STATE OF NEW JERSEY VS. ANDRE R. GADDY (18-05-0273, UNION COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3046-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDRE R. GADDY, a/k/a
DRIZ, AND DIZZY,
Defendant-Appellant.
_______________________
Submitted March 18, 2020 – Decided March 11, 2021
Before Judges Fuentes and Haas.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 18-05-0273.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stefan Van Jura, Assistant Deputy Public
Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (William P. Cooper-Daub, Deputy Attorney
General, of counsel and on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
A Union County Grand Jury returned indictment 18-05-0270 charging
defendant Andre R. Gaddy with one count of second degree possession of a
handgun by a person previously convicted of one of the offenses listed in
N.J.S.A. 2C:43-7b(1). A separate Union County Grand Jury returned indictment
18-05-0273 charging defendant with second degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5b(l), fourth degree unlawful possession of hollow
point bullets, N.J.S.A. 2C:39-3f(l), third degree hindering apprehension,
N.J.S.A. 29-3b(l), and third degree receiving stolen property, N.J.S.A. 2C:20-
7a.
After the trial court denied his motion to suppress the evidence supporting
the charges against him, defendant entered into a negotiated agreement with the
State through which he pled guilty to second degree unlawful possession of a
handgun. In return, the State agreed to dismiss the remaining counts in both
indictments and recommend the court sentence defendant to a term of seven
years, with forty-two months of parole ineligibility pursuant to the Graves Act,
N.J.S.A. 2C:43-6(c), to run concurrently with a sentence imposed in the
Somerset County vicinage.
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Defendant accepted the terms of the plea agreement and provided a factual
basis under oath to support his culpability. The court sentenced defendant on
February 15, 2019, to seven years in prison, with forty-two months of parole
ineligibility, to run concurrently with a sentence imposed for offenses
committed in Somerset County, in accordance with the terms of the plea
agreement.1
Defendant raises the following arguments in this appeal:
POINT I
AN UNCORROBORATED ANONYMOUS TIP, EVEN IN
CONJUNCTION WITH FLIGHT FROM POLICE IN A
HIGH-CRIME AREA, DOES NOT ESTABLISH
REASONABLE AND ARTICULABLE SUSPICION TO
CONDUCT AN INVESTIGATIVE DETENTION;
THEREFORE, THE EVIDENCE SHOULD BE
SUPPRESSED. [U.S. CONST., AMENDS. IV AND XIV;
N.J. CONST., ART. I, ¶ 7.]
POINT II
IN DENYING SUPPRPESSION, THE COURT
ERRONEOUSLY FOUND THAT DEFENDANT
LACKED STANDING TO CHALLENGE THE
SEARCH AND SEIZURE, THAT HE DID NOT
1
Defendant pled guilty in Somerset County to one count of third degree burglary
and two counts of third degree attempted burglary. N.J.S.A. 2C:18-2(a)(1) and
2C:5-1(a)(3). The Somerset court sentenced him to three years on each count, to
run concurrently. This sentence would also run concurrently with the sentence
imposed in Union County.
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HAVE A REASONABLE EXPECTATION OF
PRIVACY IN THE AREA SEARCHED, AND THAT
THE GUN WAS ADMISSIBLE PURSUANT TO THE
PLAIN VIEW DOCTRINE.
We reject these arguments and affirm. We derive the following facts
from the factual record developed before the trial court at the evidentiary hearing
conducted in response to defendant's motion to suppress.
Detective James Williams of the Plainfield Police Department was the
only witness called by the State. At the time of this hearing, Detective Williams
was assigned to the Narcotics Vice Section. He testified that on February 21,
2018, at approximately 6:51 p.m., he was in the 200 block of Pond Place, in an
area he described as "a residential neighborhood." Although it was dark at the
time he arrived, there were streetlights in the immediate area where "the incident
occurred" which provided good lighting.
Detective Williams was familiar with the area because he patrolled it
"pretty much on a daily basis . . . when [he was] out on patrol." He characterized
the area as "a high crime, high narcotic area . . . [and] the scene of numerous
shootings and homicides since I've been employed with the police department."
He reported to this area in response to a telephone call from a "concerned
citizen" who reported possible illicit activities. The caller claimed that "about
five to seven individuals . . . were congregating and engaging in disorderly
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activity" in a driveway on West 3rd Street "which is accessed from the 200 block
of Pond Place." The prosecutor followed up with the following questions:
Q. Were there any particular type of activities going on
in that area around the time of this incident?
A. Very -- disorderly activity such as gambling,
drinking in public, narcotic activity, gang activity.
....
Q. Was there any other specific information that was
relayed to you by this concerned citizen?
A. The concerned citizen relayed that [they] overheard
that one of them -- heard -- overheard a conversation in
regards to one of -- one of them, if not all of them, being
in possession of a firearm.
Q. Were you given any information with regard to a
particular individual?
A. No.
Q. Were you given the descriptions of any particular
individuals or anyone else in that area?
A. No.
Based on this information, Williams and other "police units" responded to
the area in unmarked police vehicles to investigate. According to Williams,
although the vehicles were not traditionally marked patrol cars, they are
nevertheless "very well known" because they are equipped with emergency
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lights and sirens. Furthermore, although the officers wore plain clothes, the y
had "visible police identifiers" such as "Plainfield Police baseball caps, detective
badges around our necks, tactical vests . . . [the] vest is actually a bullet proof
vest, it has Velcro police on the front and the back in white lettering."
On arrival, the officers saw approximately six to seven individuals sitting
and standing on the driveway that is adjacent to the sidewalk "engaging in
disorderly activity." When asked to specify, Williams responded: "Drinking in
public, smoking, just being loud and tumultuous." 2 From this group of
individuals, Williams testified that two men, later identified as defendant Gaddy
and Troy White, immediately attracted his attention. Williams testified that as
soon as he and Detective McCall alighted from their unmarked police car and
identified themselves as police officers, both men "reached into the front of their
waistband and turned their back . . . away from us and began running east
towards the back fence of that yard." Based on his training and experience,
Williams "believed" these two men "might have been in possession of a
weapon."
2
On cross-examination by defense counsel, Williams expanded on what he
meant by disorderly activity to include "gambling" and "shooting dice."
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Williams testified that he and other officers identified themselves as
police officers and began to chase the two men. They ordered the two men to
stop, to no avail. The police officers caught up to the two suspects seconds later,
when they reached a tall fence. Williams saw defendant pull from his waistband
what he "immediately recognized as a semi-automatic handgun . . . and throw it
. . . over the fence into the adjacent yard." The officers then "wrestled"
defendant and White to the ground and handcuffed them.
On cross-examination, defense counsel asked Williams for the name of
the "concerned citizen" who reported the disorderly conduct. This prompted an
immediate objection by the prosecutor who argued the identity of the caller was
protected under N.J.R.E. 516, which provides, in relevant part:
A witness has a privilege to refuse to disclose the
identity of a person who has furnished information
purporting to disclose a violation of a provision of the
laws of this State . . . and evidence thereof is
inadmissible, unless the judge finds that (a) the identity
of the person furnishing the information has already
been otherwise disclosed or (b) disclosure of his
identity is essential to assure a fair determination of the
issues.
Defense counsel argued that the information provided by the anonymous
caller was the only reason the police officers responded to the area where
defendant and the other individuals were located. Defense counsel emphasized:
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"That is why it is so crucial to find out what started this whole chain of events.
So that is why we need this information." According to defense counsel, it is
not enough for the caller to merely claim that he needs protection against
possible retaliation. Otherwise, "it would be very easy for citizens to take out
their vendettas against people[.]" The judge denied defendant's application
based on the plain language of N.J.R.E. 516.
In a memorandum of opinion, the judge found the police properly
responded to the caller's report of suspicious activities in a particular area of the
municipality. Upon their arrival, the officers observed defendant and White
engaged in conduct that provided reasonable suspicion to investigate further.
Before the officers had the opportunity to interact with them, defendant and
White ran from the scene and ignored repeated commands to stop. The judge
found
[t]he detectives were lawfully in the area where they
observed and seized the handgun. The detectives were
conducting a field inquiry from the public streets of
Plainfield—a place where they were lawfully allowed
to be present. The detectives then ran after [d]efendant.
Once . . . [d]efendant removed an object from his
waistband, Detective Williams identified the object as
a handgun. Defendant then threw the handgun over the
chain-link fence, leaving the handgun in plain view, in
a public area. Because the detectives were lawfully
present and the handgun was in plain view, the search
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and seizure of the handgun is lawful under the plain
view doctrine.
As an intermediate appellate court, 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. Handy, 206 N.J. 39, 44
(2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Against these facts,
we agree with the court's conclusion that under the plain view doctrine, the
police officers properly seized the handgun discarded by defendant. The officers
were lawfully in the viewing area and the nature of the evidence was
immediately apparent. State v. Gonzales, 227 N.J. 77, 82 (2016).
The information provided by the confidential caller had far more probative
value than similar information provided by an anonymous informant. State v.
Amelio, 197 N.J. 207, 212–13 (2008). We affirm the motion judge's decision
to deny defendant's request to reveal the identity of the "concerned citizen"
caller under N.J.R.E. 516 because defendant's unsubstantiated allegations of
need in this case were not sufficient to justify disclosure. State v. McDuffie,
450 N.J. Super. 554, 567 (App. Div. 2017).
Affirmed.
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