Opinion
DOCKET NO. A-0637-14T3
04-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FRANCIS J. GONZALEZ, a/k/a FRANCIS GONZALEZ, JOEL GONZALEZ, NELSON MARTINES, NELSON MARTINEZ, FRANCIS JOEL GONZALEZ, JUAN DOE, and JOHN DOE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Higbee. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-05-1525. Joseph E. Krakora, Public Defender, attorney for appellant (Alicia Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
On May 7, 2013, defendant Francis Gonzalez was indicted and charged with drug and weapons related offenses. After his motion to suppress evidence was denied, defendant pled guilty to second-degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b). Defendant was sentenced to a five-year term of imprisonment subject to thirty-six months of parole ineligibility, N.J.S.A. 2C:43-7.2.
We discern the following facts from the record on appeal. On September 12, 2012, the State Police were surveilling a known drug trafficking area. During the surveillance, an individual was observed walking to a Crown Victoria where money was exchanged between the individual and defendant who was seated in the vehicle's passenger seat. After observing other hand-to-hand transactions, the surveillance officers instructed an arrest team to apprehend the individuals involved.
The arrest team approached in a police van and parked next to the Crown Victoria. Detective Robert Gates exited the police van and observed the butt of a handgun underneath defendant's left thigh while looking through the Crown Victoria's front windshield. Detective Gates withdrew his weapon from his holster and notified the arrest team defendant possessed a gun. Defendant was placed under arrest, and the gun was seized from the vehicle by another officer on the arrest team.
Defendant brought a motion to suppress the evidence seized. At the suppression hearing, there was testimony Detective Gates was advised by the surveillance team that numerous hand-to-hand transactions were observed, including money being exchanged to defendant in the Crown Victoria. Defendant objected to this testimony as hearsay. Judge Samuel D. Natal effectively overruled the objection finding the testimony was merely "to give me a basis for the officer going to the location, as being called as a member of the arrest team to go to that location." Detective Gates also testified he did not seize the handgun but according to a police report he authorized, it was seized by another arrest team officer. Judge Natal allowed Detective Gates to read from the police reports over defendant's objections.
Judge Natal proceeded to find Detective Gates credible, and concluded the evidence was properly seized.
Defendant appeals, raising the following point:
THE TRIAL COURT RELIED ON UNRELIABLE HEARSAY AND ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE RESULTING FROM A WARRANTLESS SEARCH U.S. CONST. AMEND. IV; N.J. CONST. ART. I, [¶] 7 (RAISED BELOW).
When reviewing a motion to suppress, we "must defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J. 249, 262 (2015). We defer to the trial courts' credibility findings because they "are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). We review matters of law de novo. State v. Ghandi, 201 N.J. 161, 176 (2010).
The United States and the New Jersey Constitutions both protect citizens against unreasonable search and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. A warrantless search is presumptively invalid unless it falls within one of the exceptions to the warrant requirement. State v. Alston, 88 N.J. 211, 230 (1981). Plain view is an exception to the warrant requirement. State v. Bruzzese, 94 N.J. 210, 235-36 (1983). Three prongs must be satisfied in order for the plain view exception to apply:
(1) the officer was "lawfully in the viewing area," (2) the officer discovered the evidence "inadvertently, meaning that he did not know in advance where the evidence was located nor intend beforehand to seize it," and (3) it was "immediately apparent" that the items "were evidence of a crime, contraband, or otherwise subject to seizure."
[State v. Earls, 214 N.J. 564, 592 (2013) (quoting State v. Mann, 203 N.J. 328, 341 (2010)).]
We find Judge Natal correctly denied defendant's motion to suppress. There was sufficient evidence presented to show the handgun was properly seized under the plain view exception to the search warrant requirement. First, Detective Gates was lawfully standing outside the Crown Victoria on a public street where he saw, through the vehicle's front windshield, the butt of a handgun. Second, there was no evidence presented Detective Gates had prior knowledge defendant possessed an illegal handgun. Third, upon seeing the object underneath defendant's thigh, it was immediately apparent to Detective Gates based on his training and experience that the object was contraband. Once Detective Gates saw the handgun in plain view, he had probable cause to arrest defendant. Thus, after defendant was legally arrested, the arresting officers properly removed the contraband weapon from the car.
For completeness, we address defendant's argument concerning hearsay. We grant a trial court's evidentiary rulings substantial deference absent a showing of an abuse of discretion. State v. Nantambu, 221 N.J. 390, 402 (2015). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). The "hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" State v. Bankston, 63 N.J. 263, 268 (1973) (quoting McCormick on Evidence § 248 at 587 (2d ed. 1972)). But "when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule." Ibid. However, the holding in Bankston is not applicable to a witness' testimony at a motion to suppress hearing. See id. at 270 (stating testimony elicited at motions to suppress evidence regarding whether officers had probable cause to arrest is "inapposite" to the Court's holding as the statements were not used to prove guilt).
A police record may be admissible at trial if it falls under an appropriate exception to the hearsay rule and does not run afoul with the Confrontation Clause's guarantee. See State v. Sweet, 195 N.J. 357, 368 (2008), cert. denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009); N.J.R.E. 803(c)(6); U.S. Const. amend. VI. Generally, hearsay safeguards do not apply in suppression hearings. See State v. Bynum, 259 N.J. Super. 417, 420 (App. Div. 1992) (holding "evidentiary rules generally do not apply in a[] [suppression hearing].").
In this case, even if the hearsay rules and Bankston apply, Detective Gates' testimony was not offered for the truth of the matter asserted. We held in State v. Tarver, 272 N.J. Super. 414, 432 (App. Div. 1994), testimony made by a declarant officer regarding information received by a third party about a defendant is admissible to show why the declarant officer was present at a certain location because it was not used for the purpose of proving the truth of the matter asserted, that the defendant was engaged in narcotic transactions, but to explain why the officer originally responded to the scene.
Here, Detective Gates' testimony concerning why he was in defendant's vicinity was admissible because it was not offered to prove defendant was engaging in drug transactions. Rather, like Tarver, it was used only to show why Detective Gates was in a position to view defendant's illegal possession of a weapon. Additionally, Detective Gates' statements regarding which officer seized the handgun had no bearing on whether it was properly seized because after he saw the handgun in plain view, Detective Gates advised the other members of the arrest team defendant had a weapon.
Additionally, defendant's contention the officers improperly seized money from his person post arrest lacks merit. After defendant's legal arrest, the arresting officers properly conducted a search incident to arrest for safety and evidential purposes. See State v. Minitee, 210 N.J. 307, 318 (2012) (stating "[w]hen the police place an individual under arrest, they may search his person and the area within his immediate grasp."); see also State v. Eckel, 185 N.J. 523, 530 (2006) (stating a search incident to arrest's historical rationale is the need to disarm the suspect and preserve evidence). For the above reasons, we affirm.
Affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION