STATE OF NEW JERSEY v. DION RICHARDSON (18-11-3732, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4608-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DION RICHARDSON,
Defendant-Appellant.
_______________________
Submitted January 25, 2022 – Decided August 17, 2022
Before Judges Currier and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 18-11-3732.
Joseph E. Krakora, Public Defender, attorney for
appellant (Christopher W. Hsieh, Designated Counsel,
on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Hannah F. Kurt,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
After a motor vehicle stop, police officers conducted a warrantless search.
The driver, defendant Dion Richardson, was charged with second-degree
possession of a handgun without a permit to carry, N.J.S.A. 2C:39-5(b). He
filed a motion to suppress, which was denied by the trial court after a hearing.
After denial of the suppression motion, defendant pled guilty. Pursuant to the
plea agreement, the court sentenced him to a forty-two-month term of
incarceration with a forty-two-month parole ineligibility period.
On appeal, defendant challenges the court's denial of the suppression
motion on three grounds: the police had no basis to conduct the vehicle stop;
the police had no basis to conduct a protective sweep for weapons in the vehicle;
and the sentencing court imposed an excessive sentence. We do not reach the
last two points on appeal because we conclude, after a thorough review of the
record and the applicable law, that there was no permissible basis to stop
defendant's vehicle. We therefore reverse the order denying the motion to
suppress and vacate defendant's guilty plea and his sentence.
I.
Officer Xavier Pimentel and Detectives Daniel Mendez, Ricardo Maciera,
and Eli Irisari were patrolling the area of South Orange Avenue and North Munn
Avenue in Newark, New Jersey to gather information on a recent shooting. The
A-4608-19
2
officers drove marked and unmarked vehicles wearing civilian attire with their
badges displayed. Officer Pimentel and Detective Mendez were in one car, and
Detectives Maciera and Irisari occupied the second.
At the suppression hearing, Officer Pimentel testified on direct. He
testified that he had been employed by the city for four years at the time of his
testimony, which took place approximately seven months after defendant's
arrest. At the time of the vehicle stop he was assigned to the Criminal
Intelligence Unit. On the date of the incident, he and Detective Mendez were
assigned to the area of South Orange Ave and North Munn Ave to gather
information regarding a recent neighborhood shooting. They were in an
unmarked police car, and Detective Mendez was driving. He testified that
Detectives Maciera and Irisari were also assigned to the area, riding in a separate
marked police car.
Officer Pimentel testified that he saw a car, a maroon Buick, commit a
"motor vehicle violation," which he described as an "improper lane change," at
South Orange Ave and North Munn. He stated that he observed the car, carrying
four occupants, commit a traffic violation as it was traveling east on South
Orange Ave approaching the intersection of North Munn. Officer Pimentel
testified next that he and his partner made a U-turn to conduct a motor vehicle
A-4608-19
3
stop. As he and Detective Mendez followed the vehicle, he stated that he
observed passengers in the Buick "passing items back and forth." He testified
that he "relayed that information to Detective Mendez." They continued to
follow the Buick "looking for a safe spot" to conduct the stop.
The Buick turned south on Whitney and was stopped by Detectives
Maciera and Irisari. Pimentel and Mendez continued east on South Orange,
turning south at the next block, and pulling up next to the stopped Buick.
On cross-examination, Officer Pimentel acknowledged that his
observations and the vehicle stop took place after midnight. He testified that, at
the intersection, there was one vehicle stopped ahead of the maroon Buick and
that it was initially behind the lead car in the eastbound left lane of South
Orange. Pimentel saw no other cars when he and his partner were turning onto
South Orange westbound and saw the Buick change lanes. According to
Pimentel, the Buick changed lanes from left to right without signaling, but it
stopped at the light.
Detective Mendez testified next, and he indicated that he did not see the
maroon Buick commit a traffic violation, but that Pimentel "relayed" the
information to him. Detective Maciera testified that he did not see the
A-4608-19
4
infraction, but that Pimentel and Mendez radioed the information to him.
Detective Irisari did not testify.
During the motion court's oral decision, it relied on three cases in
determining the stop of the Buick was justified. State v. Golotta, 178 N.J. 205(2003), State v. Heisler, 422 N.J. Super 399 (App. Div. 2011), and State v. Moss,
277 N.J. Super. 545 (App. Div. 1994). The court stated:
On a motion to suppress . . . the State need only prove
that the police lawfully stopped the car[,] not that it
could convict the driver of a motor vehicle offense. The
issue is whether the officer had a reasonable articulable
suspicion of a violation before the stop. [T]he officers
found that there was a Title 39 violation. There were at
least two vehicles in the vicinity of the defendant’s
vehicle, that is the police vehicle and this other vehicle
that was described. I find that the State has met its
threshold of the officers -- the establishing officers had
a reasonable articulable suspicion of a violation in this
case. So therefore, I find that the stop was a -- was a
stop.
The motion court then analyzed the warrantless search, eventually concluding
that the State presented sufficient facts to justify a protective sweep of the
vehicle, resulting in the permissible seizure of the weapon.
Defendant pled guilty and was sentenced. On appeal, he makes three
arguments.
A-4608-19
5
POINT I
THE COURT ERRED IN CONCLUDING THAT
POLICE LAWFULLY STOPPED DEFENDANT'S
VEHICLE FOR FAILURE TO SIGNAL, AS THERE
WAS NO EVIDENCE TO SUPPORT THE
REQUISITE FINDING THAT OTHER TRAFFIC
MAY HAVE BEEN AFFECTED BY DEFENDANT'S
LANE CHANGE.
POINT II
THE COURT ERRED IN FINDING THAT
PROTECTIVE SWEEP WAS JUSTIFIED, AS THERE
WERE NO ARTICULABLE FACTS TO
DEMONSTRATE THE PRESENCE OF A WEAPON
IN THE VEHICLE, AND THE FOUR ARMED
POLICE OFFICERS WERE IN FULL CONTROL OF
THE SCENE AT ALL TIMES, THEREBY
MINIMIZING THE RISK THAT SOMEONE COULD
GAIN ACCESS TO A WEAPON.
POINT III
THE COURT ERRONEOUSLY FAILED TO APPLY
MITIGATING FACTOR ELEVEN, THEREBY
RESULTING IN AN EXCESSIVE SENTENCE.
II.
"Generally, on appellate review, a trial court's factual findings in support
of granting or denying a motion to suppress must be upheld when 'those findings
are supported by sufficient credible evidence in the record.'" State v. A.M., 237
N.J. 384, 395 (2019) (first quoting State v. S.S., 229 N.J. 360, 374 (2017); then
A-4608-19
6
quoting State v. Gamble, 218 N.J. 412, 424 (2014)). An appellate court should
not disturb a trial court's findings unless "they are so clearly mistaken 'that the
interests of justice demand intervention and correction.'" State v. Elders, 192
N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
"Those findings warrant particular deference when they 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.
Rockford, 213 N.J. 424, 440 (2013) (alteration in original) (internal quotation
marks and citations omitted). "An appellate court owes no deference, however,
to 'conclusions of law made by lower courts in suppression decisions,'" and
reviews such decisions de novo. A.M., 237 N.J. at 396 (quoting State v. Boone,
232 N.J. 417, 426 (2017)).
The "[r]easonable suspicion necessary to justify an investigatory stop is a
lower standard than the probable cause necessary to sustain an arrest[.]" State
v. Legette, 227 N.J. 460, 473 (2017) (first alteration in original) (quoting State
v. Stovall, 170 N.J. 346, 356 (2002)); see also Golotta, 178 N.J. at 213. The
standard requires "'some minimal level of objective justification for making the
stop.'" State v. Amelio, 197 N.J. 207, 211-12 (2008) (quoting State v. Nishina,
175 N.J. 502, 511 (2003)). The test is "highly fact sensitive and, therefore, not
A-4608-19
7
readily, or even usefully, reduced to a neat set of legal rules." Nishina, 175
N.J.at 511.
The relevant portion of N.J.S.A. 39:4-126 reads, "[n]o person shall so turn
any vehicle without giving an appropriate signal in the manner hereinafter
provided in the event any other traffic may be affected by such movement." Our
Supreme Court has examined this statutory language under a very similar fact
pattern and has concluded that "[t]he statute does not require a signal for every
lane change." State v. Williamson, 138 N.J. 302, 304 (1994). And "[b]ecause
the statute does not contain such a requirement, the officer ordering a stop must
have some articulable basis for concluding that the lane change might have an
effect on traffic." Ibid.Pursuant to Williamson, the officer's observation that defendant changed
lanes without using a signal is not enough to justify a traffic stop unless the
failure to signal could have affected other traffic. See id. at 304 (agreeing with
the State's position that a stop is justified if officers have a reasonable suspicion
that the failure to signal affected other traffic).
The Buick was one of three cars that Pimentel observed, including his
own. He and Detective Mendez were traveling in the opposite direction from
defendant's Buick when he spotted it. Based on the suppression hearing record,
A-4608-19
8
we are satisfied that Pimentel's vehicle was unaffected by the lane change. The
only other vehicle Pimentel mentioned was the unidentified lead vehicle, idling
at the traffic light, ahead of the Buick. The lead vehicle was stationary, and
when the Buick pulled up next to it after its lane change, it too, came to a stop,
waiting for the traffic light to change from red to green. As a stationary vehicle
in front of the Buick, the lead car objectively could not have been affected by
the Buick's lane change without a signal. The record shows no other cars to
factor into the equation.
The court relied on two Appellate Division cases to support its finding
that the stop of the Buick was justified, Heisler and Moss. In those cases, we
considered N.J.S.A. 39:4-126 in the context of an investigatory vehicle stop.
"[N.J.S.A. 39:4-126] . . . defines the motor-vehicle violation that justifies the
stop in terms of whether the failure to signal may have affected any other
traffic." Williamson, 138 N.J. at 305. Their facts are easily distinguishable
from the record before us. In each case the police officer who made the
observations and conducted the stop was driving behind the offending motorist.
Our Supreme Court has found that the observing police officer's vehicle counts
as part of the "other traffic" which "may be affected" by the offending lane
change, and we concluded that the stops were justified. Id. at 304. Detective
A-4608-19
9
Mendez and Officer Pimentel were not driving behind defendant's vehicle, but
actually driving in the opposite direction when Pimentel made his observations.
The motion court also cited a Supreme Court case, Golotta, in support of
its finding. We find that case inapposite. The facts involved a police officer
acting on an anonymous 911 caller's tip that a motorist was operating their
vehicle in an erratic and unsafe manner on a state highway. Golotta, 178 N.J. at
209-11. The driver was stopped and charged with N.J.S.A. 39:4-50, not N.J.S.A.
39:4-126. Ibid.Because we find no proper justification for the investigatory stop, we do
not reach the remaining points on appeal. We reverse the court's order denying
the motion to suppress. We vacate defendant's guilty plea and the sentence. We
remand for further proceedings consistent with this opinion.
Reversed, vacated, and remanded.
A-4608-19
10