STATE OF NEW JERSEY VS. DARIEN D. ANDERSON(14-12-2063, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0821-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARIEN D. ANDERSON, a/k/a
LEONARD D. DAVIS,
Defendant-Appellant.
_______________________________
Argued October 19, 2017 – Decided November 2, 2017
Before Judges Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
14-12-2063.
Cody T. Mason, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Mr. Mason, of counsel and on the briefs).
Carey J. Huff, Assistant Prosecutor, argued
the cause for respondent (Christopher J.
Gramiccioni, Monmouth County Prosecutor,
attorney; Ms. Huff, of counsel and on the
brief).
PER CURIAM
After the trial court denied his motion to suppress a loaded
handgun seized by the police, defendant pled guilty to second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)
(count one); and fourth-degree possession of a defaced firearm,
N.J.S.A. 2C:39-3(d) (count two). The court sentenced defendant
to five years in prison on count one with a forty-two month period
of parole ineligibility, and a concurrent one-year term on count
two.
On appeal, defendant raises the following contentions:
POINT I
THE MOTION TO SUPPRESS SHOULD HAVE BEEN
GRANTED BECAUSE THE OFFICERS DID NOT HAVE
REASONABLE SUSPICION OF CRIMINAL ACTIVITY TO
JUSTIFY RUNNING AFTER [DEFENDANT].
POINT II
IF THE CONVICTIONS ARE NOT REVERSED, THE
MATTER SHOULD BE REMANDED BECAUSE THE COURT
FAILED TO RECOGNIZE ITS ABILITY TO SEEK A
LOWER SENTENCE AND WRONGLY DENIED [DEFENDANT]
JAIL CREDIT FOR TIME HE SPENT IN COUNTY JAIL.
A. The Interests of Justice Require a Remand
to Allow [Defendant] to Seek a Sentencing
Waiver on the Count One Mandatory
Minimum.
B. The Sentencing Court Erred by Not
Awarding Jail Credit for the Full Time
[Defendant] Spent in Jail Before Trial.
Having considered the record in light of defendant's
contentions and applicable law, we affirm the trial court's denial
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of defendant's motion to suppress, but remand to permit defendant
to file a motion to correct what he claims is an illegal sentence
and to raise the sentencing credits issue before the trial court.
Sergeant Lorenzo Pettway of the Asbury Park Police Department
was the only witness to testify at the suppression hearing. In
the afternoon of May 3, 2014, Sergeant Pettway and two other
officers were patrolling an apartment complex in a high-crime area
known for recent gang activity, narcotics trafficking, and gun
incidents. Because there was a "peace rally march" and a youth
basketball tournament scheduled in the area that day, the apartment
complex managers asked the officers to watch for individuals who
were "cutting through or trespassing on the property[.]"
As the officers were driving through the complex in an
unmarked police vehicle, Sergeant Pettway saw a man, later
identified as defendant, walking past one of the apartment
buildings. The sergeant's attention was drawn to defendant because
despite the warm weather, defendant was wearing a hooded sweatshirt
with the hood "pulled down tight over his head." On top of that,
defendant wore "a puffy jacket, it was a vest type jacket that he
had zipped up[.]"
Sergeant Pettway got out of the car and started walking toward
defendant. He asked defendant if he "could speak to him for a
second." Defendant looked back at the sergeant, "grabbed the
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front of his waist, and started running." Defendant kept his
hands "near the front of his crotch area" as he ran, and Sergeant
Pettway testified that defendant's actions "[m]ade [him] think
[defendant] either had a gun or had some kind of drugs or something
illegal, he had something illegal the way he reacted."
Sergeant Pettway ran after defendant, but lost sight of him
for a few moments after defendant ran around the side of a
building. When the sergeant saw him again, defendant was still
running, but he was no longer "holding the front of his waist" and
his hands were free.
By that time, Sergeant Pettway had alerted the two other
officers of the pursuit and they joined the chase. Defendant fell
down near a playground area and Sergeant Pettway was able to
apprehend him. Defendant stated that he ran away because he had
outstanding warrants.
Because he suspected that defendant had discarded what he had
been holding in the waist area of his pants during the chase,
Sergeant Pettway "retraced our steps" in an attempt to locate any
contraband. On top of some bushes near the entrance to one of the
buildings defendant ran by, Sergeant Pettway found a black revolver
with an orange bandana partially on top of it. The handgun "was
cocked and loaded with six rounds of ammunition."
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After hearing oral argument, the trial judge issued a thorough
oral opinion denying defendant's motion to suppress the handgun.
The judge found that Sergeant Pettway conducted a permissible
field inquiry when he approached defendant and asked to speak to
him.
The judge also found that defendant's action in grabbing the
front of the waist of his pants as he began to run away raised a
reasonable suspicion that defendant was carrying contraband. This
suspicion, the judge determined, was further supported by the fact
that after running around the side of a building and out of the
sergeant's sight, defendant was next seen running with his hands
completely free. Under the totality of these circumstances, the
judge found that Sergeant Pettway had a reasonable and articulable
suspicion of criminal activity that justified an investigatory
stop and the subsequent seizure of the handgun. This appeal
followed.
In Point I, defendant argues that the judge erred in denying
his suppression motion. We disagree.
Our review of a trial judge's decision on a motion to suppress
is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We accord
deference to the trial judge's factual findings, "so long as
sufficient credible evidence in the record supports those
findings[,]" State v. Gonzales, 227 N.J. 77, 101 (2016), or where
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those findings "are substantially influenced by [the trial
judge's] opportunity to hear and see the witnesses and to have the
'feel' of the case, which a reviewing court cannot enjoy." State
v. Johnson, 42 N.J. 146, 161 (1964). See also State v. S.S., 229
N.J. 360, 379 (2017) (holding "that a standard of deference to a
trial court's factfindings . . . best advances the interests of
justice in a judicial system that assigns different roles to trial
courts and appellate courts"). However, we owe no deference to
the trial judge's legal conclusions or interpretations of the
legal consequences flowing from established facts and our review
in that regard is de novo. State v. Watts, 223 N.J. 503, 516
(2015).
It is clear that when Sergeant Pettway chased after defendant
and ordered him to stop, the trooper instituted an "investigatory
stop." See State v. Tucker, 136 N.J. 158, 166 (1994) (holding
that an investigatory stop occurs when police officers chase a
suspect and, under the totality of the circumstances, "the police
conduct would have communicated to a reasonable person that the
person was not free to decline the officers' requests or otherwise
terminate the encounter") (quoting Florida v. Bostick, 501 U.S.
429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)).
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An investigatory stop, sometimes referred to as a Terry1 stop, "is
valid 'if it is based on specific and articulable facts which,
taken together with rational inferences from those facts, give
rise to a reasonable suspicion of criminal activity.'" State v.
Williams (Williams II), 410 N.J. Super. 549, 555 (App. Div. 2009)
(quoting State v. Williams (Williams I), 192 N.J. 1, 9 (2007)),
certif. denied, 201 N.J. 440 (2010). "In making this
determination, a court must consider '[t]he totality of
circumstances.'" Ibid. (alteration in original) (quoting Williams
I, supra, 192 N.J. at 9). The suspicion necessary to conduct a
lawful Terry stop "need not rise to the 'probable cause necessary
to justify an arrest.'" State v. Pineiro, 181 N.J. 13, 20 (2004)
(quoting State v. Nishina, 175 N.J. 502, 511 (2003)).
When evaluating whether a police officer had a reasonable
suspicion that criminal activity had taken place or was about to
take place, a court must "ascribe sufficient weight to the
officer's knowledge and experience and to the rational inferences
that could be drawn from the facts objectively and reasonably
viewed in light of the officer's expertise." State v. Arthur, 149
N.J. 1, 10-11 (1997). "[S]imply because a defendant's actions
might have some speculative innocent explanation does not mean
1
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).
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that they cannot support articulable suspicions if a reasonable
person would find the actions are consistent with guilt." Id. at
11.
Our courts have held that "flight alone does not create
reasonable suspicion for a stop[.]" Williams II, supra, 410 N.J.
Super. at 555 (alteration in original) (quoting State v.
Dangerfield, 171 N.J. 446, 457 (2002)). "However, flight 'in
combination with other circumstances . . . may support [the]
reasonable and articulable suspicion' required to justify a stop."
Ibid. (alterations in original) (quoting Pineiro, supra, 181 N.J.
at 26).
Applying these standards, we discern no basis for disturbing
the trial judge's determination that the investigatory stop and
the seizure of the handgun were valid under the totality of the
circumstances presented in this case. The police were patrolling
the high-crime area because of recent complaints about trespassers
engaging in illegal activities in the apartment complex. Although
it was a warm day, defendant was wearing a sweatshirt with the
hood pulled up tightly around his head, and an additional jacket.
When defendant began to run, he immediately grabbed the waist area
of his pants which, in Sergeant Pettway's experience, is a place
where contraband such as guns or narcotics is carried. After
defendant ran around the building, he was no longer holding his
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waist, which led the sergeant to conclude that defendant must have
discarded what he had been carrying. Under these circumstances,
the judge correctly denied defendant's motion to suppress.
In Point II, defendant raises two arguments that we cannot
address on the current record. First, defendant contends that the
trial judge failed to consider whether he was entitled to a "Graves
Act waiver" under N.J.S.A. 2C:43-6.2, which allows the assignment
judge to reduce the mandatory parole ineligibility term with the
consent of the prosecutor. However, defendant did not request
such a waiver before sentencing.
We generally "decline to consider questions or issues not
properly presented to the trial court . . . unless the questions
so raised on appeal go to the jurisdiction of the trial court or
concern matters of great public interest." Robinson, supra, 200
N.J. at 20 (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,
234 (1973)). Neither situation exists here and, therefore, we
decline to consider defendant's contention on this point.
Nevertheless, because motions to correct an allegedly illegal
sentence may be made at any time under Rule 3:21-10(b)(5), we
remand to the trial court to permit defendant to file such a motion
for the trial court's consideration.
Finally, defendant contends that he was entitled to jail time
or gap-time credits on his sentence based upon the time he served
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in county jail in connection with a municipal conviction. Both
parties agree, as do we, that the trial court erred by denying
credits for this time solely because defendant served this sentence
in county jail. See State v. Walters, 445 N.J. Super. 596, 602-
03 (App. Div. 2016) (noting that gap-time credits can be applied
when a defendant services a municipal court sentence in county
jail), certif. denied, 228 N.J. 495 (2017); Buncie v. Dep't of
Corr., 382 N.J. Super. 214, 217 (App. Div. 2005) (stating that
jail time credits are awarded for "time an individual spends in a
county jail prior to trial and sentencing"), certif. denied, 186
N.J. 606 (2006).
However, the parties disagree over the exact nature and timing
of the municipal sentence that forms the basis for defendant's
claim for credits. Because the "factual antecedents" surrounding
this issue were "never . . . subjected to the rigors of an adversary
hearing" before the trial court, we remand this matter to the
trial court for consideration in the first instance. Robinson,
supra, 200 N.J. at 18.
In sum, we affirm defendant's conviction, and remand to the
trial court for consideration of a motion by defendant to correct
an allegedly illegal sentence, and his assertion that he is
entitled to additional sentencing credits. In remanding, we
express no view on the merits of defendant's contentions.
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Affirmed in part, and remanded for proceedings consistent
with this opinion. We do not retain jurisdiction.
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