STATE OF NEW JERSEY VS. RONALD T. DANIELS, JR. (14-01-0037, 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NOT FOR PUBLICATION WITHOUT THE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-5223-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RONALD T. DANIELS, JR.,
Defendant-Appellant.
_____________________________
Submitted May 14, 2018 – Decided March 4, 2019
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Indictment Nos. 14-01-
0037.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
The trial court denied the motion of defendant Ronald T. Daniels, Jr., to
suppress a handgun that police seized from his person after a pat-down search.
Thereafter, a jury found defendant guilty of second-degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b), and fourth-degree possession of hollow nose
bullets, N.J.S.A. 2C:39-3(f), but acquitted him of first-degree murder, N.J.S.A.
2C:11-3(a)(1), (2), and second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a). The court imposed an eight-year term of
imprisonment with four years of parole ineligibility.
In appealing his conviction, defendant challenges the court's suppression
denial, by arguing:
POINT I
BECAUSE POLICE LACKED THE
INDIVIDUALIZED REASONABLE AND
ARTICULABLE SUSPICION OF CRIMINAL
ACTIVITY NECESSARY TO SEIZE AND SEARCH
TEN PEOPLE, INCLUDING MR. DANIELS,
WITHOUT A WARRANT, THE COURT ERRED BY
DENYING THE MOTION TO SUPPRESS. U.S.
Const., Amends. IV, XIV; N.J. Const., Art. I, ¶ 7.
A. The State Did Not Prove that the Officers'
Warrantless Seizure of Ten People, Including Mr.
Daniels, Was Lawful.
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B. The State Did Not Prove that the Officers'
Warrantless Search of Ten People, Including Mr.
Daniels, Was Lawful.
Defendant also challenges the court's sentence, contending:
POINT II
A RESENTENCING REMAND IS REQUIRED
BECAUSE THE COURT OFFERED NO REASONS
FOR IMPOSING A PAROLE DISQUALIFIER
GREATER THAN THE STATUTORY MINIMUM,
AND ALSO INAPPROPRIATELY ACTED AS A
THIRTEENTH JUROR BY DECIDING MR.
DANIELS HAD BEEN AN "ACCESSORY" TO
CONDUCT FOR WHICH HE WAS ACTUALLY
ACQUITTED.
Having reviewed these arguments in light of the record and applicable
principles of law, we affirm defendant's conviction but remand for resentencing.
I.
Applying our deferential standard of review, we uphold the trial court's
factual findings after the suppression hearing, as they were supported by
sufficient credible evidence. See State v. Elders, 192 N.J. 224, 243-44 (2007).
The trial judge credited the testimony of the two witnesses at the suppression
hearing: Asbury Park police officer Lorenzo Pettway and Neptune Township
police officer Nicholas Taylor.
A-5223-14T4
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Pettway testified that a confidential informant (CI) called him to report
observing a man with a gun. The CI said the man was black, had dreadlocks,
and wore a white t-shirt. He was on the east side of the apartment complex at
1514 Monroe Avenue, near the border between Neptune Township and Asbury
Park, with a group of other people. Pettway considered the CI reliable, as the
CI had provided helpful and accurate information for three or four years. Also,
the CI was not facing charges that would suggest self-interest.
As the address was on the Neptune Township side of the border, Pettway
conveyed this information to Taylor, with whom he had worked in the past on
joint investigations. Taylor described the area as a high-crime area where the
Bloods street gang was active. Taylor assembled four Neptune Township
officers to plan their response to the scene, but one was dispatched to a shooting
a mile away. So, Taylor and the three remaining officers approached the address
on foot at around 10:25 p.m., roughly an hour after the CI called Pettway. Taylor
and one fellow officer approached the east side of the apartment complex, while
the other two entered the complex from the south and north, to prevent flight.
As Taylor came upon a group of ten men and a woman, he heard one say,
"Oh shit, it's the cops." Taylor recognized four men from prior dealings as
members of the Bloods. Included was Shamere Reid, who started to walk away.
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Reid wore a white collared shirt, had dreadlocks, and was black. Taylor
observed him reach into his pants, toss a handgun over a fence, and then heard
it clank on the pavement.
At that point, Taylor placed Reid under arrest and handcuffed him. Taylor
said Reid was agitated and hostile. The officer accompanying Taylor
commanded the rest of the group to sit. Once the other two officers arrived,
Taylor ran around the fence to retrieve Reid's gun. Upon return, Taylor noticed
defendant, with whom he was unfamiliar, in the front of the seated group.
Defendant also had dreadlocks, was black, and wore a white tank top. Taylor
said defendant appeared nervous and uncomfortable. While seated, he moved
side to side while he scanned the area, suggesting to Taylor that he was looking
for an avenue of escape.
Suspecting defendant possessed a firearm, Taylor asked him to stand up.
Taylor patted down his waistband and felt something hard. Grasping it, he
recognized the butt of a handgun, which he then seized. A further search of
defendant and of the other members of the group did not uncover additional
contraband.
The judge held that, under the totality of the circumstances, Taylor had a
reasonable and articulable suspicion to stop defendant and pat him down for
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weapons. The judge noted that it was late at night in a high-crime area; gang
members were present; a shooting had recently occurred nearby; the officers
were significantly outnumbered; and the CI was known to be reliable.
Corroborating the CI's information, police discovered a gun possessed by a man
(Reid), who roughly matched the CI's description, in the place and among a
group the CI described. However, defendant also matched the CI's description,
and he appeared nervous and of a mind to flee. Citing Terry v. Ohio, 392 U.S.
1 (1968) and State v. Roach, 172 N.J. 19 (2002), among other authorities, the
judge held that Taylor had a reasonable and articulable suspicion that defendant
was armed and dangerous, and was therefore justified in conducting a protective
pat-down. Upon doing so, Taylor had probable cause to search and seize the
handgun.
Applying a de novo standard of review, see State v. Jessup, 441 N.J.
Super. 386, 389-90 (App. Div. 2015), we discern no error in the trial court's
application of its factual findings to the governing principles of law. Two
intrusions occurred here: the order to defendant to stop, and the pat-down of his
waist. We must analyze the events separately. "[W]hether there is good cause
for an officer to make a protective search incident to an investigatory stop is a
question separate from whether it was permissible to stop the suspect in the first
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place." State v. Thomas, 110 N.J. 673, 678-79 (1988); accord State v. Lund,
119 N.J. 35, 45 (1990).
First, we conclude the police had sufficient grounds, after arresting Reid
for gun possession, to direct the rest of the group to stop and sit so the police
could investigate further. Police are entitled, without a warrant, to conduct a
brief investigatory stop if they find "specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that
intrusion." Terry, 392 U.S. at 21. Something more than a "hunch," but less than
probable cause, is required. State v. Barrow, 408 N.J. Super. 509, 517 (App.
Div. 2009) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). "There
must be 'some objective manifestation that the suspect was or is involved in
criminal activity.'" State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Thomas, 110
N.J. at 678). The court considers the reasonableness of a stop based on the
totality of the circumstances. State v. Stovall, 170 N.J. 346, 361 (2002).
The trial judge cogently recounted the circumstances that warranted
stopping the group of men and woman to investigate. The police already found
that one person in the group – Reid – possessed a gun and attempted to discard
it. That corroborated the CI's information, and justified further investigation.
See State v. Birkenmeier, 185 N.J. 552, 562 (2006) (stating that a "confidential
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informant's tip, once corroborated by the observations made by the police,
provided sufficient reasonable suspicion to detain and conduct an investigatory
stop of [the] defendant"); State v. Esteves, 93 N.J. 498, 506 (1983) (noting that
discovery of one weapon in vehicle would have created probable cause to search
swiftly for other, concealed weapons).
Three men, in addition to Reid, were known gang members. See State v.
Privott, 203 N.J. 16, 29 (2010) (finding defendant's association with gang
members supported reasonable suspicion of carrying concealed weapon). It was
late at night in a high-crime area. See State v. Pineiro, 181 N.J. 13, 26 (2004)
(considering presence in high-crime area as factor contributing to reasonable
suspicion). Without focusing yet on defendant, the police had sufficient grounds
to prevent the entire group from leaving, to investigate whether anyone else in
the group with Reid possessed a weapon or was engaged in criminal activity.
Defendant contends that once Reid was arrested, the CI's tip was
"exhausted," leaving no basis to investigate further. To the contrary,
corroboration of the CI's information, including that a man among a group of
people possessed a gun, warranted further investigation of the group. As Taylor
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explained, based on his experience, the other group members may also have
possessed guns.1
Second, Taylor had sufficient grounds to frisk defendant based on
defendant's conduct, demeanor, and appearance, which matched the CI's
description.2 During an investigatory stop, a police officer may conduct a
protective search, that is, a pat-down or frisk, "where [the officer] has reason to
believe that he [or she] is dealing with an armed and dangerous individual."
Terry, 392 U.S. at 27. The test is objective; we consider whether "a reasonably
prudent man [or woman] in the circumstances would be warranted in the belief
that his [or her] safety or that of others was in danger." Ibid. The officer need
not be "absolutely certain" a suspect is armed before conducting a brief
1
Defendant also contends the court misplaced reliance on the shooting that
occurred shortly before the stop, because Taylor testified that he had no
objective basis at the time to link that event with his investigation at the Monroe
Avenue apartments. However, police later determined that the gun seized from
defendant was used in the shooting. In any event, the trial court had ample basis
to find reasonable suspicion without relying on the shooting incident.
2
Although defendant contends that the police had no basis to "search . . . ten
people, including [defendant]," defendant has standing only to challenge the
search of his own person. See State v. Alston, 88 N.J. 211, 220 (1981) (stating
that generally, "a motion to suppress evidence obtained in violation of the Fourth
Amendment may be successfully brought only by those persons whose rights
were violated by the search itself"). Besides, the contraband relevant to his
conviction was found only in his possession.
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protective search. Ibid. As with a stop, in considering the reasonableness of a
protective search, "due weight must be given . . . to the specific reasonable
inferences which [the officer] is entitled to draw from the facts in light of his [or
her] experience." Ibid. "[I]t is important for courts to take a realistic approach
to 'reviewing police behavior in the context of the ever-increasing violence in
society.'" State v. Bard, 445 N.J. Super. 145, 157 (App. Div. 2016) (quoting
State v. Valentine, 134 N.J. 536, 545 (1994)).
In addition to the circumstances that justified stopping defendant and the
rest of the group, defendant's own behavior aroused safety concerns. First and
foremost, defendant matched the CI's description of the gun possessor. While,
technically, defendant wore a tank top instead of a t-shirt, his clothing fit the
description as well as Reid's collared shirt did. Thus, Taylor could not know
whether the CI observed Reid or defendant. See State v. Gavazzi, 332 N.J.
Super. 348, 361 (App. Div. 2000) (stating that police were justified in stopping
man in white shirt when victim identified assailant as wearing a white sweater).
Defendant also appeared nervous. See Elders, 192 N.J. at 250 (stating that
nervousness may contribute to finding reasonable suspicion). He also was
scanning the scene, apparently looking for a way to flee. Cf. Piniero, 181 N.J.
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at 26 (stating that flight "in combination with other circumstances . . . may
support reasonable and articulable suspicion").
Under the totality of these circumstances, Taylor had sufficient grounds
to conduct a pat-down of defendant's waist. Upon discovery of what appeared
to be the butt of a gun, he had probable cause to seize it.
In sum, the trial court did not err in denying defendant's motion to
suppress.
II.
Defendant contends the trial court did not adequately state its reasons for
imposing a four-year period of parole ineligibility. We are constrained to agree.
We may not second-guess a court's exercise of sentencing discretion that
conforms with the Code's sentencing guidelines. State v. Roth, 95 N.J. 334, 365
(1984). Under the sentencing law in effect when defendant committed his
offense, the court was required to impose a period of parole ineligibility between
one third and one half the eight-year base term, or three years if greater. See
N.J.S.A. 2C:43-6(c) (2012). Therefore, the court had the discretion to impose a
parole-ineligibility period between three and four years.
However, regardless of the statutory source of a minimum term, the court
must set forth the reasons for its decision, based on the aggravating and
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mitigating factors and in light of the base term imposed. See State v.
Jefimowicz, 119 N.J. 152, 163 (1990) (stating "sentencing courts must be
cognizant of their flexibility in determining the duration of parole ineligibility
even under the Graves Act" and must "weigh aggravating and mitigating factors
. . . to fix the period of parole ineligibility"); see also State v. Kirk, 145 N.J. 159,
179 (1996) (stating that a sentencing court must "state on the record the reasons
supporting . . . any term of parole ineligibility not mandated by statute"). We
therefore remand for reconsideration of the parole ineligibility term.
Defendant also contends the court, in fashioning defendant's sentence,
inappropriately considered defendant an accessory to the murder of which he
was acquitted. Defendant mischaracterizes the judge's statement. Before
proceeding to address aggravating factor five, "substantial likelihood that the
defendant is involved in organized criminal activity," N.J.S.A. 2C:44-1(a)(5),
the judge stated the jury's verdict was understandable because the State's two
key witnesses "were less than stellar" and one conceded his willingness to lie.
Nonetheless, the judge found that defendant was involved with the Bloods and
ultimately came to possess the gun that was used in a gang-related homicide:
But these facts do seem to remain. This
defendant, a member of the Bloods street gang, was at
a gathering of other Bloods members. At some point a
decision was made for he and at least two other people
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to go to a location where the rival street gang of Crips
hung out. There's no other explanation for why they
would go there.
Upon arrival, shots were fired. An individual
was killed. I don't think there's any question that this
defendant was present at the time . . . within 15 minutes
. . . after shots being fired this defendant was found
with a handgun that was ballistically matched up to be
the handgun that the bullets came out of that killed the
individual. And when originally confronted by the
police, he didn't voluntarily turn over the gun. The gun
was observed and taken from him within 15 minutes.
So I don't think there's any question that his
involvement here was at least as an accessory at some
point. And that there's a substantial likelihood that he
was involved at the time that this incident occurred in
organized criminal activity as a Bloods member. So I
find aggravating five exists.
Although perhaps inartful in his choice of words, the judge did not find
that defendant committed a substantive offense as an "accessory" to the murder,
but that his secreting the murder weapon fifteen minutes after the homicide
demonstrated his involvement in organized criminal activity. Thus, the judge's
finding of aggravating factor five was consistent with the jury's verdict.
Affirmed as to the conviction and the base term of the sentence.
Remanded for reconsideration of the period of parole ineligibility.
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