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State v. Davis

Superior Court of New Jersey, Appellate Division

November 1, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JAMES M. DAVIS, Defendant-Appellant

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 23, 2013

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 08-07-1189 and 08-07-ll97.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, and Susan Berkow, Special Acting Assistant Prosecutor/Special Deputy Attorney General, of counsel and on the brief).

Before Judges Simonelli and Haas.

PER CURIAM

After the trial court denied his motion to suppress evidence in connection with Middlesex County Indictment Nos. 08-07-1189 and 08-07-1197, defendant James Davis pled guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; third-degree possession of a controlled dangerous substance (CDS) with intent to distribute on or near school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a; second-degree possession of a firearm while committing a CDS offense, N.J.S.A. 2C:39-4.1; and second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7b. In accordance with the negotiated plea, the judge sentenced defendant to an aggregate term of fifteen years, with an eight-year period of parole ineligibility. The remaining counts of the indictments were dismissed. Appropriate fines and penalties were also assessed. We affirm.

Officer William Lopez of the Perth Amboy Police Department was the only witness to testify at the suppression hearing. On March 8, 2008, Officer Lopez was on patrol in a marked police vehicle. At approximately 1:30 p.m., he received a dispatch stating that a citizen had called 9-1-1 to report that a man in a barber shop had a weapon. The caller described the individual as a "stocky" black male, with dreadlocks, and a brown jacket.

Officer Lopez drove to the barber shop and arrived within five minutes of receiving the dispatch. He observed an individual, later identified as H.D., [1] standing in the doorway of the shop. H.D. was pointing at a stocky black male, with dreadlocks, who was wearing a brown jacket. As he pointed, H.D. yelled to the officer, "that's him, that's him." The individual, later identified as defendant, began to walk away "in a brisk manner." Officer Lopez walked toward defendant and asked him to stop. Defendant slowed his gait, but continued to walk away from the officer.

After asking defendant "at least two or three times" to stop and talk to him, the officer told defendant to put his hands on the wall of a building. Defendant did not immediately comply, but then did so. Officer Lopez testified he conducted a patdown search of defendant "for my safety as well as his." The officer felt "[a] heavy object, a bulge" on the left side of defendant's jacket. Based on his training, Officer Lopez believed the object was a handgun.

Officer Lopez testified that defendant "began to struggle" and "started pulling" the officer's hand away from the object. By that time, Sergeant Gregowicz had arrived to assist and both officers proceeded to "safely handcuff" defendant. Officer Lopez was then "able to pull out a handgun from inside" defendant's jacket. The handgun was loaded with six hollow point bullets. After the handgun was seized, another officer searched defendant and found two bags containing a total of fourteen packets of crack cocaine.

The judge denied defendant's motion to suppress the handgun and cocaine seized from him. Based upon the citizen's report, the judge found that Officer Lopez had an "articulable suspicion" that defendant was involved in criminal activity and, therefore, the officer ...


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