STATE OF NEW JERSEY VS. CORY L. CURE(14-03-0591 AND 14-12-3067, OCEAN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2373-15T1
STATE OF NEW JERSEY
Plaintiff-Respondent,
v.
CORY L. CURE,
Defendant-Appellant.
______________________________________________
Submitted May 9, 2017 – Decided July 31, 2017
Before Judges Rothstadt and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment Nos.
14-03-0591 and 14-12-3067.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rasheedah Terry, Designated
Counsel and on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Supervising Assistant Prosecutor, of counsel;
William Kyle Meighan, Assistant Prosecutor, on
the brief).
PER CURIAM
Defendant Corey Cure pled guilty to fourth-degree certain
persons not to possess a weapon (metal knuckles), N.J.S.A. 2C:39-
7(a), as charged in one indictment, and to fourth-degree tampering
with evidence, N.J.S.A. 2C: 28-6(1), as charged in a second
indictment. The court sentenced defendant to "time served," an
aggregate period of 321 days in jail. Defendant appeals from both
convictions, challenging the denial of his motion to suppress as
to the weapon he possessed and the denial of his motion to dismiss
the indictment as to the tampering charge. For the reasons stated
herein, we affirm his conviction for possession of a weapon, but
reverse his conviction for tampering.
An Ocean County grand jury initially charged defendant in an
indictment on March 18, 2014, with the "certain persons" offense
and fourth-degree possession of a prohibited weapon, N.J.S.A.
2C:39-3(e), based on his January 11, 2014 encounter with a police
officer. While pending trial, another Ocean County grand jury
charged defendant on December 11, 2014 with the tampering offense.
In the weapons offense action, defendant filed a motion to
suppress the metal knuckles found in his possession by the
arresting officer. That officer was the only witness for the
State at the suppression hearing. Defendant and an investigator
for the Public Defender's Office testified on behalf of defendant.
The facts adduced at the hearing are summarized as follows.
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Police officer Allen Mantz testified that, while on patrol
at approximately 2:00 p.m. on January 11, 2014, he observed
defendant from about two blocks away, walking in the middle of a
street, causing passing vehicles to "swerve[] around him." At the
time, one sidewalk along the roadway was closed and gated off.
According to the officer, defendant was not crossing the road or
walking diagonally to get to the other side. Defendant eventually
made his way out of the street to a sidewalk, and the officer
decided to "stop and talk" to defendant to "make sure everything
was okay," that defendant was not intoxicated, or that there was
not something wrong with him. Mantz testified there was no
"infraction" committed by defendant.
When the officer confronted defendant, he determined
defendant was not intoxicated. Mantz asked defendant to remove
his hands from his pockets and observed that defendant was wearing
"pants and . . . [a] blue or black windbreaker jacket" with deep
front pockets, located towards the bottom of his chest, that opened
at the top. Additionally, Mantz testified the jacket may have had
side pockets.
The officer inquired of defendant as to why he was walking
in the middle of the street. Defendant did not reply. The officer
sought to obtain defendant's "pedigree" information, as he
understood it was required whenever there was "an infraction"
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regardless of whether a summons was going to be issued. Mantz
asked for a driver's license, but defendant only provided a jail
identification card. In response to further inquiry, defendant
told the officer that he was coming from one local motel to
another, which was close to the area the officer had stopped
defendant. The officer understood from prior experience that the
motel to which defendant was going was a "high-crime area."
As defendant spoke to Mantz, the officer made several
observations about defendant. He noted that defendant had
difficulty maintaining eye contact, "stuttered," and appeared
"nervous." Moreover, despite the officer's instructions,
defendant repeatedly placed his hands in his pockets, requiring
Mantz to tell him to remove them several times.
When defendant removed his hands from his pockets after the
last direction, Mantz was able to a see what he believed to be a
black metal object in defendant's right front pocket. The officer
observed a bulge and the top of the object protruding from above
the pocket.
After Mantz observed the object, he advised defendant that
he was going to "pat him down to make sure [defendant did not]
have any weapons on his person." Mantz "initially went right for
[defendant's] pocket . . . where [he had seen] the object" and
patted down the outside of the pocket using an open flat hand.
4 A-2373-15T1
Upon feeling the object, and based on his training, the officer
immediately recognized the item as "brass knuckles" and removed
them from the pocket. Mantz acknowledged, however, that he had
never previously encountered "someone with metal knuckles." Upon
discovery of the metal knuckles, the officer placed defendant
under arrest, charging him with possession of a prohibited weapon
and public nuisance, an ordinance violation.
Defendant presented his version of what transpired on the day
of his arrest.1 According to defendant, he was walking from one
motel to the other to retrieve an over-the-counter medication from
his sister to give to his child's mother. Defendant testified
that he was not walking in the middle of the street, but merely
crossed from one side to another. He stated that he did not see
any cars on the road and was merely "walking to [his] destination."
He also confirmed he was not intoxicated.
Defendant described the jacket he was wearing at the time
differently from Mantz's description. According to defendant, it
was a large snowboarding jacket with two zippers and five pockets
1
Prior to defendant testifying, the Public Defender's
investigator testified to photographs of the area that he took a
year after defendant's arrest. In response to the prosecutor's
objection, the court ruled that the photographs were inadmissible
as not having any relevance. Ultimately, the judge gave no weight
to the investigator's testimony.
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located in different places – "[t]hree on the bottom, one on the
top and one inside."
Defendant stated that when Mantz stopped him, he answered the
officer's questions about where he was coming from and going to.
Defendant confirmed that he stuttered when he spoke due to his
"high anxiety and several mental disabilities."
When asked for identification, defendant took out a stack of
identifying documents from his jacket's top pocket and handed the
officer a state identification card. At that point, the officer
noticed that defendant also had a jail identification card and
asked to see that one as well. Defendant complied and while the
officer examined the card, defendant placed his hands in his
pockets because it was cold. He confirmed that the officer had
to tell him twice to remove them and after the second time, he
never placed them inside again.
Defendant explained that the officer asked him if he had any
weapons and informed defendant he was going to pat him down.
Defendant stated that he told the officer he did not consent to
the search, but the officer proceeded despite that objection,
telling defendant "it [was] too late for that."
After considering the evidence adduced at the hearing, the
motion judge denied defendant's suppression motion, placing her
reasons on the record on May 1, 2015. The judge observed that
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whether the officer's warrantless search of defendant was legal,
"turn[ed] on whether the stop . . . was a valid field inquiry that
then escalated into [a] lawful . . . investigatory detention
supported by a reasonable and articulable suspicion and a lawful
Terry[2] frisk."
The judge found the officer's testimony to be "entirely
credible" and "consistent" and accepted his version of the events
that led to defendant's arrest. She found defendant's testimony
to be not "at all credible," explaining in detail the reasons for
her conclusion.
The motion judge determined that Mantz had a legitimate
concern that defendant may have been intoxicated while walking in
the middle of the roadway. The judge noted that Mantz's request
for identification was part of a legitimate field inquiry. She
found that he had to ask defendant three times to remove his hands
from his pockets and, upon asking a third time, Mantz observed a
black metal object protruding from the top of his pocket, at which
point he patted defendant down for his own safety and, "without
manipulating the item," he realized defendant was carrying metal
knuckles.
2
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889(1968).
7 A-2373-15T1
The judge rejected defendant's contention that by patting him
down with an open hand, it would have been impossible for the
officer to know there were metal knuckles in his pocket. According
to the judge, she examined the knuckles "through the exhibit
envelope" and found the officer's testimony about what he discerned
from the pat down to "be entirely credible." The judge concluded
the officer "had reasonable suspicion based on [d]efendant's
continued failure to follow directives to take his hands out of
his pockets [and] that the officer['s] . . . observation of a
black metal object justifies the pat down search."
Based on the credible testimony and other evidence, the judge
concluded that there "was a valid field inquiry, which was
permissible without any suspicion at all." She found that
defendant's continued detention beyond obtaining his
identification was justified, relying upon the officer's
observations of what was an ordinance violation, the metal object,
and defendant's "demeanor of [stuttering] and failing to . . .
follow the directives to take his hands out of his pockets."
Accordingly, she concluded that the officer "lawfully frisked"
defendant for weapons because he had a reasonable suspicion that
that "[d]efendant may have been armed and dangerous." The judge
also found that the same facts supported the officer's warrantless
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arrest of defendant relying primarily on the officer's observation
of the black metal object protruding from defendant's pocket.
In addition to filing the suppression motion, defendant filed
a motion to dismiss the indictment that charged him with tampering.
That charge arose from an incident that occurred when defendant,
who had previously been convicted of burglary, was reporting to
probation on September 24, 2014. Before walking through a metal
detector, defendant was told to empty his pockets. In response,
he stated that that he had nothing in them. When defendant walked
through the metal detector, he set off the alarm. A "wanding" of
defendant had the same result, at which time defendant removed
from his pocket a small piece of paper wrapped in foil that he
threw on the ground. A sheriff's detective directed him to pick
it up, and after complying defendant swallowed the wrapped paper.
At the ensuing hearing before the grand jury, the detective
testified that based on his training and experience the item's
appearance indicated it contained "some sort of controlled
dangerous substance [(CDS)]." Based on the detective's testimony,
the grand jury issued its indictment.
The same motion judge considered defendant's motion to
dismiss the indictment. At the hearing, defense counsel argued
that there was no evidence that the small wrapped paper contained
any CDS and that defendant complied with the detective's only
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instruction, which was to pick up what he threw down. Counsel
argued those facts were insufficient to establish defendant
committed an act of tampering. The prosecutor disagreed, arguing
that once the metal detector alarm went off, an investigation
commenced and that defendant's swallowing of the item evinced an
"inten[tion] to destroy the evidence."
The motion judge concluded there was sufficient evidence to
support the charge and denied defendant's motion. In her oral
decision, the judge concluded that defendant was familiar with the
process of going through the metal detectors and knew that if the
metal detector alarm went off "there is going to be an
investigation, that he is going to be wanded and probed further."
Turning to the elements of the offense, the judge observed that
passing through the detector was not an "official proceeding" but
was "certainly . . . an investigation pending or about to be
instituted."
Defendant pled guilty to the two offenses, and the judge
sentenced him in accordance with his plea agreement. This appeal
followed.
On appeal, defendant argues:
POINT I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DENIED DEFENDANT'S SUPPRESSION MOTION BECAUSE
THE POLICE SUBJECTED DEFENDANT TO A
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WARRANTLESS SEARCH AND SEIZURE WITHOUT
CONSTITUTIONAL JUSTIFICATION.
A. Officer Mantz Did Not Have A
Constitutional Basis To Stop and
Question Mr. Cure.
1. Officer Mantz's Initial Stop
of the Defendant Went Beyond the
Scope of a Field Inquiry.
2. Officer Mantz Conducted An
Investigatory Stop Without A
Constitutional Basis.
B. Officer Mantz Did Not Have A
Constitutional Basis To Conduct A
[Terry] Search Of The Defendant.
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DENIED DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT.
We turn first to defendant's challenge to the denial of his
motion to suppress. We review a motion judge's factual findings
in a suppression hearing with great deference. State v. Gonzales,
227 N.J. 77, 101 (2016). In our review of a "grant or denial of
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); see also State v.
Rockford, 213 N.J. 424, 440 (2013). We defer "to those findings
of the trial judge which are substantially influenced by his
11 A-2373-15T1
opportunity to hear and see the witnesses and to have the 'feel'
of the case, which a reviewing court cannot enjoy." State v.
Elders, 192 N.J. 223, 244 (2007) (quoting State v. Johnson, 42
N.J. 146, 161 (1964)). We owe no deference, however, to the trial
court's legal conclusions or interpretation of the legal
consequences that flow from established facts. Our review in that
regard is de novo. State v. Watts, 223 N.J. 503, 516 (2015);
State v. Vargas, 213 N.J. 301, 327 (2013).
Applying this standard of review, we conclude that
defendant's arguments relating to the denial of his suppression
motion are without merit. We affirm substantially for the reasons
expressed by the motion judge. We add the following comments.
The constitutional requirements for a field inquiry and an
investigatory stop are different. "A field inquiry is essentially
a voluntary encounter between the police and a member of the public
in which the police ask questions and do not compel an individual
to answer." State v. Rosario, ____ N.J. ____,____ (2017) (slip
op. at 17). A field inquiry is the least "intrusive[] . . .
encounter[] with police." Ibid.; see also State v. Pineiro, 181
N.J. 13, 20 (2004). Indeed, "[t]he individual does not even have
to listen to the officer's questions and may simply proceed on
[his or] her own way." Id. at 18. "The test of a field inquiry
is 'whether [a] defendant, under all of the attendant
12 A-2373-15T1
circumstances, reasonably believed he [or she] could walk away
without answering any of [the officer's] questions." Ibid.(alteration in original) (quoting State v. Maryland, 167 N.J. 471,
483 (2001)). So long as the officers "questions were put in a
conversational manner, if he [or she] did not make demands or
issue orders, and if his [or her] questions were not overbearing
or harassing in nature," id. at 21 (quoting State v. Davis, 104
N.J. 490, 497 n.6 (1986)), the interaction "could be treated as
[a] field inquiry." Ibid.Unlike a field inquiry, an investigatory stop, also referred
to as a Terry stop, is characterized by a detention in which the
person approached by a police officer "would feel 'that his or her
right to move has been restricted,'" even though the encounter
falls short of a formal arrest. Id. 17-18 (quoting State v.
Rodriguez, 172 N.J. 117, 126 (2002)); see also Terry, supra, 392
U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904. An
investigatory stop "is a temporary seizure that restricts a
person's movement"; accordingly, "it must be based on an officer's
reasonable and particularized suspicion . . . that an individual
has just engaged in, or was about to engage in, criminal activity."
Id. at 18-19 (quoting State v. Stovall, 170 N.J. 346, 356 (2002)).
"During such a stop, if the police officer believes that the
suspect 'may be armed and presently dangerous,' then he may conduct
13 A-2373-15T1
a pat down" for the officer's safety. State v. Williams, 192 N.J.
1, 18 (2007) (quoting Terry, supra, 392 U.S. at 30, 88 S. Ct. at
1884, 20 L. Ed. 2d at 911).
Applying these principles, we agree that defendant's initial
encounter with Mantz amounted to no more than a field inquiry and
escalated to an investigatory stop once the officer observed the
metal object protruding from defendant's pocket and inquired about
whether defendant possessed any weapons. See State v. Contreras,
326 N.J. Super. 528, 540 (App. Div. 1999) (asking the defendants
whether they were in possession of contraband escalated field
inquiry into an investigative detention); State ex rel. J.G., 320
N.J. Super. 21, 25, 31-32 (App. Div. 1999) (asking juvenile if
there was "anything on him that he shouldn't have" converted field
inquiry into a Terry stop). The officer's observation of the
metal object and defendant's behavior and demeanor in an area
known to be a high crime location, provided the objective
observations needed to support the officer's suspicion that
defendant might be in possession of a weapon and warranted the
detention and search of defendant and seizure of the metal
knuckles.
We part company with the judge as to her decision to deny
defendant's motion to dismiss the tampering indictment. We review
a trial court's decision to deny a motion to dismiss an indictment
14 A-2373-15T1
for a clear abuse of discretion. State v. Zembreski, 445 N.J.
Super. 412, 424 (App. Div. 2016). "However, if a trial court's
discretionary decision is based upon a misconception of the law,
a reviewing court owes that decision no particular deference."
Ibid. (quoting State v. Lyons, 417 N.J. Super. 251, 258 (App. Div.
2010)).
In our review of the motion judge's decision, we recognize
that granting a motion to dismiss an indictment should occur only
in limited circumstances. As we have stated:
One of the guiding principles to be followed
by a court when considering a motion to
dismiss an indictment is that "a dismissal of
an indictment is a draconian remedy and should
not be exercised except on the clearest and
plainest ground." State v. Williams, 441 N.J.
Super. 266, 271 (App. Div. 2015) (alteration
omitted) (quoting State v. Peterkin, 226 N.J.
Super. 25, 38 (App. Div.), certif. denied, 114
N.J. 295 (1988)). Therefore, once returned
by a grand jury, an indictment should be
disturbed "only when [it] is manifestly
deficient or palpably defective." State v.
Hogan, 144 N.J. 216, 228-29 (1996).
[Zembreski, supra, 445 N.J. Super. at 424-25.]
With those cautionary instructions in mind, we are still
compelled to find that the motion judge misapplied her discretion
in this case because there was a lack of evidence as to all of the
elements required for tampering. A criminal "tampering" occurs
when a person, "believing that an official proceeding or
15 A-2373-15T1
investigation is pending or about to be instituted, . . . [a]lters,
destroys, conceals or removes any article, object, record,
document or other thing of physical substance with purpose to
impair its verity or availability in such proceeding or
investigation." N.J.S.A. 2C:28-6(1) (emphasis added). "To be
found guilty of this offense, a person must be found to have not
simply hidden criminal contraband or evidence but to have engaged
in conduct that resulted in 'the permanent alteration, loss or
destruction of the evidence.'" State v. Kennedy, 419 N.J. Super.
475, 479 (App. Div.) (quoting State v. Mendez, 175 N.J. 201, 212
(2002)), certif. denied, 208 N.J. 369 (2011). Moreover, the
person's purpose in engaging in such conduct must have been "to
impair [the physical evidence's] verity or availability in [an
official] proceeding or investigation." Ibid. (alteration in
original) (emphasis added) (quoting N.J.S.A. 2C:28-6(1)). Where
the physical evidence is alleged to be CDS, the "statute does not
require the State to prove that the object [destroyed] was [CDS],
only that it was an 'article, object, record, document or other
thing of physical substance[,]' in addition to the other elements
enumerated under [the statute]." Mendez, supra, 175 N.J. at 214.
Unlike the motion judge, we do not include in the definition
of a "proceeding or investigation" the public's contact with law
enforcement at a security checkpoint before entering a public
16 A-2373-15T1
building. That type of encounter is a far cry from a defendant
being pursued by officers who suspect him of having committed a
crime. See id. at 204-07 (affirming a conviction for tampering
with evidence where a defendant discarded and destroyed cocaine
during a police car chase by emptying a clear bag of white powder
while police watched). A police pursuit obviously places a
defendant on notice that he is the subject of an investigation;
whereas, an encounter with a security guard tasked with preventing
weapons from entering a building would not.3 Moreover, the
3
We note that defendant was not charged with hindering his own
apprehension under N.J.S.A. 2C:29-3(b)(1), which does not include
as an element a defendant's belief that an official proceeding or
investigation involving his conduct is or is about to be pursued
by law enforcement. That statute states in pertinent part:
b. A person commits an offense if, with
purpose to hinder his own detention,
apprehension, investigation, prosecution,
conviction or punishment for an offense or
violation . . . he [or she]:
(1) Suppresses, by way of concealment or
destruction, any evidence of the crime . . .
which might aid in his discovery or
apprehension or in the lodging of a charge
against him . . . .
[Ibid.]
To convict a defendant of the offense, the State is required to
prove:
(1) that defendant knew he/she could/might be
charged with [an offense];
17 A-2373-15T1
officer's response following defendant tossing the object to the
floor, which was simply to ask him to pick it up, does not support
the inference that defendant was then aware that he was the subject
of an investigation. Because there was no evidence that defendant
believed that an official proceeding or investigation was about
be instituted against him, the tampering conviction must be
reversed.
Affirmed in part; reversed and remanded in part for entry of
an order vacating defendant's indictment, conviction and sentence
for tampering, N.J.S.A. 2C:28-6(1). We do not retain jurisdiction.
(2) that [] defendant suppress[ed], by
way of concealment or destruction, any
evidence of the crime . . . which might aid
in his[/her] discovery or apprehension or in
the lodging of a charge against him; and
(3) that [] defendant acted with purpose
to hinder his/her own detention, apprehension,
investigation, prosecution, conviction, or
punishment.
[Model Jury Charge (Criminal), "Hindering
One's Own Apprehension or Prosecution"
(2014).]
18 A-2373-15T1