have "assured our trial judges that when they 'exercise discretion in accordance with the principles set forth in the Code and defined by us . . ., they need fear no second-guessing.'" State v. Ghertler, [114 N.J. 383, 384] (1989) (quoting Roth, supra, [95 N.J. at 365)].
[Ibid. (alteration in original).]
If the trial judge's findings of statutory aggravating and mitigating factors "were based upon competent credible evidence in the record, " and the judge imposed a sentence within the permissible range for the offense, we will not substitute our view of a proper sentence for that imposed by the trial judge. Id. at 608 (citations and internal quotation marks omitted). The imposition of a six-year maximum sentence was well within the judge's discretion.