State v. Carroway

Full title: STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT J. CARROWAY…

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Jul 3, 2013

DOCKET NO. A-1966-11T3 (App. Div. Jul. 3, 2013)

Opinion

DOCKET NO. A-1966-11T3

07-03-2013

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT J. CARROWAY, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Public Defender, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Graves and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 2234-08-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Public Defender, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief). PER CURIAM

Defendant Robert J. Carroway pled guilty to second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b), after his suppression motion was denied. The court sentenced defendant in accordance with the plea agreement to a four-year prison term with three years of parole ineligibility. Defendant appeals from the January 10, 2011 order denying his suppression motion. For the reasons that follow, we affirm.

Because the verbatim record of the suppression hearing on January 7, 2011, was lost, destroyed, or is otherwise unavailable, the evidence adduced at the suppression hearing was reconstructed pursuant to Rule 2:5-3(f), with certifications by Officers Edward O'Donnell and Edward Slimm of the Lindenwold Police Department. Several photographs were also presented to the trial court, which are not part of the record on appeal. Accordingly, we derive the following facts from the officers' certifications.

On May 26, 2010, at approximately 7:22 p.m., O'Donnell was driving a marked patrol car while leaving the Arborwood Condominium Complex (the Complex). The only way to enter or exit the Complex is by turning either right or left onto Gibbsboro Road. While waiting to leave the Complex, O'Donnell observed a blue minivan make a left turn into the Complex from Gibbsboro Road without using a turn signal. There were no cars behind the minivan, and a car traveling in the opposite direction had "stopped approximately seventy-five feet down the road at a traffic light." There were approximately fifteen to twenty people "in and around the Complex." The minivan was traveling at approximately ten to fifteen miles per hour when it passed within ten feet of the patrol car. In his certification, O'Donnell stated he stopped the minivan based on defendant's failure to signal when he made a left turn from Gibbsboro Road into the Complex. O'Donnell also explained that he believed defendant was driving with a suspended license:

I have known Mr. Carroway since he was fourteen years old. I have arrested him on five separate prior occasions and I was present when Mr. Carroway was the victim of a shooting. I have known Mr. Carroway to carry weapons and drugs. I was aware that he had recently been released from jail. I believed that Mr. Carroway's driver's license was suspended. I do not recall when, how (i.e., orally or in-writing), where, and by whom I was told that Mr. Carroway had recently been released from the jail and that his driver's license was suspended. We have regular briefings about when certain individuals have been or will be released from custody.

According to O'Donnell, he activated his overhead lights and pursued defendant's vehicle a short distance before it stopped. Defendant then fled on foot, with the minivan still running.

After O'Donnell stopped his vehicle he made sure no one was inside the minivan before he pursued defendant. At that point, Slimm arrived and attempted to open the driver's side door of the minivan, but it was locked. He then reached into the front passenger side window, which was open, unlocked the door and entered the minivan to turn off the ignition and remove the keys. While inside the minivan, Slimm observed a handgun in plain view between the center console and the driver's seat. O'Donnell eventually caught up with defendant and arrested him. Defendant was charged with resisting arrest, unlawful possession of a handgun, and certain persons not to have weapons. He was also issued a traffic summons for careless driving.

Defendant did not testify or call any witnesses at the suppression hearing. The court denied defendant's motion, reasoning as follows:

Officer O'Donnell observed defendant making a left turn without signaling in violation of N.J.S.A. 39:4-126.
. . . .
The court is satisfied that based on the testimony that was elicited from the officer that there were other vehicles traveling in that complex.
[T]here was testimony that there was a vehicle in front of Officer O'Donnell's vehicle. I note there were several pedestrians in this complex. Certainly, a signal should be used to . . . put a pedestrian on foot on notice that a left turn is going to be made.
. . . .
The court finds . . . defendant's failure to signal when making a left turn certainly gave rise to the officer's reasonable suspicion that the defendant violated [N.J.S.A. 39:4-126,] justifying the initial stop of the defendant.
. . . .
The court also notes that the officer's testimony is that he was able to identify the defendant as the driver of this vehicle based only on a distance away of ten feet apart. He had known the defendant from prior interactions or arrests.
The testimony of the officer was that his initial stop was based on the defendant's failure to signal while turning and that he believed that the defendant was driving with a suspended license.
In assessing the credibility of the officer, this Court finds that the officer's testimony is credible.

The court further found that the handgun "observed by Patrolman Slimm was observed in plain view." In addition, the court determined that Slimm "entered the vehicle to turn off the vehicle," pursuant to his community caretaking function. Defendant does not challenge the court's determination that the handgun was observed in plain view when Slimm entered the minivan.

On appeal, defendant presents the following arguments:

POINT I
THE TRIAL JUDGE ERRED IN DENYING CARROWAY'S MOTION TO SUPPRESS BECAUSE O'DONNELL ARTICULATED NO VALID REASON FOR THE MOTOR VEHICLE STOP THAT LED TO THE DISCOVERY OF THE GUN.

A. CARROWAY'S FAILURE TO SIGNAL WHEN TURNING WAS NOT A VIOLATION OF N.J.S.A. 39:4-126 BECAUSE NO

TRAFFIC WAS AFFECTED BY HIS MOVEMENT.
B. O'DONNELL'S UNSUBSTANTIATED BELIEF THAT CARROWAY'S LICENSE WAS SUSPENDED IS AN INSUFFICIENT BASIS FOR A STOP.

We conclude from our review of the record and the applicable law that these arguments are without merit, Rule 2:11-3(e)(2), and require only the following comments.

"A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed." State v. Carty, 170 N.J. 632, 639-40 (2002) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979)). The determination of reasonable and articulable suspicion is fact-sensitive, and a court must carefully review "the totality of the circumstances." State v. Mann, 203 N.J. 328, 338 (2010). Pursuant to N.J.S.A. 39:4-126:

No person shall . . . 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.
A signal of intention to turn . . . shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.

"Traffic" is defined as "pedestrians, ridden or herded animals, vehicles, street cars, and other conveyances either singly, or together, while using any highway for purposes of travel." N.J.S.A. 39:1-1.

Defendant argues that the trial court erred in denying his motion, "because no traffic was affected by his movement." However, as the Court has noted:

[The State] need not establish that the move actually affected traffic. That is not the language of the statute. We further agree that the State need not prove that a motor-vehicle violation occurred as a matter of law. Constitutional precedent requires only reasonableness on the part of the police, not legal perfection. Therefore, the State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor-vehicle offense. . . . [The officer] needed only a reasonable and articulable suspicion that defendant's failure to signal may have affected other traffic.
State v. Williamson, 138 N.J. 302, 304 (1994) (internal quotation marks omitted).

"[A]n appellate court reviewing a motion to suppress 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. Elders, 192 N.J. 224, 243 (2007) (quotation marks and citation omitted). We "should give deference to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). However, we owe no deference to the trial court's rulings on questions of law. State v. Gandhi, 201 N.J. 161, 176 (2010). Finally, the State bears the burden of proving the validity of a warrantless search by a preponderance of the evidence. State v. Edmonds, 211 N.J. 117, 128 (2012).

In the present matter, the motion judge's findings are firmly supported by sufficient credible evidence in the record, and her conclusions predicated on those findings are legally sound. We therefore affirm the order denying defendant's suppression motion substantially for the reasons stated by Judge Gwendolyn Blue on January 10, 2011.

Affirmed.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION