Opinion
DOCKET NO. A-4533-11T1
08-19-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDRE R. LEWIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson and Maven. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-10-3537. Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief). PER CURIAM
A Camden County grand jury indicted defendant Andre Lewis on charges of first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count four); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); two counts of second-degree possession of a firearm without a required permit, N.J.S.A. 2C:39-5b (counts six and nine); two counts of fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d (counts seven and ten); and two counts of second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7b (counts eight and eleven). Prior to trial, defendant moved to suppress the handgun recovered at the time of his arrest, which the trial court denied. The jury found defendant guilty of possession of a firearm without a required permit (count nine) and possession of a defaced firearm (count ten). At sentencing, the court imposed an aggregate sixteen-year prison term with a ten-year period of parole ineligibility, together with appropriate fines and penalties.
On appeal, defendant raises the following points for our consideration:
POINT IWe reject all of these arguments.
THE SEARCH OF DEFENDANT'S POCKET WAS UNCONSTITUTIONAL, AND THE HANDGUN WHICH THE POLICE ALLEGEDLY DISCOVERED AS A RESULT OF THE SEARCH SHOULD HAVE BEEN SUPPRESSED.
POINT II
THE COURT IMPROPERLY PERMITTED IRRELEVANT TESTIMONY WHICH IMPUTED A CRIMINAL DISPOSITION TO DEFENDANT.
POINT III
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
The evidence presented to the jury on which they convicted defendant arose from events occurring on December 12, 2008, when the victim, Mr. Moore, was shot while purchasing marijuana in Camden. As he attempted to drive away from the area where he was purchasing drugs, he was shot from the rear. In a written statement given to police the next day, Moore did not indicate he saw his shooter or knew the shooter. Police recovered eight nine-millimeter Luger shell casings. Subsequently, Moore provided police with a photograph of defendant he obtained from defendant's Myspace page, which he obtained from defendant's sister. He also identified defendant from a police photo array. One month later, police stopped a motor vehicle for traffic violations, in which defendant was a passenger. Another individual, Mr. Perry, whom the investigating officer knew from the area, was also a passenger in the vehicle, along with a third individual, later identified as Mr. Williams, seated in the rear of the vehicle next to defendant.
While questioning the driver, Officer Sanchez observed that Williams started acting suspiciously and asked him to exit the vehicle. He conducted a pat-down for his safety. Because defendant was also acting suspiciously, Officer Sanchez asked him to step outside the vehicle and, when he attempted to conduct a pat-down, defendant "pushed off" and attempted to run. He immediately apprehended defendant, who, without any prompting, admitted he had a gun in his possession. The officer recovered a defaced "highpoint black nine[-]millimeter handgun."
Defendant argues the trial court erred in denying his motion to suppress because the seizure of the weapon was the product of a warrantless search, not predicated upon reasonable and articulable suspicion that defendant had engaged in criminal activity or was about to engage in criminal activity. More specifically, defendant contends Officer Sanchez's testimony that he was acting nervously by placing his hand in his jacket pocket did not establish a sufficiently heightened awareness of danger to justify his removal from the stopped vehicle and subsequent "frisk." We find no merit to this argument.
The scope of appellate review of a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing an order granting or denying a motion to suppress evidence, the appellate court is obliged to defer to the motion judge's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted). However, no special deference is accorded to the motion judge's legal conclusions. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004); State v. Ventura, 353 N.J. Super. 251, 258 (App. Div. 2002). "When a question of law is at stake, the appellate court must apply the law as it understands it." State v. Mann, 203 N.J. 328, 337 (2010).
The Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution protect the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV, ¶ 1; N.J. Const. art. I, ¶ 7. This includes a prohibition against an investigatory vehicle detention "'except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law. . . .'" State v. Zapata, 297 N.J. Super. 160, 171 (App. Div. 1997) (quoting Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979), certif. denied, 156 N.J. 405 (1998).
Police encounter individuals in a myriad of ways, one of which is an investigative stop stemming from a motor vehicle violation, which were the circumstances surrounding the initial stop of the motor vehicle in which defendant was an occupant. The vehicle was observed with tinted driver's side and passenger side windows, contrary to N.J.S.A. 39:3-74, and the vehicle made a right turn, without its right-turn signal being activated, N.J.S.A. 39:4-126. In addition, when Officer Sanchez did a look-up of the license plate, he learned that the driving privileges of the vehicle's owner, which turned out to be Perry, had been revoked. Thus, the motor vehicle violations established a reasonable and articulable basis upon which to stop the vehicle. State ex rel. D.K., 360 N.J. Super. 49, 54 (App. Div. 2003) (holding officer had reasonable and articulable suspicion that driver had committed motor vehicle violations justifying the top of the vehicle).
That being said, we recognize the intrusion upon a passenger in a motor vehicle that has been stopped is greater than the intrusion upon a vehicle's driver who has been observed committing a motor vehicle violation. State v. Smith, 134 N.J. 599, 615 (1994).
To support an order to a passenger to alight from a vehicle stopped for a traffic violation, therefore, the officer need not point to specific facts that the occupants are "armed and dangerous." Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a
heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car.
In contrast, to justify a pat-down of an occupant once alighted from a vehicle, specific, articulable facts must demonstrate that a "reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry [v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968)].
[Id. at 618-19.]
Here, during the stop, Officer Sanchez testified that he observed defendant with his hands in his pocket and Williams looking around and bending "as if he was trying to reach underneath his body." He asked defendant to remove his hand from his pocket and noticed that defendant became nervous. As a result of Williams' actions, Officer Sanchez ordered Williams to step out of the car because he believed Williams may have been trying to conceal a weapon. After Williams' search, which did not yield a weapon, Officer Sanchez observed defendant's hand in his pocket again and ordered him out of the vehicle, which lead to defendant's attempt to escape and subsequently confessing to possessing a weapon. Those facts are sufficient to create a heightened awareness of danger. Additionally, Officer Sanchez testified that the area where the vehicle was stopped is a high crime neighborhood, and that he was familiar with Perry and his family's history of arrests for narcotics, weapons offenses, and involvement in homicides. Thus, in determining the totality of the circumstances surrounding Officer Sanchez's actions, the trial court was permitted to take into account Officer Sanchez's experience and knowledge when applying the totality of the circumstances test. Davis, supra, 104 N.J. at 504.
The judge's factual findings are accorded deference when they are supported by sufficient, credible evidence in the record. Elders, supra, 192 N.J. at 243. We discern no basis to disturb the trial judge's findings in this regard on this record.
Defendant next argues the court, in three instances, permitted the jury to hear irrelevant and highly prejudicial testimony, which prejudice was not cured, even where in one instance, a curative instruction was given. First, the court permitted testimony from Officer Sanchez about the Perry family's reputation as being known for possessing weapons. Second, the court permitted the jury to hear that defendant had prior arrest warrants. Third, the jury was allowed to hear testimony that defendant obtained services from the Office of the Public Defender (OPD). We find no merit to any of these contentions.
The testimony concerning the Perry family was relevant to explain why Officer Sanchez had a heightened sense of danger and concern for his safety. This testimony was related to Perry and obviously did not prejudice defendant, who was only convicted of the offense for which he admitted his culpability upon being apprehended. While we agree Officer Sanchez's testimony that he ran warrant checks on all defendants was irrelevant and prejudicial to defendant, we do not find its admission was so prejudicial to have resulted in a miscarriage of justice. Moreover, the trial court gave an immediate and strong curative instruction to the jury:
During the testimony[,] you heard by this officer that a warrant had been issued. There's to be no negative inference with respect to a warrant being issued. Warrants could be issued for a traffic ticket, could be issued for not showing up for support. My point is, I'm instructing you not to draw any negative inference with respect to the [d]efendants. Warrants are issued on many occasions, but you're not to assume or assess that there's any wrongdoing on behalf of any individual merely because a warrant for an arrest may have been issued.
The trial judge's "sharp and complete curative instruction" and his immediacy in giving the instruction alleviated any undue prejudice defendant may have sustained as a result of the testimony. See State v. Winter, 96 N.J. 640, 649 (1984); see also State v. Wakefield, 190 N.J. 397, 440, 452 (2007). The instruction was given immediately following defense counsel's objection and the subsequent sidebar. Because the trial court gave a "cautionary instruction[,] the jury was not misled in this case into using the [the evidence of outstanding warrants against defendant] as demonstrating criminal propensity." See State v. G.S., 145 N.J. 460, 476 (1996) (although trial judge failed to explain the specific purpose for which the other crime evidence was being admitted, reversal was not warranted because the trial judge repeatedly advised the jury it could not consider this evidence as reflecting criminal disposition).
Turning to defendant's contention that he was unduly prejudiced by inference to his utilizing service provided by the OPD, we agree the jury should not have heard this testimony. We do not, however, find this brief testimony was capable of producing an unjust result. R. 2:10-2. An inference of criminal propensity stemming from indigence is only logical when the desired crime is to obtain money, and not for more serious crimes involving violence. See State v. Mathis, 47 N.J. 455, 472 (1966). Defendant was not charged with an offense involving an intent to commit theft or robbery. See Ibid. Defendant was charged with murder, aggravated assault, and weapons offenses, none of which implicate the desire to obtain money.
Finally, defendant challenges the sentence imposed as excessive. We disagree.
In reviewing the excessiveness of a prison sentence, we first determine whether the correct sentencing guidelines have been followed. State v. Roth, 95 N.J. 334, 365 (1984). The fundamental sentencing guideline of the Code is that the punishment fit the crime, not the criminal. State v. Hodge, 95 N.J. 369, 376 (1984). The "inexorable focus" upon the offense is required when formulating a sentence. Roth, supra, 95 N.J. at 367. Next, we determine whether substantial evidence exists in the record to support the findings of fact upon which the sentencing court based the application of those guidelines. Id. at 365-66. Finally, we determine whether, in applying those guidelines to the relevant facts, the trial court clearly erred in reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. Id. at 366.
When a trial court follows the sentencing guidelines, a reviewing court will not second-guess the decision and will "'not sit to substitute its judgment for that of the trial court.'" State v. Jabbour, 118 N.J. 1, 5-6 (1990) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). Unless the sentencing court was "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shock[s] the judicial conscience," Roth, supra, 95 N.J. at 365, an appellate court is bound to uphold the sentence imposed. See O'Donnell, supra, 117 N.J. 215-16; cf. State v. Dunbar, 108 N.J. 80, 83 (1987) (finding that a sentence within statutory guidelines may strike the reviewing court as harsh, but that is a consequence of the legislative scheme and not error by trial court).
Measured under those standards, we are satisfied the trial judge adhered to the statutory mandates in imposing defendant's sentence to include engaging in the appropriate consideration of weighing aggravating and mitigating factors, N.J.S.A. 2C:44-1(a),(b). The judge also appropriately considered the requisite factors before imposing a consecutive sentence. State v. Yarbough, 100 N.J. 627, 643 (1985). Substantial, credible evidence supports the sentence imposed, which does not shock the judicial conscious. See Roth, supra, 95 N.J. at 365.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION