NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-04-1197.
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
Before Judges Reisner and Ostrer.
After the court denied his motion to suppress a handgun seized from a warrantless search of the vehicle in which he was traveling, defendant Jean Claude Wright was convicted by a jury in absentia of two counts of first-degree robbery, N.J.S.A. 2C:15-1(a); one count of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); one count of third-degree terroristic threats, N.J.S.A. 2C:12-3; and two counts of fourth-degree aggravated assault, pointing a firearm, N.J.S.A. 2C:12-1(b)(4). Judge Richard F. Wells then sentenced defendant to concurrent terms of eleven years on the robbery counts, of which defendant was required to serve eighty-five percent before parole eligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court merged the remaining counts into the robbery counts.
Defendant now appeals. He argues the court erred in denying his suppression motion; one of the robbery convictions was against the weight of the evidence; he should have received a sentence in the second-degree range; and he was wrongfully denied jail credits. He sets forth his points on appeal as follows:
THE SEARCH CANNOT BE JUSTIFIED UNDER THE PLAIN VIEW OR AUTOMOBILE EXCEPTIONS TO THE WARRANT REQUIREMENT.
A. Because the Officers Had No Reason to Believe That There Were Additional Suspects in the Trunk of the Car, They Had No Legal Basis to Enter the Car and Open the Glove Compartment to Access the Trunk Release. Thus, Any Evidence Observed from That Position Was Not in Plain View.
B. Exigency Cannot Excuse This Warrantless Search Because in Officer Wenger's Assessment, It was Feasible to Impound the Car Pending Application for a Search Warrant.
THE FIRST-DEGREE ROBBERY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE THE FACTS ADDUCED AT TRIAL FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT WRIGHT COMMITTED A THEFT AGAINST RANIERI (Not Raised Below).
WRIGHT SHOULD BE RE-SENTENCED AS A SECOND-DEGREE OFFENDER.
POINT IV PURSUANT TO STATE V. HERNANDEZ, 208 N.J. 24 (2011), WRIGHT IS ENTITLED TO JAIL CREDITS FOR THE TIME SPENT IN BURLINGTON COUNTY PRIOR TO HIS SENTENCING ON THE PRESENT MATTER.
Having carefully reviewed the record in light of the applicable legal principles, we affirm the suppression order, the conviction, and the sentence, but remand to correct the judgment of conviction to award defendant the disputed jail credits. The only issue worthy of extended discussion is the appropriateness of the warrantless search and seizure. We address that issue first, and briefly consider the remaining issues.
The sole witness at the suppression hearing was Burlington Township Police Sergeant Stephen Wenger. The State also introduced into evidence the mobile video recording (MVR) of the traffic ...