NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-08-2071.
Brian Plunkett, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Plunkett, of counsel and on the brief).
Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief).
Before Judges Simonelli, Fasciale and Haas.
After a jury trial, defendant appeals from his conviction for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. We affirm.
On June 18, 2011, at approximately 2:30 a.m., a Security Operations Specialist from Bally's Casino observed on a live security camera four men entering a valet parking area and getting into a vehicle. The camera showed that the driver removed a gun from the glove box and the front seat passenger held the gun on his lap. The vehicle then pulled away and the security officer reported the incident to the police. Police arrived at the scene, but were unable to locate the car.
At approximately 3:30 a.m., the same vehicle returned to the valet area. Officer Justin Draper went to that location and found the car unoccupied. The vehicle eventually exited from the valet area and the officer pulled it over. The only person in the car was the driver (co-defendant). Officer Draper instructed co-defendant to exit the car, conducted a pat-down search, and told him that he believed there was a gun in the car. Co-defendant denied the existence of a gun and consented to a search of the vehicle. Co-defendant told the officer that the glove box was broken, and the officer then learned from co-defendant's mother that she believed the glove compartment was inoperable. Meanwhile, Officer Dayton Brown stopped defendant at a nearby location and conducted a pat-down search that revealed no contraband.
Officer Scott Sendrick, who had also been at the scene, left the area to watch the Bally's security footage and, after watching the video, notified Officer Draper that "it was an obvious handgun in the glove box." The police released co-defendant, towed the vehicle to the police forensics bay, and applied for a search warrant.
Detective Thomas Holton prepared a search warrant affidavit, which stated the Bally's security video showed that "there were [two] black males sitting within the [vehicle] in the Bally's Valet area" and "[t]he front seat passenger then grab[bed] the handgun, holding it in his hand on his lap area between his legs." Detective Holton explained in his affidavit that he recognized the driver in the video as co-defendant and Officers Draper and Sendrick recognized the passenger as defendant. The detective indicated that co-defendant and his mother informed him that the glove box was locked and inoperable, which contradicted what the Bally's Casino surveillance tape showed. Finally, the detective outlined the criminal histories of defendant and co-defendant. A municipal court judge issued a warrant to search the vehicle, the police "jack open[ed]" the glove box, and located the gun.
Defendants moved to suppress the admission of the gun into evidence contending that there was no probable cause to issue the search warrant. The motion judge determined that Bally's security staff was a reliable informant and the vehicle matched their description. The judge found that Officer Draper "possessed a reasonable suspicion of criminal activity, specifically, the presence of a weapon inside the motor vehicle which was supported by facts known to him at the time." The judge further noted that the fact that an occupant of the car may have removed the gun from the glove box and taken it with him did not defeat the existence of probable cause. The judge then denied the motion to suppress.
The matter proceeded to trial and the jury found defendant guilty of the second-degree charge. The judge sentenced defendant to a seven-year prison term with forty-two months of parole ineligibility, ...