STATE OF NEW JERSEY VS. ALFREDO LOPEZ(12-06-0927, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-5736-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALFREDO LOPEZ,
Defendant-Appellant.
———————————————————————————
Submitted April 25, 2017 – Decided May 15, 2017
Before Judges Fasciale and Gilson.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County,
Indictment No. 12-06-0927.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen W. Kirsch, Assistant
Deputy Public Defender, of counsel and on the
brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Catherine A. Foddai,
Senior Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
Following the denial of his motion to suppress physical
evidence, defendant Alfredo Lopez pled guilty to second-degree
eluding, N.J.S.A. 2C:29-2(b); second-degree possession of heroin
with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and
-5(b)(2); third-degree possession of heroin, N.J.S.A. 2C:35-
10(a)(1); and third-degree hindering, N.J.S.A. 2C:29-3(b)(1). On
the second-degree convictions, defendant was sentenced to seven
years in prison with forty-two months of parole ineligibility. On
the third-degree convictions, he was sentenced to four and five
years in prison. The sentences were run concurrent. Defendant
now appeals the denial of his motion to suppress and his sentences.
We affirm the convictions, but remand for resentencing.
I.
The relevant facts were established at a hearing on the motion
to suppress. On February 27, 2012, defendant was driving in
Paramus just before midnight. Two officers, who were parked in
an unmarked vehicle, observed defendant's car driving at
approximately forty miles an hour in a fifty-mile-an-hour zone.
As defendant's car drove by the officers' vehicle, defendant
slammed on the brakes and moved from the left to the center lane
without the use of a turn signal. One of the officers then
observed that one of the brake lights on defendant's car was not
operating. The officers began to follow defendant and thereafter
effectuated a motor vehicle stop.
Officer Hayo and his partner Officer Cullen approached the
vehicle. When the officers spoke to defendant, they observed that
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he was nervous, the car contained multiple air fresheners and they
could see a large amount of cash in the center console. Based on
those observations, which they believed gave rise to reasonable
suspicion of drug activity, the officers requested consent to
search the car. Defendant initially agreed, but then asked if his
brother-in-law, who owned the car, could be present. The officers
denied that request citing officer safety. Defendant then fled
by driving away and the officers pursued him. While in pursuit,
the officers observed defendant slow down and throw a black object
out of the passenger window. Defendant then drove on and
eventually came to a stop.
Defendant was arrested and he was found to be in possession
of $2490 in cash. Other officers went back and found a black
plastic bag near the area where defendant had thrown the object.
The bag contained 2250 packs of suspected heroin and air
fresheners.
Defendant was indicted for eluding, hindering, possession of
heroin with the intent to distribute, and possession of heroin.
He made a motion to suppress. The only witness at the hearing was
one of the two arresting officers, Officer Hayo. After hearing
the testimony, the trial judge denied defendant's motion. The
judge found that the stop was lawful because of the inoperable
brake light and because defendant changed lanes without signaling.
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The motion judge also found that the request for consent was valid.
The judge went on to find that the patrolman's testimony was
credible when he testified that he observed defendant throw an
object from the car and that defendant had abandoned that property.
II.
On appeal, defendant makes two arguments. First, he argues
that the motion to suppress should have been granted because the
police did not have reasonable articulable suspicion to request
consent to search, and the doctrine of "attenuation" does not
apply. Second, defendant challenges his sentences as inconsistent
with the plea and argues that certain counts should have merged.
He articulates those arguments as follows:
POINT I – DEFENDANT'S MOTION TO SUPPRESS THE
ITEMS SEIZED SHOULD HAVE BEEN GRANTED; THERE
WAS NOT REASONABLE ARTICULABLE SUSPICION FOR
THE REQUEST FOR CONSENT TO SEARCH THE VEHICLE,
AND, WHEN DEFENDANT FLED AND DISCARDED DRUGS
ONLY SECONDS AFTER THE IMPROPER CONSENT TO
SEARCH, WITHOUT ASSAULTING OR INJURING -- OR
EVEN USING FORCE UPON -- OFFICERS, THE
DOCTRINE OF "ATTENUATION" DOES NOT "SAVE" THE
UNCONSTITUTIONAL CONDUCT OF THE POLICE FROM
THE REMEDY OF SUPPRESSION
POINT II – THE SENTENCE IMPOSED ON ONE COUNT
APPEARS TO BE BEYOND THE UPPER LIMIT OF THE
TERMS OF THE PLEA BARGAIN; LIKEWISE, THE PLEA
DEAL MANDATES MERGER OF OFFENSES THAT WAS NOT
ORDERED; MOREOVER, THE AGGREGATE SENTENCE AND
THE INDIVIDUAL TERMS ARE ALSO UNSUPPORTED BY
ANY ANALYSIS OF THE AGGRAVATING AND MITIGATING
FACTORS, AND ARE, THUS, MANIFESTLY EXCESSIVE,
THEREBY REQUIRING A REMAND FOR RESENTENCING
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We are "bound to uphold a trial court's factual findings in
a motion to suppress provided those 'findings are supported by
sufficient credible evidence in the record.'" State v. Watts, 223
N.J. 503, 516 (2015) (quoting State v. Elders, 192 N.J. 224, 243-
44 (2007)). "Deference to those findings is particularly
appropriate when the trial court has the 'opportunity to hear and
see the witnesses and to have the feel of the case, which a
reviewing court cannot enjoy.'" Ibid. (quoting Elders, supra, 192
N.J. at 244). Review of a trial court's legal conclusions,
however, is conducted de novo. Reese v. Weis, 430 N.J. Super.
552, 568 (App. Div. 2013) (citing Dep't of Envtl. Prot. v. Kafil,
395 N.J. Super. 597, 601 (App. Div. 2007)).
To request consent to search during a motor vehicle stop,
police must have a reasonable articulable suspicion that the search
will produce evidence of illegal wrongdoing. State v. Carty, 170
N.J. 632, 647 (2002). "[T]he appearance of nervousness is not
sufficient grounds for the reasonable and articulable suspicion
necessary to extend the scope of a detention beyond the reason for
the original stop." Id. at 648. Nevertheless, "nervousness and
conflicting statements, along with indicia of wrongdoing, can be
cumulative factors in a totality of the circumstances analysis
that leads to a finding of reasonable and articulable suspicion
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of ongoing criminality." Elders, supra, 192 N.J. at 250 (citing
State v. Stovall, 170 N.J. 346, 367 (1990)).
In denying defendant's motion to suppress, the trial judge
found the testimony of Officer Hayo to be credible. The court
found that the stop of defendant's vehicle was lawful because
defendant had an inoperable brake light and changed lanes without
the use of his turn signal. When the officers approached
defendant's vehicle, defendant's hands were shaking and he
appeared "overly nervous." There were "multiple air fresheners
in the motor vehicle" and "hundred dollar bills in the center
console." The totality of circumstances, including the excessive
number of air fresheners, the hundred dollar bills in the center
console, in conjunction with the appearance of nervousness,
constituted reasonable suspicion to request consent to search the
vehicle. The trial court's decision that this request was lawful
was supported by sufficient credible evidence in the record.
Alternatively, assuming the request to search was not lawful,
defendant's flight sufficiently attenuated the seizure of the
evidence from the alleged improper police conduct. New Jersey
courts apply a three-factor test to determine attenuation: "(1)
the temporal proximity between the illegal conduct and the
challenged evidence; (2) the presence of intervening
circumstances; and (3) the flagrancy and purpose of the police
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misconduct." State v. Johnson, 118 N.J. 639, 653 (1990) (citations
omitted) (followed by State v. Shaw, 213 N.J. 398, 416-21 (2012)).
"[T]he determination whether the evidence is the 'fruit' of the
illegal conduct is a factual matter for the court." Ibid.
In considering the first factor, temporal proximity, the time
between the alleged improper request for consent to search and
defendant throwing the bag from his car window was brief. Temporal
proximity, however, "'is the least determinative' of the three
factors." Shaw, supra, 213 N.J. at 416 (quoting State v. Worlock,
117 N.J. 596, 623 (1990)). Its effect on attenuation is often
ambiguous. Ibid. Here, the brief passage of time does not suggest
that the official conduct somehow coerced the abandonment.
Most significantly, there are undisputed intervening
circumstances in this case that support the finding of attenuation.
Defendant fled while the officers were conducting a lawful motor
vehicle stop, giving the officers the right to pursue defendant.
Suspects must obey a police officer's commands during an
investigatory stop and they have no right to resist arrest, elude,
obstruct the police, or escape in response to a stop or detention.
State v. Herrerra, 211 N.J. 308, 334-35 (2012); State v. Crawley,
187 N.J. 440, 468, cert. denied, 549 U.S. 1078, 127 S. Ct. 740,
166 L. Ed. 2d 563 (2006). When defendant fled the scene after
being told his brother-in-law could not be present for the search
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of the vehicle, defendant committed an eluding that justified the
officers' pursuit.
Finally, there is nothing to suggest that the police were
acting improperly. There was nothing flagrant about the police's
conduct. At worst, the officers asked for consent to search
without a proper basis. As we have found, however, the officers
did have a proper basis to request consent. Thus, applying the
three-factor standard, there was credible evidence supporting the
alternative grounds of attenuation.
After fleeing, defendant threw the bag containing the heroin
from his car. It logically follows that defendant had no right
to challenge the admission of the heroin into evidence because he
abandoned the bag when he threw it from the car. See Johnson,
supra, 193 N.J. at 548. Further, this abandonment was sufficiently
attenuated from the alleged police misconduct. See Id. at 548-49
(explaining that property "is not considered abandoned when a
person throws away incriminating articles due to the unlawful
actions of police officers" (quoting State v. Tucker, 136 N.J.
158, 172 (1994))).
In summary, even assuming the officers did not have the
requisite reasonable suspicion to request consent to search the
vehicle, defendant's abandonment of the property, and the
attenuation of this abandonment from the alleged unlawful police
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conduct, leaves defendant with no right to challenge its seizure.
See Ibid. (explaining that abandonment is a "narrow exception to
our automatic standing rule").
Therefore, we affirm the trial court’s denial of defendant’s
motion to suppress.
III.
Next, we consider defendant's sentences. When defendant pled
guilty, the judge informed defendant of the maximum sentences that
would be imposed. Defendant was told that he would be sentenced
to seven years in prison with forty-two months of parole
ineligibility on the conviction for second-degree possession of
heroin with the intent to distribute. Defendant would also be
sentenced to a concurrent seven-year prison term on the conviction
for second-degree eluding. The conviction for hindering would
merge with the eluding conviction and the conviction for possession
of heroin would merge with the conviction for possession of heroin
with the intent to distribute. Those representations were embodied
in a supplemental plea form signed by the prosecutor and defendant
and made part of the plea agreement.
At sentencing, a different judge stated that he would sentence
defendant in accordance with the plea agreement. The judgment of
conviction, however, imposed different sentences. In the judgment
of conviction, defendant was sentenced to seven years in prison
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with forty-two months of parole ineligibility on both the eluding
and the possession with intent to distribute convictions. He was
also sentenced to five years in prison on the hindering conviction
and four years in prison on the possession of heroin conviction.
All of those sentences were run concurrent.
The State concedes that the matter should be remanded for
resentencing. We agree because a defendant who pleads guilty and
relies on a promise has a right to expect that the bargain will
be fulfilled or he be given the opportunity to withdraw his guilty
plea. State v. Subin, 222 N.J. Super. 227, 238 (App. Div.),
certif. denied, 111 N.J. 580 (1988). Here, the sentencing judge
stated that he intended to sentence defendant in accordance with
the plea agreement. Accordingly, this matter will be remanded for
resentencing in accordance with the plea agreement.
Given that the matter will be remanded for resentencing, we
need not address defendant's arguments concerning the analysis of
the aggravating and mitigating factors. At the resentencing, the
court will have the opportunity to make findings and explain the
basis for the aggravating and mitigating factors. See State v.
Fuentes, 217 N.J. 57, 73 (2014) (explaining that "[a]t the time
of sentencing, the court must 'state reasons for imposing such
sentence including . . . the factual basis supporting [its] finding
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of particular aggravating or mitigating factors affecting
sentence" (second alteration in original) (quoting R. 3:21-4(g))).
Defendant's convictions are affirmed and the matter is
remanded for resentencing in accordance with the plea agreement.
We do not retain jurisdiction.
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