Opinion
DOCKET NO. A-3815-10T1
05-16-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JALLEEM HOLLOWAY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent State of New Jersey (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 09-05-1458 and 10-02-0435.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent State of New Jersey (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jalleem Holloway appeals from his December 16, 2010 judgment of conviction (JOC) and sentence for two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5b. For the reasons that follow, we affirm the conviction but remand for a correction of the JOC to reflect the appropriate jail credits.
The record shows that on May 14, 2009, a grand jury indicted defendant for third-degree receiving stolen property, N.J.S.A. 2C:20-7; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and fourth-degree prohibited weapons and devices, N.J.S.A. 2C:39-3(j). On February 18, 2010, another grand jury indicted defendant for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a).
After the first indictment, defendant filed a motion to suppress the evidence, arguing that the handgun was recovered as the result of an unlawful search. At the suppression hearing, the sole witness was Detective James Cosgrove, a seventeen-year veteran of the Newark Police Department. According to Cosgrove, he and another police officer were on undercover patrol in an unmarked car in plainclothes near a local bar around 1:45 a.m. He observed an unidentified man urinating on a wall, called out to him to stop and shined his flashlight on him. The man gave no response. Cosgrove and his partner then watched from a distance of twenty feet as defendant, fully illuminated by the flashlight, approached the man, who pulled a gun from his waistband and handed it to defendant, who put the gun in his pocket. Based upon his experience as a police officer, Cosgrove recognized the weapon as a semiautomatic handgun. Cosgrove and another officer exited their vehicle and told defendant to stop. Defendant ignored the order and got into the passenger seat of a nearby car. The officers approached the car with their guns drawn and ordered the driver to stop. Then an officer reached into defendant's pocket, removed the handgun to disarm him and placed him under arrest.
The motion judge denied defendant's motion on February 2, 2010, finding that Cosgrove was a credible witness. She concluded that the police were justified in stopping defendant since there was "actual knowledge of criminal activity relating to a gun and, because the police knew defendant was armed, the urgency of the situation provided exigent circumstances justifying immediate seizure of the weapon."
On October 18, 2010, defendant pled guilty to two counts of second-degree unlawful possession of a weapon in satisfaction of both indictments. However, by this time, defendant had a pending indictment for murder and related weapons charges that was not encompassed by this plea. The trial judge, on December 15, 2010, sentenced defendant to five years imprisonment with three years parole ineligibility on each count to run concurrently. He awarded defendant 226 days jail credit on the first indictment and 407 days on the second indictment. This appeal followed.
On appeal, defendant raises the following contentions for our consideration:
POINT I: THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE GUN EVIDENCE BECAUSE THE OFFICER'S TESTIMONY, OFFERED TO ESTABLISH CAUSE FOR THE SEARCH, LACKED CREDIBILITY. (N.J. CONST. ART. I § 7 AND U.S. CONST. AMEND. IV).
POINT II: THE TRIAL COURT FAILED TO AWARD DEFENDANT ALL OF THE JAIL CREDITS TO WHICH HE WAS ENTITLED PURSUANT TO R. 3:21-8 AS INTERPRETED IN STATE V. HERNANDEZ, 208 N.J. 24 (2011).
First, we consider defendant's claims that the police testimony alleging probable cause for the search lacked credibility and, thus, that the search was not constitutionally warranted.
Our review of a trial judge's decision on a suppression motion is deferential. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we "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) (citation and internal quotation marks omitted). On the other hand, as appellate review of the trial court's legal conclusion is plenary, we need not defer to the trial court's decisions when a question of law is at stake. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004). The State bears the burden of establishing that a search "falls within one of the few well-delineated exceptions to the warrant requirement." Ibid.
A search incident to a lawful arrest based upon probable cause is a long-recognized exception to the general warrant requirement. See State v. Sims, 75 N.J. 337, 352 (1978). Such an exception is necessary to prevent a suspect "from accessing a weapon or destroying evidence." State v. Pena-Flores, 198 N.J. 6, 19 (2009).
The Court has described the probable cause standard as follows:
The probable cause standard is a well-grounded suspicion that a crime has been or is being committed. Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information
[are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. The substance of all definitions of probable cause is a reasonable ground for belief of guilt.
[State v. O'Neal, 190 N.J. 601, 612 (2007) (citation omitted).]
In evaluating the existence of probable cause, the totality of the circumstances must be considered. Ibid. Here, when Cosgrove viewed defendant receive a semiautomatic handgun, he had reasonable grounds to believe that criminal activity was occurring and was authorized to arrest defendant. See State v. Henry, 133 N.J. 104, 110-11 (holding that an officer has probable cause to arrest where defendant commits an offense in the officer's presence), cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993); See also State v. Josey, 290 N.J. Super. 17, 30-31 (App. Div.) (noting that when police saw the defendant selling drugs they "had ample probable cause to arrest him"), certif. denied, 146 N.J. 497 (1996).
Defendant's principal contention is that Cosgrove's testimony was inherently unbelievable because people do not engage in criminal activity when unknown persons are shining a flashlight on them. Hence, defendant maintains, we must reject Cosgrove's testimony and find that the police searched defendant without any justification. We decline to substitute our evaluation of the factual record for that of the trial judge who had the opportunity to see and hear the witness and evaluate his credibility. The judge offered sound reasons for her findings. We have been provided no meritorious basis to second-guess her reasoning. We conclude that under the totality of the circumstances, the police officers had probable cause to arrest defendant, to search him and to seize the weapon incident to the valid arrest. Pena-Flores, supra, 190 N.J. at 612.
Next, defendant requests that, pursuant to Rule 3:21-8, he receive additional jail credits for presentence incarceration for both indictments that resulted in the plea. According to defendant's calculations, he is entitled to 637 days of jail credit on the first indictment and 411 days on the second indictment. The State's calculation yielded one additional day of jail credits for each indictment.
Recently, our Supreme Court provided that "defendants are entitled to precisely what [Rule 3:21-8] provides: credits against all sentences 'for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence' on each case." State v. Hernandez, 208 N.J. 24, 28 (2011). The Court gave only prospective application on its ruling in Hernandez "except for those matters on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Id. at 51.
The State agrees that, according to Hernandez, defendant is entitled to additional jail credits on both indictments. However, the State maintains that because at sentencing defendant only requested additional jail credits for the first indictment, he may only receive the appropriate jail credit for that indictment. We reject this limitation as too narrow a reading of Hernandez, whereby the court required that its entire opinion applied if a defendant still on direct appeal had raised the issue of jail credits at sentencing. As the Court noted, "R[ule] 3:21-8 expresses the public policy of the State and should be liberally construed." Id. at 36 (quoting State v. Beatty, 128 N.J. Super. 488, 491 (App. Div. 1974)).
We are satisfied that under Hernandez defendant is entitled to the appropriate days of jail credits for both convictions and hereby adopt the State's jail credit calculation of 638 days for the first indictment and 412 days for the second. We remand to the trial court for the limited purpose of entering an amended JOC reflecting the appropriate jail credits.
Affirmed as to the conviction and remanded to correct the JOC. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION