NOT FOR PUBLICATION WITHOUT THE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-3251-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CONOR R. MAHONEY,
Defendant-Appellant.
____________________________
Submitted April 25, 2017 – Decided May 17, 2017
Before Judges Fasciale and Gilson.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Accusation No. 15-01-0097.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michael Confusione, Designated
Counsel, on the brief).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Paula C. Jordao,
Assistant Prosecutor, on the brief).
PER CURIAM
Following the denial of his motion to suppress physical
evidence, defendant Conor R. Mahoney pled guilty to third-degree
possession of heroin, N.J.S.A. 2C:35-10(a)(1). He was sentenced
in accordance with his plea agreement to one year of probation.
Defendant now appeals the denial of his motion to suppress and his
sentence. We affirm.
I.
The relevant facts were developed at an evidentiary hearing,
during which one witness, Officer Jorge Reyes, testified.
According to Officer Reyes, on October 26, 2014, at approximately
4:50 p.m., he observed a vehicle with a rear center brake light
that was not operating. Officer Reyes effectuated a motor vehicle
stop. There were two occupants in the vehicle. Defendant was the
driver and there was a male passenger. As the officer approached
the vehicle, he observed that the driver and passenger "appeared
to be picking their hips up as if they were concealing something."
Officer Reyes then observed pieces of wax paper inside the vehicle,
which he knew based on his training and experience were used to
package heroin. The officer also requested defendant to provide
his credentials and, during that process, he observed defendant
open the glove compartment in which he could see a folding knife.
The officer called for backup and asked defendant to step out
of the car. While outside the vehicle, Officer Reyes observed
that defendant had fresh needle-track marks on his arm. The
officer waited approximately three minutes for backup officers to
arrive and, when they did, he conducted a pat-down search of
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defendant. During that search, he felt a bulge in defendant's
left pocket.1 Officer Reyes then arrested defendant and retrieved
approximately forty-five folds of heroin from defendant's pocket.
After hearing the testimony and reviewing a video from the
police vehicle showing the stop and Officer Reyes' interaction
with defendant, the motion judge found that the stop of the vehicle
was lawful and the pat-down search was incident to defendant's
arrest. In that regard, the motion judge reasoned that the officer
had probable cause to arrest defendant before he conducted the
pat-down search. The court embodied its rulings in an order,
together with a written statement of reasons, issued on January
7, 2016.
As noted earlier, following the denial of his motion to
suppress, defendant pled guilty to possession of heroin. He was
sentenced to one year of probation as called for in his plea
agreement.
II.
On appeal, defendant makes two arguments:
1
Officer Reyes asked defendant what was in his pocket and
defendant responded that it was "dope." The motion judge
suppressed that and other statements made by defendant because he
had not been given his Miranda warnings. Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 A-3251-15T2
Point I – The trial court erred in denying
defendant's motion to suppress physical
evidence seized by police.
Point II – Defendant's sentence is improper
and excessive.
In reviewing a motion to suppress, we defer to the trial
court's factual and credibility findings, "so long as those
findings are supported by sufficient credible evidence in the
record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State
v. Elders, 192 N.J. 224, 243 (2007)). Deference is afforded
"because the 'findings of the trial judge . . . are substantially
influenced by his [or her] opportunity to hear and see the
witnesses and to have the "feel" of the case, which a reviewing
court cannot enjoy.'" State v. Reece, 222 N.J. 154, 166 (2015)
(first alteration in original) (quoting State v. Locurto, 157 N.J.
463, 471 (1999)). "An appellate court should disregard those
findings only when a trial court's findings of fact are clearly
mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015) (citing
State v. Johnson, 42 N.J. 146, 162 (1964)). The legal conclusions
of a trial court are reviewed de novo. Id. at 263 (citing State
v. Gandhi, 201 N.J. 161, 176 (2010)).
The Fourth Amendment of the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution protect
individuals from unreasonable searches and seizures. U.S. Const.
4 A-3251-15T2
amend. IV; N.J. Const. art. I, ¶ 7. "There is a constitutional
preference for" law enforcement officers to obtain a warrant from
a neutral magistrate before conducting a search or seizure. State
v. Pineiro, 181 N.J. 13, 19 (2004); State v. Ravotto, 169 N.J.
227, 236 (2001). Among the exceptions to a search or seizure
conducted without a warrant is a search incident to a lawful
arrest. State v. Minitee, 210 N.J. 307, 318 (2012).
Here, the motion judge found that Officer Reyes had probable
cause to arrest defendant based on the officer's observation of
the wax folds in plain view. The motion judge also relied on the
officer's testimony that he observed defendant trying to hide
evidence and that defendant had fresh needle-track marks on his
arm. Defendant argues that there was insufficient probable cause
to arrest him for possession of drug paraphernalia. Moreover,
defendant points out that he was never charged with possession of
drug paraphernalia.
A lawful arrest is predicated on probable cause or "a well-
grounded suspicion that a crime has been or is being committed."
State v. Marshall, 199 N.J. 602, 610 (2009) (quoting State v.
O'Neal, 190 N.J. 601, 612 (2007)). The facts and circumstances
must show "reasonable ground for belief of guilt." Ibid. (quoting
O'Neal, supra, 190 N.J. at 612). "Although several factors
considered in isolation may not be enough," when analyzed under
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the totality of the circumstances, their cumulative effect can
support probable cause. State v. Moore, 181 N.J. 40, 46 (2004).
Officer Reyes was the only witness who testified at the
evidentiary hearing. Although the motion judge did not expressly
find the officer's testimony credible, he clearly relied on that
testimony. See Locurto, supra, 157 N.J. at 473 ("[T]he Court
found it unnecessary for a trial court to enunciate credibility
findings when the record as a whole made the findings clear[.]"
(citing State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied,
384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966))). Based
on the testimony of Officer Reyes, there was probable cause to
arrest defendant for possession of drug paraphernalia and illegal
drug possession. Accordingly, the officer had the lawful right
to conduct a pat-down search incident to the arrest. That pat-
down search revealed the heroin, which was then lawfully seized.
A. The Sentence
Defendant contends that this matter should be remanded for
resentencing because the sentencing judge did not sufficiently
explain the facts supporting the aggravating factors. We disagree.
We accord substantial deference to sentencing determinations
and will "not substitute [our] judgment for that of the sentencing
court." State v. Fuentes, 217 N.J. 57, 70 (2014). We will affirm
a criminal sentence unless:
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(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or
(3) "the application of the guidelines to the
facts of [the] case makes the sentence clearly
unreasonable so as to shock the judicial
conscience."
[Ibid. (alteration in original) (quoting State
v. Roth, 95 N.J. 334, 364-65 (1984)).]
Here, the sentencing judge found aggravating factors three
and nine, N.J.S.A. 2C:44-1(a)(3) and (9), and mitigating factors
one, two, six, and ten, N.J.S.A. 2C:44-1(b)(1), (2), (6) and (10).
The judge articulated the facts supporting each of these findings
of aggravating and mitigating factors. We discern no abuse of
discretion or error in the sentence.
Affirmed.
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