NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2012
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 05-05-0164.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Richard T. Burke, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fasciale and Maven.
A Warren County grand jury returned Indictment No. 2005-05-0164 charging defendant Anthony Rodriguez with fourth-degree attempted theft by deception, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-4 (count one); and third-degree uttering forged money, contrary to N.J.S.A. 2C:21-1a(3) (count two). Following a jury trial, defendant was convicted on both counts and sentenced to an aggregate term of one-year probation conditioned on 364 days to be served in county jail. Defendant appeals the conviction and sentence. We affirm, except that we remand for merger of counts one and two.
The facts as adduced in the record are as follows. On February 1, 2005, defendant went to the Greenwich Township Home Depot Store (the "store") to buy carpeting. He paid the store clerk $217 using ten twenty-dollar bills and an additional seventeen dollars. Confirming her suspicions, the store clerk, Lauren Nolt, identified the ten twenty-dollar bills as counterfeit by using a counterfeit detecting pen and a black light. A store employee called the police to report a purchase using counterfeit bills. Pohatcong Township Police Sergeant Scott Robb was the first police officer to respond to the store.He testified that, because the store was not in his jurisdiction, his role was to secure the scene until a Greenwich Township police officer arrived, and then assist that officer as requested.
Upon receiving a brief explanation from Nolt as to defendant's activity, Robb approached defendant and asked him for identification. Defendant presented his New Jersey identification card. Robb asked defendant if he had anything on him that he should know about, at which point defendant handed him a knife. Robb then conducted a safety pat-down on the outside of defendant's clothing. Robb felt a bulge in defendant's front pants pocket. When asked what it was, defendant said it was money. Robb then reached into defendant's pocket and removed a large billfold of money, which Robb testified did not feel like normal U.S. currency. It was later determined that, in total, defendant had $1854 in genuine bills and $380 in counterfeit twenty-dollar dollar bills in his possession.
Greenwich Township Sergeant David Voll arrived at the store while Robb was questioning defendant. Voll testified that he had a brief conversation with Robb, at which time Robb gave him defendant's identification and the money retrieved from defendant's pocket. Voll spoke to Nolt who gave him the money she received from defendant, and explained that she determined the bill were counterfeit after she had checked the bills with a black light and pen. Voll then spoke to defendant who told him that he was a tattoo artist and that "he may have unknowingly received the counterfeit bills from one of his customers." Voll placed defendant under arrest for passing counterfeit money.
At police headquarters Voll read defendant his Miranda rights. Thereafter, Voll interviewed defendant and told him that "it was obvious that [defendant] had knowledge of the counterfeit bills." Defendant invoked his right to remain silent and requested an attorney.
Following a Miranda hearing, the motion judge issued an oral opinion denying defendant's motion to suppress his statements and the currency recovered from his pocket. The judge determined that defendant's statements about his tattoo business, made in response to Robb's initial inquiry for identification, were voluntarily made and therefore admissible. The judge further found that once defendant handed Robb the knife, defendant was effectively under arrest and Robb, therefore, justifiably conducted a pat-down search. The judge stated:
I feel that he was . . . under arrest at that particular point in time, even though there was no formal saying that you're under arrest or wasn't cuffed. It is very obvious that he was not free to leave. So I feel that the pat down was a search lawful to an arrest. The officer did it really primarily for his own safety.
The judge concluded that under the circumstances, the money seized from defendant's pocket was admissible as the fruit of either a search incident to a lawful arrest, or a lawful pat-down initiated for Robb's safety.
At trial the State presented Nolt, Robb, Voll, and United States Secret Service Agent Dan Gallagher. Defendant did not testify. This appeal followed in ...