Opinion
DOCKET NO. A-2551-14T1
05-13-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ARTAJ M. NORTHROP, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 14-01-0014 and Accusation No. 14-08-0492. Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Artaj M. Northrop appeals from the denial of his motion to suppress the handgun police seized from him, arguing the officers did not have reasonable suspicion to conduct the pat down which led to its discovery. He also appeals from his sentence, claiming the trial judge failed to evaluate the Yarbough factors before imposing consecutive sentences. For the reasons that follow, we affirm the court's denial of defendant's motion to suppress, and remand for resentencing.
State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
We discern the following facts and procedural history from the record. In January 2014, defendant was indicted and charged with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count One), second-degree possession of a weapon while committing a violation of N.J.S.A. 2C:35-5, N.J.S.A. 2C:39-4.1 (Count Two), second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Three), third-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (Count Four), third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (Count Five), third-degree possession with intent to distribute cocaine within 1,000 feet of a school zone, N.J.S.A. 2C:35-7 (Count Six), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (Count Seven).
In April 2014, defendant was indicted and charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Defendant was subsequently charged in an accusation with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).
The trial judge denied defendant's motion to suppress evidence related to the January indictment. Defendant thereafter pled guilty to Count Three of the January indictment and the accusation. In exchange for his guilty plea, the State agreed to recommend consecutive terms of five years in state prison with a three and one-half year period of parole ineligibility for both Count Three of the January indictment and the charge in the accusation. The State also agreed to dismiss the April indictment and all remaining counts in the January indictment. The trial judge sentenced defendant to the recommended aggregate term of ten years in state prison with a seven-year parole disqualifier.
The following are facts derived from the hearing on the motion to suppress. On September 28, 2013, Patrolmen Shawn Simpkins and Cody Henderson were patrolling the area of Wesley and Akin Street in Salem City, a "high-crime area . . . , rife with narcotics activity, [and] shootings." At approximately 2:18 a.m., the officers pulled up to a stop sign and saw "an unknown person riding a bicycle without a light . . . down the middle of the street." They exited their vehicle and approached defendant to speak with him. Defendant was wearing a dark jacket which hung over the waistband of his pants, and rode the bike behind two cars. As the officers came closer to defendant, Simpkins identified him as Artaj Northrop based on "previous contacts."
Some months prior to the arrest, "a confidential reliable informant . . . advised [Simpkins] that they knew [defendant] to be in possession of handguns, as well as selling cocaine." However, the investigation involving that informant "didn't come to fruition."
Simpkins called out to defendant by name, and informed him he was being stopped for not having a light on his bike. Simpkins described defendant to be "wide-eyed" as if he "was very surprised to see [Simpkins]." Defendant began to "breathe heavily" and "sweat from his brow." However, Henderson observed defendant's demeanor to be "just normal." Pointing down Akin Street, defendant stated, "I'm just going down here[,]" and began to walk away. Simpkins advised defendant to stop as he "wasn't finished [speaking with him] yet[.]"
Defendant then "reached his [left] hand into his left pocket" and offered to provide identification. Simpkins saw a bulge in defendant's pocket that he believed to be a wallet, and told defendant "I already know who you are; I don't need you[r] ID at this time." Simpkins then told defendant to remove his left hand from his pocket. Defendant did not comply or respond, and instead looked up and down the street. Because defendant did not remove his hand from his pocket after a second demand, Simpkins "grabbed his wrist." Approximately five seconds elapsed between the first and second demand for defendant to remove his hand from his pocket.
Defendant still refused to comply, so Simpkins forcefully removed defendant's hand from his pocket. At that point, Henderson grabbed defendant's right arm and Simpkins informed defendant he was not under arrest, but he "wanted to conduct a pat down of his person for weapons, for [their] safety." Defendant then began to "look frantically up and down the street" and repeatedly yelling "[t]hey're trying to search me without a warrant[!]" Simpkins reiterated that defendant was not under arrest and that he only wished to perform a pat down for weapons.
As the pat down conducted by Simpkins approached defendant's waist, defendant "started to move his hips away." Simpkins then "struck a solid object" which he immediately believed was "probably, the butt of a handgun." At that point, defendant "attempted to flee." The officers were able to grab defendant and arrest him, despite defendant's continued attempt to "break free." By then, Sergeant Pugh was at the scene. As they lifted defendant off the ground, Simpkins observed a "long-barreled revolver . . . [the barrel] sticking about an inch . . . inside of his waistband," which was "almost all completely out." The gun, a ".38 caliber revolver," then fell to the ground and Simpkins recovered it.
At the police station, the officers conducted a more thorough search of defendant's person and recovered several bags of suspected cocaine and nine pills. Following the seizure of the drugs, defendant admitted he was scared because he was in possession of drugs but claimed the police planted the gun on him.
Samuel Hazelton testified on defendant's behalf. He claimed he was riding the bike in the area and dismounted it near the intersection of Wesley and Akin Street. He walked around the corner of Wesley, at 2:00 a.m., to get money from his friend Joe so he could get to work the following morning. Hazelton was not aware of Joe's last name. Hazelton claimed he was away from his bike for one or two minutes.
The trial judge determined the stop of defendant was proper as there was "a reasonable and articulable suspicion that" defendant committed a violation of N.J.S.A. 39:4-10, which requires "[e]very bicycle . . . in use at nighttime . . . [to] be equipped with a lamp on the front . . . [and] rear." The judge found there was reasonable suspicion justifying a Terry pat down for officer safety, and denied the motion to suppress. In making his decision, he relied upon the following facts: the time of night, high-crime area, the "stale" tip relating to defendant's potential gun possession, defendant's nervous demeanor, and his refusal to remove his hand from his pocket as repeatedly demanded by Simpkins.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
While imposing a consecutive term at the sentencing hearing, the trial judge provided the following reasoning:
THE COURT: I would suggest that [a]ggravating [f]actors [three] and [nine] should . . . both be given full weight. Three, the risk that he[ wi]ll commit another offense, based on [twenty-two] contacts with the system within ten years. And, nine, the need to deter him and others from violating the law.
The only mitigating factor I find, would be [ten]. I[ wi]ll still give that full weight; but, the reality is, he[ ha]s already had multiple probationary terms as a juvenile, and was not successful . . . on them.
. . . .
I do find that the aggravating factors outweigh the mitigating factors.
This is a negotiated [p]lea, and I find no reason not to follow it.
. . . .
I should also note in evaluating the defendant's application to change this from consecutive to concurrent, I note that as a part of this negotiated [p]lea, substantial other offenses were dismissed as part of the negotiated [p]lea, which could have extended his time dramatically; and, particularly, if he had gone to trial and had been convicted in each of the cases of the distribution offenses, along with the weapon[]s offenses; because, that would have carried, on the second conviction, a mandatory extended term.
Defendant appeals from the order denying his motion to suppress the handgun, and from his sentence, raising the following claims:
POINT I:
THE ITEMS SEIZED FROM DEFENDANT'S PERSON SHOULD HAVE BEEN SUPPRESSED AS FRUITS OF AN ILLEGAL WARRANTLESS SEIZURE AND SEARCH. BECAUSE NO REASONABLE SUSPICION SUFFICIENT TO JUSTIFY A FRISK EXISTED, THE PATDOWN AND SEARCH OF DEFENDANT WAS UNCONSTITUTIONAL.
POINT II:
THE SENTENCE IMPOSED ON DEFENDANT MUST BE VACATED AND THE CASE REMANDED FOR RESENTENCING BECAUSE THE COURT BELOW GAVE NO ADEQUATE REASONS FOR IMPOSING THEM CONSECUTIVELY.
When reviewing a determination on a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). We do so, noting those findings "are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Mann, 203 N.J. 328, 336-37 (2010) (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). The trial court's factual findings are "entitled to deference unless they were 'clearly mistaken' or 'so wide of the mark' that the interests of justice require[] appellate intervention." State v. Elders, 192 N.J. 224, 245 (2007). However, legal determinations based on those findings are afforded no deference and are subject to our de novo review. Gamble, supra, 218 N.J. at 425.
Here, defendant concedes the "police [had] good cause to stop [him] and give him a citation" for a "violation of N.J.S.A. 39:4-10." Therefore, we address only his contention that "no reasonable suspicion sufficient to justify a frisk existed."
The State bears the burden of establishing the validity of the search by a "preponderance of the evidence." State v. Sugar 100 N.J. 214, 238 (1985). In the context of a "Terry search," an officer may "pat down a citizen's outer clothing when the officer 'has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.'" State v. Nishina, 175 N.J. 502, 514-15 (2003) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). The court should evaluate the reasonableness of a pat-down based on a totality of the circumstances. State v. Arthur, 149 N.J. 1, 11 (1997).
Furthermore, "[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." State v. Valentine, 134 N.J. 536, 543 (1994) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). See also State v. Otero, 245 N.J. Super. 83, 89 (App. Div. 1990) ("refus[ing] to let their hands be seen . . . , was clearly sufficient to cause the officers to have an objective and reasonable belief that the suspects might have been armed").
Here, defendant argues the trial judge "placed far too much emphasis on defendant's reluctance to comply immediately with police commands" to remove his hand from his pocket. We disagree. This case is analogous to Valentine where the officer was on patrol in a high-crime area late at night and "observed [the] defendant duck behind a tree[.]" Valentine, supra, 134 N.J. at 539. The defendant then emerged from the tree "with his hands in his pockets." Id. at 540. The officer was familiar with the defendant as someone who "had been involved in weapons offenses." Ibid. Upon inquiry, the defendant stated he was going to urinate behind the tree despite the fact "he lived 'right around the corner.'" Ibid. Given the defendant's response and his inability to make eye-contact, the officer ordered the defendant to remove his hands from his pockets. Ibid. After the defendant did not comply, the officer conducted a pat-down search and discovered a knife in his pocket. Ibid. The Supreme Court held the pat down was "eminently reasonable." Id. at 551.
Here, defendant rode his bike behind two cars while being approached by the police. After being told he was stopped for not having a light on his bike, defendant attempted to walk away. Simpkins told defendant he did not need to provide identification and ordered defendant to remove his hand from the pocket. Defendant began looking up and down the street as he failed to comply with Simpkins' repeated demand to remove his hand from the pocket.
Simpkins "grabbed" defendant's wrist, and after a brief struggle, was able to remove defendant's hand from the pocket. Simpkins then conducted a pat down of defendant and felt a "solid object" that was "probably, the butt of a handgun." Defendant attempted to flee but was quickly restrained and arrested. As Simpkins and Henderson cuffed defendant and lifted him off the ground, Simpkins observed a .38 caliber revolver, which fell to the ground from defendant's waistband.
After considering the totality of the circumstances, it is clear the State proved by a preponderance of the evidence that the officers had "reason to believe that [they were] dealing with an armed and dangerous individual." Nishina, supra, 175 N.J. at 514 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). Therefore, we affirm the denial of defendant's motion to suppress.
Next, we address defendant's sentence. When reviewing a sentence, we must afford trial courts "great deference and '[j]udges who exercise discretion and comply with the principles of sentencing remain free from the fear of second guessing.'" State v. Dalziel, 182 N.J. 494, 501 (2005) (alteration in original) (quoting State v. Megargel, 143 N.J. 484, 494 (1996)). If "the proper legal principles have not been applied or the facts found by the [trial] judge are not supported by the record . . . it is for the [trial] judge to resentence[.]" Dalziel, supra, 182 N.J. at 501-02.
The Supreme Court in State v. Roth, 95 N.J. 334, 365-66 (1984), established the principles we must follow when reviewing a sentence. We must determine:
[F]irst, whether the correct sentencing guidelines . . . have been followed; second,
whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.
[Ibid.]
When sentencing a defendant for multiple offenses, "such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence[.]" N.J.S.A. 2C:44-5(a). The Supreme Court provided the following criteria for a court to consider when deciding whether to implement a concurrent or consecutive sentence:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
[Yarbough, 100 N.J. at 643-44.]
Yarbough was superseded in part by N.J.S.A. 2C:44-5(a) which states "[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses." Therefore, factor six of Yarbough is inapplicable. --------
Ordinarily, when a sentencing "court fails to give proper reasons for imposing consecutive sentences . . . a remand [is] required for resentencing." State v. Randolph, 210 N.J. 330, 353 (2012) (second alteration in original) (quoting State v. Carey, 168 N.J. 413, 424 (2001)). See also State v. Miller, 205 N.J. 109, 129 (2011) (remanding for resentencing because Yarbough factors were not addressed). Although "sentences can be upheld where the sentencing transcript makes it possible to 'readily deduce' the judge's reasoning . . . , those cases are the exception, not the rule." Ibid. (citations omitted).
Here, the trial judge simply failed to address the Yarbough factors during the sentencing hearing. The sole basis provided for imposing a consecutive term was that the State recommended it pursuant to a negotiated plea bargain. Although the court may consider a plea agreement during sentencing, State v. S.C. 289 N.J. Super. 61, 71 (App. Div.), certif. denied, 145 N.J. 373 (1996), it may not wholly ignore the Yarbough factors when imposing a consecutive sentence. Additionally, we determined the sentencing transcript does not reveal the judge's consideration of any Yarbough factors. Therefore, we remand for resentencing.
Affirmed in part; remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION