STATE OF NEW JERSEY VS. DARIEN D. ANDERSON(14-12-2063, 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NOT FOR PUBLICATION WITHOUT THE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-0821-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARIEN D. ANDERSON, a/k/a
LEONARD D. DAVIS,

Defendant-Appellant.
_______________________________

Argued October 19, 2017 – Decided November 2, 2017

Before Judges Simonelli and Haas.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
14-12-2063.

Cody T. Mason, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Mr. Mason, of counsel and on the briefs).

Carey J. Huff, Assistant Prosecutor, argued
the cause for respondent (Christopher J.
Gramiccioni, Monmouth County Prosecutor,
attorney; Ms. Huff, of counsel and on the
brief).

PER CURIAM
 After the trial court denied his motion to suppress a loaded

handgun seized by the police, defendant pled guilty to second-

degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)

(count one); and fourth-degree possession of a defaced firearm,

N.J.S.A. 2C:39-3(d) (count two). The court sentenced defendant

to five years in prison on count one with a forty-two month period

of parole ineligibility, and a concurrent one-year term on count

two.

On appeal, defendant raises the following contentions:

POINT I

THE MOTION TO SUPPRESS SHOULD HAVE BEEN
GRANTED BECAUSE THE OFFICERS DID NOT HAVE
REASONABLE SUSPICION OF CRIMINAL ACTIVITY TO
JUSTIFY RUNNING AFTER [DEFENDANT].

POINT II

IF THE CONVICTIONS ARE NOT REVERSED, THE
MATTER SHOULD BE REMANDED BECAUSE THE COURT
FAILED TO RECOGNIZE ITS ABILITY TO SEEK A
LOWER SENTENCE AND WRONGLY DENIED [DEFENDANT]
JAIL CREDIT FOR TIME HE SPENT IN COUNTY JAIL.

A. The Interests of Justice Require a Remand
to Allow [Defendant] to Seek a Sentencing
Waiver on the Count One Mandatory
Minimum.

B. The Sentencing Court Erred by Not
Awarding Jail Credit for the Full Time
[Defendant] Spent in Jail Before Trial.

Having considered the record in light of defendant's

contentions and applicable law, we affirm the trial court's denial

2 A-0821-15T1
of defendant's motion to suppress, but remand to permit defendant

to file a motion to correct what he claims is an illegal sentence

and to raise the sentencing credits issue before the trial court.

Sergeant Lorenzo Pettway of the Asbury Park Police Department

was the only witness to testify at the suppression hearing. In

the afternoon of May 3, 2014, Sergeant Pettway and two other

officers were patrolling an apartment complex in a high-crime area

known for recent gang activity, narcotics trafficking, and gun

incidents. Because there was a "peace rally march" and a youth

basketball tournament scheduled in the area that day, the apartment

complex managers asked the officers to watch for individuals who

were "cutting through or trespassing on the property[.]"

As the officers were driving through the complex in an

unmarked police vehicle, Sergeant Pettway saw a man, later

identified as defendant, walking past one of the apartment

buildings. The sergeant's attention was drawn to defendant because

despite the warm weather, defendant was wearing a hooded sweatshirt

with the hood "pulled down tight over his head." On top of that,

defendant wore "a puffy jacket, it was a vest type jacket that he

had zipped up[.]"

Sergeant Pettway got out of the car and started walking toward

defendant. He asked defendant if he "could speak to him for a

second." Defendant looked back at the sergeant, "grabbed the

3 A-0821-15T1
front of his waist, and started running." Defendant kept his

hands "near the front of his crotch area" as he ran, and Sergeant

Pettway testified that defendant's actions "[m]ade [him] think

[defendant] either had a gun or had some kind of drugs or something

illegal, he had something illegal the way he reacted."

Sergeant Pettway ran after defendant, but lost sight of him

for a few moments after defendant ran around the side of a

building. When the sergeant saw him again, defendant was still

running, but he was no longer "holding the front of his waist" and

his hands were free.

By that time, Sergeant Pettway had alerted the two other

officers of the pursuit and they joined the chase. Defendant fell

down near a playground area and Sergeant Pettway was able to

apprehend him. Defendant stated that he ran away because he had

outstanding warrants.

Because he suspected that defendant had discarded what he had

been holding in the waist area of his pants during the chase,

Sergeant Pettway "retraced our steps" in an attempt to locate any

contraband. On top of some bushes near the entrance to one of the

buildings defendant ran by, Sergeant Pettway found a black revolver

with an orange bandana partially on top of it. The handgun "was

cocked and loaded with six rounds of ammunition."

4 A-0821-15T1
 After hearing oral argument, the trial judge issued a thorough

oral opinion denying defendant's motion to suppress the handgun.

The judge found that Sergeant Pettway conducted a permissible

field inquiry when he approached defendant and asked to speak to

him.

The judge also found that defendant's action in grabbing the

front of the waist of his pants as he began to run away raised a

reasonable suspicion that defendant was carrying contraband. This

suspicion, the judge determined, was further supported by the fact

that after running around the side of a building and out of the

sergeant's sight, defendant was next seen running with his hands

completely free. Under the totality of these circumstances, the

judge found that Sergeant Pettway had a reasonable and articulable

suspicion of criminal activity that justified an investigatory

stop and the subsequent seizure of the handgun. This appeal

followed.

In Point I, defendant argues that the judge erred in denying

his suppression motion. We disagree.

Our review of a trial judge's decision on a motion to suppress

is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We accord

deference to the trial judge's factual findings, "so long as

sufficient credible evidence in the record supports those

findings[,]" State v. Gonzales, 227 N.J. 77, 101 (2016), or where

5 A-0821-15T1
those findings "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. Johnson, 42 N.J. 146, 161 (1964). See also State v. S.S., 229

N.J. 360, 379 (2017) (holding "that a standard of deference to a

trial court's factfindings . . . best advances the interests of

justice in a judicial system that assigns different roles to trial

courts and appellate courts"). However, we owe no deference to

the trial judge's legal conclusions or interpretations of the

legal consequences flowing from established facts and our review

in that regard is de novo. State v. Watts, 223 N.J. 503, 516

(2015).

It is clear that when Sergeant Pettway chased after defendant

and ordered him to stop, the trooper instituted an "investigatory

stop." See State v. Tucker, 136 N.J. 158, 166 (1994) (holding

that an investigatory stop occurs when police officers chase a

suspect and, under the totality of the circumstances, "the police

conduct would have communicated to a reasonable person that the

person was not free to decline the officers' requests or otherwise

terminate the encounter") (quoting Florida v. Bostick, 501 U.S.

429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)).

6 A-0821-15T1
An investigatory stop, sometimes referred to as a Terry1 stop, "is

valid 'if it is based on specific and articulable facts which,

taken together with rational inferences from those facts, give

rise to a reasonable suspicion of criminal activity.'" State v.

Williams (Williams II), 410 N.J. Super. 549, 555 (App. Div. 2009)

(quoting State v. Williams (Williams I), 192 N.J. 1, 9 (2007)),

certif. denied, 201 N.J. 440 (2010). "In making this

determination, a court must consider '[t]he totality of

circumstances.'" Ibid. (alteration in original) (quoting Williams

I, supra, 192 N.J. at 9). The suspicion necessary to conduct a

lawful Terry stop "need not rise to the 'probable cause necessary

to justify an arrest.'" State v. Pineiro, 181 N.J. 13, 20 (2004)

(quoting State v. Nishina, 175 N.J. 502, 511 (2003)).

When evaluating whether a police officer had a reasonable

suspicion that criminal activity had taken place or was about to

take place, a court must "ascribe sufficient weight to the

officer's knowledge and experience and to the rational inferences

that could be drawn from the facts objectively and reasonably

viewed in light of the officer's expertise." State v. Arthur, 149

N.J. 1, 10-11 (1997). "[S]imply because a defendant's actions

might have some speculative innocent explanation does not mean

1
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).

7 A-0821-15T1
that they cannot support articulable suspicions if a reasonable

person would find the actions are consistent with guilt." Id. at

11.

Our courts have held that "flight alone does not create

reasonable suspicion for a stop[.]" Williams II, supra, 410 N.J.

Super. at 555 (alteration in original) (quoting State v.

Dangerfield, 171 N.J. 446, 457 (2002)). "However, flight 'in

combination with other circumstances . . . may support [the]

reasonable and articulable suspicion' required to justify a stop."

Ibid. (alterations in original) (quoting Pineiro, supra, 181 N.J.

at 26).

Applying these standards, we discern no basis for disturbing

the trial judge's determination that the investigatory stop and

the seizure of the handgun were valid under the totality of the

circumstances presented in this case. The police were patrolling

the high-crime area because of recent complaints about trespassers

engaging in illegal activities in the apartment complex. Although

it was a warm day, defendant was wearing a sweatshirt with the

hood pulled up tightly around his head, and an additional jacket.

When defendant began to run, he immediately grabbed the waist area

of his pants which, in Sergeant Pettway's experience, is a place

where contraband such as guns or narcotics is carried. After

defendant ran around the building, he was no longer holding his

8 A-0821-15T1
waist, which led the sergeant to conclude that defendant must have

discarded what he had been carrying. Under these circumstances,

the judge correctly denied defendant's motion to suppress.

In Point II, defendant raises two arguments that we cannot

address on the current record. First, defendant contends that the

trial judge failed to consider whether he was entitled to a "Graves

Act waiver" under N.J.S.A. 2C:43-6.2, which allows the assignment

judge to reduce the mandatory parole ineligibility term with the

consent of the prosecutor. However, defendant did not request

such a waiver before sentencing.

We generally "decline to consider questions or issues not

properly presented to the trial court . . . unless the questions

so raised on appeal go to the jurisdiction of the trial court or

concern matters of great public interest." Robinson, supra, 200

N.J. at 20 (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,

234 (1973)). Neither situation exists here and, therefore, we

decline to consider defendant's contention on this point.

Nevertheless, because motions to correct an allegedly illegal

sentence may be made at any time under Rule 3:21-10(b)(5), we

remand to the trial court to permit defendant to file such a motion

for the trial court's consideration.

Finally, defendant contends that he was entitled to jail time

or gap-time credits on his sentence based upon the time he served

9 A-0821-15T1
in county jail in connection with a municipal conviction. Both

parties agree, as do we, that the trial court erred by denying

credits for this time solely because defendant served this sentence

in county jail. See State v. Walters, 445 N.J. Super. 596, 602-

03 (App. Div. 2016) (noting that gap-time credits can be applied

when a defendant services a municipal court sentence in county

jail), certif. denied, 228 N.J. 495 (2017); Buncie v. Dep't of

Corr., 382 N.J. Super. 214, 217 (App. Div. 2005) (stating that

jail time credits are awarded for "time an individual spends in a

county jail prior to trial and sentencing"), certif. denied, 186

N.J. 606 (2006).

However, the parties disagree over the exact nature and timing

of the municipal sentence that forms the basis for defendant's

claim for credits. Because the "factual antecedents" surrounding

this issue were "never . . . subjected to the rigors of an adversary

hearing" before the trial court, we remand this matter to the

trial court for consideration in the first instance. Robinson,

supra, 200 N.J. at 18.

In sum, we affirm defendant's conviction, and remand to the

trial court for consideration of a motion by defendant to correct

an allegedly illegal sentence, and his assertion that he is

entitled to additional sentencing credits. In remanding, we

express no view on the merits of defendant's contentions.

10 A-0821-15T1
 Affirmed in part, and remanded for proceedings consistent

with this opinion. We do not retain jurisdiction.

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