NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 16, 2013
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-11-0986.
Clare M. Pessolano, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Pessolano, on the briefs).
Estrella Lopez, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Lopez, of counsel and on the brief).
Before Judges Messano and Ostrer.
After pleading guilty to two counts of first-degree robbery, defendant appeals his conviction on the ground that the court should have suppressed evidence seized from two co- defendants; and his guilty plea lacked an adequate factual basis. He also challenges his sentence as excessive. After reviewing defendant's arguments in light of the record and applicable legal principles, we affirm.
Defendant and four co-defendants (three male and one female) were charged in a November 2007 indictment with various crimes arising out of a home invasion on July 17, 2007, in Elizabeth, including: second-degree burglary, N.J.S.A. 2C:18-2 (count one); nine counts of first and second-degree robbery that victimized three adult women and six children between the ages of one-and-a-half and twelve-and-a-half years old, N.J.S.A. 2C:15-1 (counts two through ten); third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d (count eleven); first-degree kidnapping involving one of the adult women, Susan Madison,  N.J.S.A. 2C:13-1b (count twelve); and eight counts of second-degree kidnapping involving another adult, Sharon Dimsdale, and the seven child victims, N.J.S.A. 2C:13-1b (counts thirteen through twenty). Defendant and one co-defendant were separately charged with fourth-degree obstruction of law, N.J.S.A. 2C:29-1, apparently arising out of their flight from investigating officers (count twenty-one). Defendant was separately indicted and charged with a fourth-degree certain persons offense related to his knife possession, N.J.S.A. 2C:39-7a.
According to the State's version of the offense, the adult victims of the robbery reported that one of the children opened the apartment door after hearing a knock. A man then kicked the door, striking the child in the head, and three other men entered, all with knives, and all wearing white t-shirts with the sleeves cut off. They used the sleeves as face-masks, although at least one defendant removed his mask, allowing the victims to observe his face. At some point during the invasion, Madison surreptitiously dialed 911 on her cell phone and left the line open, allowing the 911 operator to overhear the robbery in progress. At least one invader wielded a knife. The victims heard a female's voice from the front of the apartment but did not see her. The men seized the victims' cell phones, a wallet, and over $800 in cash.
Within a few minutes of the robbery, police responded to the scene. In summary, two officers engaged in a foot pursuit of two defendants near the invaded home after they refused commands to stop. One officer arrested defendant on foot, and another officer arrested his companion, Barry Porter, in the passenger seat of a minivan that a third officer initially discovered. Co-defendant Cheryl Milligan was apparently behind the wheel. Porter was perspiring and breathing heavily. Near his feet, officers seized a torn t-shirt sleeve wrapped around robbery proceeds. During the foot pursuit, one officer found a knife in a backyard. Co-defendant Patrick Julney was apparently arrested in a second vehicle. Police subsequently obtained a search warrant to conduct a further search of the two vehicles.
All five defendants apparently filed motions to suppress arising out of the arrests and seizures. However, none of the notices of motion nor the order denying the motions are included in the record. At the outset of the hearing, the judge expressed some uncertainty as to what evidence the movants sought to suppress. Defendant's attorney stated "whatever was seized" from the vehicles, both without, and later with a warrant — as those seizures were the fruits of an unlawful stop and pursuit of defendant and Porter.
The prosecutor stated the cloth and money were the only tangible items seized without a warrant from either vehicle. The State apparently did not intend to argue that the knife found belonged to any of the defendants. Referring to the cloth and money, he said:
Judge, I believe that that's the only item that was recovered . . . from the Dodge Caravan. That was the only . . . piece of physical evidence . . . that was recovered without a warrant besides a knife that was in the backyard which obviously no one is going to say belonged to any of the defendants.
The court decided to determine the lawfulness of the warrantless search first.
At the suppression hearing, the court heard from two Elizabeth police officers, Carlos Morales and Michael Gonzalez. Gonzalez testified that while on patrol with fellow officer James Spawn, at around 10:45 p.m. on July 17, 2007, he received a call about a home invasion at a specific address on Fairmount Avenue. Within two or three minutes, he arrived at the scene and observed two black males in front of the house. They appeared to be together. They were wearing white t-shirts. They walked away from the house, to a gas station about fifty yards away. No other pedestrians were present; the area around the gas station was commercial and industrial. The officers stopped their vehicle and exited. At a distance of less than fifty yards, Gonzalez yelled, "Police stop, police stop." Gonzalez and Spawn wore police shirts and badges around their necks.
Although defense counsel confronted Gonzalez with Spawn's report, which stated that the officers observed two men walking through the gas station, Gonzalez insisted he first saw the men in front of the invaded house. Gonzalez also conceded that when he commanded the two men to stop, he did not yet have any description of the alleged home invaders, nor were they engaged in illegal activity.
The two men looked back at the officers and ran off in different directions. Spawn chased one man, Gonzalez the other, but lost sight of him. During the chase, Gonzalez received additional information over his radio, including "suspect information, description of clothing, " although he did not elaborate. Gonzalez also learned that Spawn recovered a knife during his foot pursuit, although there was no evidence that Spawn saw the fleeing suspect discard it.
Gonzalez then heard that Morales had stopped individuals in a car around the corner from Gonzalez's location. Gonzalez approached the vehicle and found the person he had been pursuing in the passenger seat. The man was perspiring and shirtless, although he had worn a shirt during the chase. After Gonzalez identified the passenger as the person he had pursued, he was arrested. Police then seized a torn off shirt sleeve with currency in it on the floor where Porter had been seated. Meanwhile, Spawn arrested the man he chased. Neither Gonzalez nor Morales testified that Spawn's arrestee was defendant.
Morales testified that he and another officer were patrolling in a marked police car on the evening of July 17, 2007. It was hot and humid. Morales was about two or three blocks away from the invaded home on Fairmount Avenue when he received a call of "[a] home invasion turned into a foot pursuit." Although he was told "three or five" persons were involved in the home invasion, he believed only one suspect, in black pants and a white shirt, was being pursued on foot by Gonzalez. Morales also learned "that there may have possibly been weapons involved" in the home invasion.
When he arrived at Fairmount Avenue, Morales saw Gonzalez "running after the suspect, " whom Morales did not see. Morales stopped his vehicle and proceeded on foot. He said that "[h]ardly nobody [was] on the street" in the area. After receiving a radio report that the suspects' vehicle was either a silver or grey minivan, or a Tahoe SUV, Morales spotted a parked minivan that met the description. Morales approached the passenger side of the car, and saw a black male lying down in a fully reclined passenger seat; he was "breathing heavily" and sweating. According to Morales, the man was wearing a white t-shirt. The engine was running and the windows were closed. The only other occupant was a woman. The two ignored the officer's knock on the window and his inquiries about what they were doing there and where they were headed.
Morales radioed Gonzalez he may have found the suspect Gonzalez had pursued. Three to five seconds later, Gonzalez approached the vehicle and confirmed the man in the car was the one he had chased. After the man exited the car, in compliance with Gonzalez's order, Morales noticed a white cloth or t-shirt "[r]ight by [the passenger's] foot." A third officer removed the cloth, and Morales observed money in it. During his testimony, Morales was unable to identify any of the four male defendants present in court as occupants of the minivan. He also testified he did not learn the occupants' names.
In denying the motion, Judge James C. Heimlich credited Gonzalez's testimony that he first spotted the two men in front of the identified house, two or three minutes after the 911 call; no other pedestrians were present; and the two men then walked through a gas station. After Gonzalez identified himself and commanded them to stop, they "bolt[ed]" in different directions and the officers gave chase. Once Gonzalez approached the minivan, after Morales alerted him, he identified Porter as the man he had chased. Porter was sweaty, and slumped down in his seat. The judge credited Gonzalez's testimony that Porter was shirtless.
Judge Heimlich found that the officers had a reasonable and articulable suspicion to stop the two men in front of the invaded house. The officers also were authorized to arrest them once they ignored the command to stop. Incident to Porter's arrest, the police were authorized to seize the white cloth and money in plain view. The court did not expressly address the validity of the search warrant that apparently was based, in part, on the fruits of the warrantless search of the vehicle. The record before us does not include the warrant or the affidavit in support of the warrant.
Defendant and his three male co-defendants all pleaded guilty before Judge Peim while the Wade hearing was ongoing. Although defendant did not implicate anyone else, the record reflected the State insisted upon the entry of pleas of all four men as a condition of the offer extended to each. The State dismissed all charges against Milligan.
On February 18, 2009, defendant pleaded guilty to first-degree robbery under count two, which alleged Dimsdale as the victim; and count five, which alleged a twelve-and-a-half-year-old minor, Z.D., as the victim. Defendant admitted he entered the victim's house on July 17, 2007, and was "involved with or threatened bodily injury to [Sharon Dimsdale] or put her in fear with any kind of a weapon." He admitted he "stole stuff from her, " specifically money, and that he displayed a knife "to put her in fear for her ...