Opinion
DOCKET NO. A-3603-14T2
05-24-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANA A. USERY, a/k/a ANTHONY J. BROOKSIDE, a/k/a DANA SNEAD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 14-02-0151. Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Dana A. Usery pled guilty to one count of second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b), and was sentenced to a seven-year custodial term with a five-year period of parole ineligibility. Defendant appeals the judgment of conviction entered by the court on February 25, 2015. We affirm.
I.
We discern the following facts and procedural history from the record. On February 4, 2014, a Mercer County Grand Jury returned an indictment charging defendant with first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count four); and two counts of certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b) (counts five and six).
The court conducted an evidentiary hearing on defendant's motion to suppress evidence. City of Trenton Police Detective Otis Wood testified that on May 20, 2013, he was assigned to the U.S. Marshal's New York and New Jersey Regional Task Force Unit and was informed by the Trenton Police Department that an arrest warrant for defendant had been issued for robbery, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose.
On May 22, 2013, Wood went with six other officers to arrest defendant at the home of defendant's mother and sister on Kent Street in Trenton. Wood testified that the officers arrived at the residence, searched it with their consent, but did not locate defendant. Defendant's mother provided the officers with an address for defendant on Rutherford Street in Trenton.
The officers went to the Rutherford Street address, knocked on the door, and did not get a response. One of the officers advised Wood that he observed defendant look out from a window on the second floor. Wood climbed through an unlocked window, opened the front door, and he and the other officers entered and searched the premises for defendant.
During the officers' search of the first floor, Wood observed an open black bag containing what he recognized as bullets. As the officers began their search for defendant on the second floor, defendant exited a bedroom wearing boxer shorts and a tank top. Defendant was informed about the arrest warrant and was taken into custody.
Wood asked defendant where his pants were located so defendant could be fully clothed following his arrest and during his transport from the premises. Defendant advised Wood that his pants were in the bedroom he had just exited. Wood entered the bedroom and observed the handle of a very large gun protruding from a holster on the bunk bed where defendant's pants were located.
Wood did not take possession of the handgun, but instead requested that an evidence technician come to the scene to collect it as evidence. Wood also observed two holsters on a radiator and ammunition on a dresser in the bedroom. Trenton Police Detective Damon Jefferson subsequently arrived at the scene, retrieved the gun, holsters, and ammunition from defendant's bedroom, and photographed the items in the locations they were observed by Wood.
Prior to giving defendant the pants, Wood searched the pockets and found a black ski mask. Defendant put the pants on prior to being transported from the premises.
Defendant's mother and sister also testified at the suppression hearing. They resided in two separate apartments within the same residence on Kent Street. They testified that on May 22, 2013, police officers walked through their apartments searching for defendant. They disputed Wood's testimony and denied giving the officers consent to enter and search their apartments. They also testified that they were not present during the officers' actions at defendant's home on Rutherford Street.
Defendant testified that the gun, ammunition, and holsters found at his residence were his, but disputed Wood's version of the events. Defendant stated that Wood was not present when an officer climbed through the first floor window of his home and that the other officers entered and placed him under arrest.
Defendant said he was wearing boxer shorts and a tank top when he was placed under arrest and was then escorted to the front porch of his home where he remained for about forty-five minutes while the officers stayed in the residence. According to defendant, while he was on the porch, Wood and another officer arrived at the scene and entered his home. Wood later brought pants to defendant, which defendant put on prior to being transported from the scene.
Defendant testified that the photographs of his bedroom that were admitted in evidence did not accurately depict the location of the items as he had left them when he exited the bedroom immediately prior to his arrest. He stated that the gun was not on the bunk bed or in the holster. He testified the gun was in a dresser drawer and the holster was on the bed without a gun in it.
The court issued a written decision finding that Wood was a more credible witness than defendant and concluding that the evidence was properly seized under the plain view exception to the warrant requirement. The court denied defendant's suppression motion.
On October 24, 2014, defendant pled guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b), under count six pursuant to a plea agreement. On February 13, 2015, defendant was sentenced to a seven-year custodial term with a five-year period of parole ineligibility. The court dismissed the remaining counts of the indictment and a separate indictment in accordance with the plea agreement. This appeal followed.
II.
On appeal, defendant argues:
POINT I:
THE TRIAL COURT JUDGE ERRED IN BELIEVING THE POLICE OFFICER'S TESTIMONY. THE DEFENSE VERSION OF THE EVENTS COMPELLED THE GRANTING OF THE MOTION TO SUPPRESS SINCE, UNDER THAT VERSION, THE GUN WAS IN A CLOSED DRAWER AND NOT IN PLAIN VIEW, U.S. Const. Amends., IV, XIV; N.J. Const. Art. I, para. 7.
We turn our attention to defendant's singular contention that the court erred because it did not accept his version of the salient facts. Defendant argues that his testimony and the testimony of his mother and sister was more credible than Wood's testimony and should have been accepted by the trial court. More particularly, defendant contends that because his testimony that the gun was in a dresser drawer was more credible, the court erred in finding that the gun was found in plain view on the bunk bed.
Our standard of review of a trial court's fact-finding on a motion to suppress has been summarized as follows:
We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243-44 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). Deference to those findings is particularly appropriate when the trial court has the "'opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record. Ibid. Moreover, we need not defer "to a trial or appellate court's interpretation of the law" because "[l]egal issues are reviewed de novo." State v. Vargas, 213 N.J. 301, 327 (2013).
[State v. Watts, 223 N.J. 503, 516 (2015) (alteration in original).]
Based upon our review of the record, we are convinced that the court's factual findings are supported by sufficient credible evidence in the record. We defer to the court's determination that Wood's testimony was more credible than defendant's because it had the opportunity to observe and hear the witnesses testify during the suppression hearing and obtain a "feel of the case" which we do not enjoy. State v. Harris, 211 N.J. 566, 578 (2012) (quoting Elders, supra, 192 N.J. at 244).
The court's finding that the gun was on the bunk bed in Wood's plain view is supported by the testimony of Wood, which the court found credible. The court rejected as not credible defendant's testimony that the gun was located in a dresser drawer outside of Wood's plain view. We discern no basis in the record to reverse the court's findings of fact because they are supported by Wood's testimony and there is no showing that "they are so clearly mistaken that the interests of justice demand intervention and correction." Ibid. (quoting Elders, supra, 192 N.J. at 244).
Although the court did not make an express finding as to the credibility of defendant's mother and sister, they had no knowledge regarding what occurred at defendant's residence and even if their testimony was accepted, it had little bearing on whether Wood observed the gun, holsters, and ammunition in plain sight in defendant's bedroom. --------
Moreover, defendant does not dispute that Wood's testimony supports the court's legal conclusion that the gun, ammunition, and holsters were properly seized under the plain view exception to the warrant requirement. See State v. Keaton, 222 N.J. 438, 448 (2015) (holding that evidence in plain view may be lawfully seized where the "officer is 'lawfully . . . in the viewing area'" where the evidence is discovered, "it is immediately apparent the object viewed is 'evidence of a crime, contraband, or otherwise subject to seizure,'" and the object is discovered "inadvertently, meaning that [the officer] did not know in advance where evidence was located nor intend beforehand to seize it." (first alteration in original) (quoting to State v. Johnson, 171 N.J. 192, 206-07 (2002))). Defendant argues only that his testimony established that the gun was in a drawer and therefore not within Wood's proper viewing area. As noted, the court rejected defendant's testimony as not credible.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION