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State v. Sowell

Superior Court of New Jersey, Appellate Division

October 8, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
KEYSHON T. SOWELL, Defendant-Appellant.


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, [1] 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.[2]

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.[3] 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.[4] 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.[5]

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 bodily safety and for her life so that she would not interfere with [defendant] stealing her money[.]"

Turning to count five, the following exchange took place between defense counsel and defendant:

[Counsel]: And this particular conduct that you just described involving Ms. [Dimsdale] was also conducted in the presence of a number of different children. Is that correct?
Defendant: Yes.
[Counsel]: One of the children that was indicated in the discovery was somebody with the initials of Z.D., a minor. There were minor children in the house at the time. Is that correct?
Defendant: Yes.
[Counsel]: And your conduct that you described for Count 2 involved that conduct regarding all people that were there. Is that correct?
Defendant: Yes.
The Court: And you did that with the purpose of committing a robbery, correct?
Defendant: Yes.

The court accepted the plea's factual basis, and determined it was voluntary. On December 18, 2009, pursuant to the plea agreement, Judge Peim dismissed all remaining charges, and sentenced defendant to two concurrent sixteen-year sentences, with parole ineligibility periods of eighty-five percent. The court found aggravating factors three, six and nine, N.J.S.A. 2C:44-1a(3), (6), & (9), noting this was defendant's sixth indictable conviction.

On appeal, defendant presents the following issues for our consideration:

A. The Investigatory Stop of Porter and His Companion Was Unconstitutional.
B. The Evidence Must Be Suppressed Because It Is Not Sufficiently Attenuated From The Taint Of The Unconstitutional Stop.



We consider first defendant's challenge to the court's order denying his motion to suppress evidence. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Robinson, 200 N.J. 1, 15 (2009) (internal quotation marks and citations omitted). We defer to the trial court's findings that are "substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Ibid. (internal quotation marks and citations omitted). We are "not permitted to weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Locurto, 157 N.J. 463, 472 (1999) (internal quotation marks and citations omitted).

However, "a reviewing court owes no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010) (citation omitted). Thus, we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J.Super. 325, 328 (App. Div. 1999).

Defendant argues that the seizure of the cloth and money from Porter was the fruit of the unlawful stop of Porter and his companion — who, according to evidence at the Wade hearing, was defendant — and the subsequent unlawful pursuit and arrest of the two men. Consequently, we first consider the legality of Gonzalez's attempt to stop the two defendants in front of the invaded home.

We are guided by well-established principles governing police encounters with citizens. A police officer does not violate a citizen's right to be free from unreasonable searches and seizures by "'merely approaching . . . [him] on the street . . ., by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen[.]'" State v. Davis, 104 N.J. 490, 497 (1986) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236 (1983)). Such encounters are known as field inquiries and require no well-grounded suspicion of criminal activity. State v. Elders, 192 N.J. 224, 246 (2007). On the other hand, when the police encounter results in a reasonable person's belief that he was not free to leave, the encounter rises to an investigatory stop. Id. at 246-47. We have no doubt that Gonzalez attempted to conduct a stop.

An investigatory stop or detention is constitutional only "if it 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." Id. at 247 (internal quotation marks and citations omitted).

The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

[Davis, supra, 104 N.J. at 504.]

The State need not prove the defendant actually committed the offense involved. State v. Williamson, 138 N.J. 302, 304 (1994). On the other hand, the investigatory stop may not be predicated on "unparticularized suspicion or 'hunch.'" Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909 (1968). Rather, the State must possess "some minimal level of objective justification for making the stop." State v. Nishina, 175 N.J. 502, 511 (2003) (internal quotation marks and citation omitted).

We agree with Judge Heimlich that the totality of circumstances supported the police officers' intrusion. We rely on several compelling facts. The two men were standing in front of the invaded home. They were found there within two or three minutes of the 911 call, which was made while the robbery was in progress. Thus, it was reasonable that they were still close to the house when the police arrived. There were no other pedestrians on the street. It was late at night. As the police approached, the men walked away toward a gas station.

Our Court has found that a defendant's "proximity to the crime in both time and space" was "sufficient to generate a reasonable suspicion" when coupled with "similarity to the general description of the suspect." State v. Reynolds, 124 N.J. 559, 562, 569 (1991) (sustaining stop of suspect who matched a "brief description" in a field "in the area" of a home where a sexual assault was reported "soon after the attack"); see also State v. Gavazzi, 332 N.J.Super. 348, 362 (Law Div. 2000) (sustaining stop conducted of the only vehicle located in close proximity to crime scene). The police were acting based on the comparatively reliable information of a crime victim, as distinct from an anonymous tipster. See State v. Amelio, 197 N.J. 207, 212-13 (2008).

We recognize that Gonzalez did not have a physical description of the robbers or their clothing. Cf. Gavazzi, supra, 332 N.J.Super. at 362 (stating that police inability to confirm all aspects of victim's description "does not in and of itself, vitiate an otherwise reasonable and articulable suspicion"). However, there was nothing about the men — apparent age, physical disability, or attire — that would tend to exclude them. On the other hand, they were found not only in the general area, but directly in front of the crime scene, almost contemporaneously to the 911 call.

Moreover, we also recognize that mere avoidance of the police is not itself a basis for a reasonable and articulable suspicion. State v. Tucker, 136 N.J. 158, 169 (1994); see also State v. Costa, 327 N.J.Super. 22, 32 (App. Div. 1999) ("A Terry stop must be supported by more than just an awkward reaction to police presence."). On the other hand, nervousness may be considered together with other factors. Elders, supra, 192 N.J. at 250; State v. Stovall, 170 N.J. 346, 367-68 (2002); see also State v. Todd, 355 N.J.Super. 132, 138 (App. Div. 2002) (finding articulable and reasonable suspicion where defendant was "the only person then walking on [the] street" near where a crime was committed and was "sweating and appeared nervous").

Other jurisdictions have found reasonable suspicion when a person is found alone in the immediate area while a crime was in progress, or soon after it was committed. See 4 LaFave, Search and Seizure § 9.5(h) nn.455-60 (5th ed. 2012) (surveying authority). For example, the Fourth Circuit sustained the stop of a lone pedestrian observed near the site of a suspected burglary promptly after the police dispatch:

A combination of factors justify the stop. When the officer approached the site of the alarm, he saw appellant close to one of the entrances of the building. Only two or three minutes had elapsed since Smith first received the dispatcher's call. The call came late at night, and appellant was the only person in the vicinity. Moreover, appellant was moving away from the scene of the crime, though the silent nature of the alarm may have given him no cause to hurry. These circumstances in combination support a reasonable suspicion that appellant was involved in the break-in.
. . . .
If the policeman were first required to verify all the circumstances of the crime, the opportunity to catch the criminal might be lost.
[United States v. Moore, 817 F.2d 1105, 1107 (4th Cir.), cert. denied, 484 U.S. 965, 108 S.Ct. 456, 98 L.Ed.2d 396 (1987).]

The court noted that "'the Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.'" Id. at 1106 (quoting Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616 (1972)).

Once the two men disregarded Gonzalez's command to stop, fleeing the scene, the police had probable cause to arrest them for obstruction of law. Probable cause is a "well-grounded suspicion that a crime has been or is being committed." Nishina, supra, 175 N.J. at 515 (internal quotation marks and citation omitted). The police had such cause to arrest because the men clearly acknowledged the officers' presence, and, as the trial judge found, decided to "bolt" in response. Porter was physically arrested only upon Gonzalez's positive identification. The cloth and money were then seized after they were found in plain view. See Mann, supra, 203 N.J. at 341.

Finally, we dispatch defendant's argument that the State failed to establish a basis for his warrantless arrest, and the seizure of the t-shirt sleeve on his person, because no witness at the suppression hearing identified defendant as the man who fled with Porter from the front of the invaded home. At the outset of the hearing, defendant's counsel stated he was challenging the seizure of evidence from the vehicles, both with and without a warrant. He did not state he challenged defendant's arrest, or seizure of clothing.

Moreover, as we have discussed, there was reasonable and articulable suspicion to justify the police's decision to stop Porter's companion; and then to arrest that person when he defied the police's commands to stop. Whether defendant was Porter's companion is a matter of identification. That would have been properly raised in the context of the Wade hearing that was abandoned when defendants decided to plead. We also note that the torn sleeve was not seized pursuant to a search of defendant's person. Rather, according to testimony at the Wade hearing, defendant was still wearing the torn sleeve in plain view around his neck when he was arrested.

Since we hold that police had a reasonable and articulable suspicion to stop the two men, we need not address the State's argument that any illegality associated with the stop was attenuated by the intervening flight and other circumstances. See State v. Shaw, 213 N.J. 398, 415-16 (2012) (applying attenuation doctrine to arrest after unlawful stop and intervening discovery of arrest warrant); State v. Williams, 192 N.J. 1, 15-18 (2007) (applying attenuation doctrine to arrest after flight from unlawful stop). Likewise, given our conclusion that Porter's arrest and subsequent search were valid, we need not address whether defendant had standing to object.

In sum, we affirm Judge Heimlich's order denying the motion to suppress evidence seized, without a warrant, from the vehicle in which Porter and Milligan were found. The State represented that there was no evidence seized from the warrantless stop of the second vehicle. We view any challenge to the warrant-based search of the two vehicles to be abandoned.


We turn next to defendant's argument that he provided an insufficient factual basis to support his plea to count five. He asserts that as a result, his conviction on both counts should be vacated. We disagree.

We consider a "trial court's factual findings at a defendant's plea hearing in accordance with a deferential standard of review." State v. Campfield, 213 N.J. 218, 229 (2013). Although a reviewing court accords deference to the trial judge's findings "which are substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case, " appellate review is plenary with respect to determinations of law. Id. at 230 (internal quotation marks and citations omitted).

It is well-settled that, in order to accept a plea, a trial court must find an adequate factual basis. R. 3:9-2. As the Court in Campfield, supra, stated:

[O]ur law requires that each element of the offense be addressed in the plea colloquy. The factual foundation may take one of two forms; defendant may either explicitly admit guilt with respect to the elements or may acknowledge[ ] . . . facts constituting the essential elements of the crime. The trial court must be satisfied from the lips of the defendant that he committed the acts which constitute the crime.

. . . .

The trial court's inquiry need not follow a prescribed or artificial ritual. [D]ifferent criminal charges and different defendants require courts to act flexibly to achieve constitutional ends. Instead, the defendant's admissions should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy. The trial court's task is to ensure that the defendant has articulated a factual basis for each element of the offense to which he pleads guilty.

[213 N.J. at 231 (internal quotation marks and citations omitted).]

The gist of defendant's argument is that defendant did not admit to the theft element of robbery when pleading guilty to count five, involving robbery of minor Z.D.

A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree.
[N.J.S.A. 2C:15-1.]

Defendant asserts that, with regard to Z.D., he only admitted to threatening or causing bodily injury through the use of force. We are unpersuaded.

We agree that in order to establish the elements of robbery of Z.D., defendant needed to admit he committed a theft against Z.D. It would not suffice to admit to theft only from Dimsdale, the victim in count two, to which defendant also pleaded. See State v. Sewell, 127 N.J. 133, 137-38 (1992) (stating that one robbery was committed, not three, where defendant committed one theft, but inflicted physical harm on three persons). "[E]ach robbery is a separate crime, which entails a discrete theft from a single victim together with accompanying injury or force." Id. at 137. See also State v. Lawson, 217 N.J.Super. 47, 51 (App. Div. 1987) ("N.J.S.A. 2C:15-1a should not be extended by implication to sustain two robbery convictions for assaults upon two victims in immediate flight after a theft or attempted theft from a third victim.").

In pleading to robbery of Z.D., defendant did not explicitly state that he committed a theft against her. However, he did so indirectly, by incorporating by reference his actions pertaining to Dimsdale. Defendant admitted that "[his] conduct that [he] described for Count 2 involved that conduct regarding all people that were there." Defendant argues that the referenced conduct pertained only to the threats of force. However, there is no basis in the record to interpret "conduct" so restrictively. With respect to count two, defendant affirmatively answered the judge's leading questions, asking him whether he was "involved with or threatened bodily injury to [Dimsdale] or put her in fear with any kind of a weapon or indicate[d] a deadly weapon"; whether he "stole stuff from her"; and whether he possessed and displayed a weapon to put her in fear. The phrase "conduct . . . described for Count 2" incorporated by reference all those actions, including theft.


Finally, defendant's challenge to his sentence lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say that we find no error in the court's exercise of its sentencing authority. We are satisfied that the judge's findings regarding aggravating and mitigating factors were based upon competent and credible evidence in the record, that the judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, and that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. Pierce, 188 N.J. 155, 169 (2006); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).


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