NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-05-1264.
Muhammad Ibn Bashir argued the cause for appellant.
Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Guerrero, of counsel and on the brief).
Before Judges Harris and Kennedy.
Defendant Foshea D. Wooden appeals his conviction for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), which resulted from a guilty plea following the denial of a motion to suppress. Wooden argues, among other things, that the motion judge improperly ruled that there was sufficient evidence to justify the motor vehicle stop that ultimately led to the discovery of a bag of bullets on Wooden's person and a handgun in the car. We remand to the Law Division for supplementation and reconsideration of the motion to suppress to allow Wooden an opportunity to present the testimony of a witness who was barred from testifying. Because of the remand, we do not reach the other issues raised on appeal.
The motion record reveals the following facts and procedural history.
On December 21, 2009, State Trooper Nicholas Rubino was on patrol with Trooper Louis Gardenia in a marked troop vehicle eastbound on Interstate 280 near Newark and East Orange. Shortly after midnight, Trooper Rubino observed a lone vehicle, later determined to be a 2006 black, four-door KIA exiting the Garden State Parkway ramp at Exit 145 and merging eastbound onto Interstate 280 "at a high rate of speed." Trooper Rubino began to follow and "pace" the KIA to the First Street exit, a distance that he testified was "approximately maybe two miles." The trooper determined that the KIA was traveling at eighty-five miles per hour. In addition to traveling at a high rate of speed, Trooper Rubino said that he observed the vehicle travel in between two other vehicles in an attempt to make a lane change from the left lane to the center lane. Ultimately, based upon these observations, a motor vehicle stop was initiated at the intersection of First and Orange Streets in Newark for speeding and an unsafe lane change.
Both Troopers Rubino and Gardenia exited their vehicle and approached the stopped KIA. Trooper Rubino approached the driver's side while Trooper Gardenia approached the passenger side.
Trooper Rubino observed three individuals inside the KIA: the driver, Wooden; and two passengers, one in the passenger front seat (Rasheed Simmons) and the other seated in the back (Tamara Brantley). After approaching the driver's side of the vehicle, Trooper Rubino testified that he detected an odor of an alcoholic beverage and noticed Wooden had "bloodshot and glassy" eyes. Wooden told Trooper Rubino he consumed three beers prior to being stopped. Trooper Rubino, after instructing Wooden to move his head toward the driver's side window, then checked Wooden's pupils by performing the horizontal gaze nystagmus (HGN) test. After administering the HGN test on Wooden inside the car, Trooper Rubino then asked Wooden to exit the vehicle for a further sobriety examination, the "standardized field sobriety test." Wooden calmly and politely complied.
Trooper Rubino testified that after he conducted several field sobriety tests, it was his opinion that Wooden had failed them, and Wooden was "placed under arrest for suspicion of [driving while intoxicated (DWI)]." Trooper Rubino conceded that there is no record or document of what field sobriety tests, or aspects of a single field sobriety test, Wooden failed.
Subsequent to Wooden's arrest, Trooper Rubino "conducted a search incidental to arrest of the driver, " which revealed a clear, plastic bag containing bullets in Wooden's front right pocket. Trooper Rubino testified that he was concerned, for both trooper and pedestrian safety, that there was a firearm either on Wooden's person or inside the stopped vehicle where the two other passengers remained. As a result, Trooper Rubino asked Wooden, who was already under arrest and without advising him of his Miranda rights, ...