NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5704-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAMEION L. EDGERTON, a/k/a
DAMION EDGERTON,
Defendant-Appellant.
________________________________
Submitted April 5, 2017 – Decided May 30, 2017
Before Judges Manahan and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
14-04-0718.
Clifford E. Lazzaro, attorney for appellant.
Christopher S. Porrino, Attorney General,
attorney for respondent (Sarah E. Ross, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
After his suppression motion was denied, defendant pled
guilty, pursuant to a plea agreement, to three counts in a six
count indictment against him, namely, Count Two, second-degree
possession of cocaine with intent to distribute, N.J.S.A. 2C:35-
5b(2), Count Four, second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5b, and Count Five, second-degree possession of a
firearm in the course of committing a drug offense, N.J.S.A. 2C:39-
4.1a.
Defendant was sentenced on Count Two to five-years
imprisonment with a two-year parole disqualifier. On Count Four,
he was sentenced to five-years imprisonment with a three-year
parole disqualifier. On Count Five, he was sentenced to five-
years imprisonment with a three-year parole disqualifier. Counts
Four and Five were ordered to be served concurrent to each other
and consecutive to Count Two, thus resulting in an aggregate
sentence of ten-years imprisonment with a five-year parole
disqualifier. Pursuant to the plea agreement, the remaining counts
of the indictment were dismissed.
The sole issue before us in this appeal is whether the trial
court erred in denying defendant's motion to suppress evidence
seized as a result of a warrantless search. More particularly,
defendant argues:
POINT I: BASED UPON THE TOTALITY OF THE
CIRCUMSTANCES, THE TERRY STOP AND FRISK OF THE
DEFENDANT WAS UNREASONABLE AND IMPERMISSIBLE.
We reject defendant's argument and affirm.
2 A-5704-14T1
In the early morning hours of May 17, 2013, specifically at
about 2:30 a.m., Asbury Park Police Officers William Whitley and
Daryl Whitley were conducting crowd control activities near a
restaurant known as "Mr. Pizza." Police were routinely dispatched
to this area during the early morning hours because crowds would
gather after clubs closed. This was a high-crime area, with a
high level of drug activity and gun violence. The officers were
keenly aware of these characteristics.
While dispersing the crowd, William Whitley recognized
defendant. He did not know defendant personally, but he knew him
from the neighborhood in Asbury Park in which William Whitley grew
up. He knew that defendant's street name was "Rocky," and that
defendant had a prior history of drug activity and possession of
a firearm.
A short while later, both William Whitley and Daryl Whitley
heard a gunshot ring out. William Whitley called in a report of
the shot to police headquarters. He then ran on foot to the
location in the area of Ivy Place where the shot appeared to have
come from. Daryl Whitley got into his patrol vehicle and drove
toward that area.
As he was running toward the area, William Whitley heard
three more shots ring out from the same area. When he arrived at
Ivy Place, he observed defendant walking slowly and calmly toward
3 A-5704-14T1
a parked vehicle with a partially opened door. As he walked,
defendant was looking over his shoulder. His demeanor and conduct
struck William Whitley as being suspicious.
Because of the nature of the neighborhood as a high crime
area with known episodes of gun violence, because of defendant's
suspicious demeanor, because William Whitley was aware of
defendant's prior drug activity and firearm possession, and
because four shots had recently been fired from that immediate
area, with defendant being the only person there, William Whitley
drew his sidearm and pointed it at defendant. He ordered him to
show his hands and lay on the ground. Defendant complied. As he
did so, William Whitley observed the handle of a handgun protruding
from defendant's rear pants pocket.
As this was happening, Daryl Whitley arrived in his patrol
car. William Whitley seized the handgun from defendant's pocket
and gave it to Daryl Whitley. William Whitley proceeded to pat
down defendant for any additional weapons and placed him under
arrest.
At about this time, Detective Javier Campos arrived on the
scene. He searched defendant's person incidental to the arrest
and recovered cash in the amount of $3648.
Campos then approached the vehicle that defendant had been
walking toward. He observed in plain view what appeared to be
4 A-5704-14T1
cocaine in the panel of the driver's side door and also in the
center console area. Because of those observations, the police
had the car towed to the police station. At some point, the
individual who was the lessee of the car and had lawful authority
over it came to the police station. She consented to a search of
the car. Additional cocaine was found in the trunk.
At the suppression hearing, William Whitley and Campos
testified for the State. Daryl Whitley was called by the defense.
Through their testimony, the facts we have related were elicited.
Defendant's argument at the suppression hearing was that the
initial investigatory stop and pat down of defendant was
unjustified, and thus the seizure of the weapon from his person
was unlawful, as a result of which evidence of the weapon should
have been suppressed. Defendant further argued that because the
initial police action was unlawful, and because it provided the
impetus for the search of defendant's person and of the car,
evidence seized from defendant's person and from the car should
have also been suppressed because they constituted fruit of the
initial unlawful search.
After hearing all of the evidence and arguments of counsel,
Judge Anthony J. Mellaci, Jr. issued a comprehensive and well-
reasoned oral opinion. Despite the vigorous cross-examination and
defense arguments attacking the credibility of the State's
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witnesses, Judge Mellaci found that both William Whitley and Campos
were very credible witnesses. He explained in detail the basis
for those credibility findings. Likewise, he found Daryl Whitley
to be very credible.
Judge Mellaci summarized his factual findings regarding the
stop and pat down of defendant, the critical portion of this
episode, as follows:
He [William Whitley] says, while clearing the
cloud [sic], he heard a total of four shots
-- one and then three more -- coming from what
he believed to be Ivy Place, which was down
the street. He said how did you know that
that's where they came from? I -- I -- I've
heard shots before. I've heard firecrackers.
Sounded like shots. Sounded like where they
came from. I beat feet and ran down there.
Now, whether it took him 10 seconds, 15
seconds, 20 seconds, 30 seconds, to me, is of
no moment.
The crucial testimony is when he got down at
the end of the block, he saw one person in
close proximity to him, within four or five
feet, walking towards the car, reached to the
car to open it up. He immediately told that
person to stop, get down on the ground. It's
then that the second Officer Whitley, Daryl
Whitley, apparently shows up, either
immediately prior to -- immediately prior to
Mr. Edgerton being ordered to the ground.
He said it was his intention based on the
things that he had pointed out, which included
what he believed to be a history of this
individual with a firearm, the shots being
fired in closed proximity, the length of time
it took him to run down to where he located
Mr. Edgerton, the fact that Edgerton was the
6 A-5704-14T1
closest one to him, that he was looking over
his shoulder at what he believed to be a little
bit of a strange manner, and that he wasn't
running from the shots -- he was walking --
that caused him for his safety to order him
down, so that he can conduct a Perry stop --
a Terry pat down.
He indicates that before he actually took part
in the Terry pat down, when defendant got to
the ground, he saw the butt handle of a handgun
sticking out of his back pocket. I've heard
no contradictory information to that effect
during this trial. I have no reason not to
believe that's what he saw and I certainly
have no reason to believe that he didn't have
a reasonable and articulable suspicion to
order the man down. Certainly, I think I would
have done the same thing, if I was out in the
street at that point. He takes the gun, brings
him over, continues to pat him down. The gun
is handed off to somebody else.
Based upon those findings of fact, the judge concluded that
William Whitley, under the totality of the circumstances,
possessed a reasonable and articulable suspicion that defendant
was engaged in criminal activity and might be armed and dangerous,
thus justifying the investigatory stop and the protective search
for his own safety and that of others in the area. The judge also
concluded that the plain view observation of drugs in the car and
the subsequent consent search of the car were valid on their own
and were not the fruit of any prior unlawful police activity. He
therefore denied defendant's motion to suppress in its entirety.
7 A-5704-14T1
On appeal, defendant primarily reargues the facts. His
argument focuses on pointing out aspects of William Whitley's
testimony which might have a tendency to weaken his credibility.
However, the same arguments were presented to Judge Mellaci. In
the overall context of William Whitley's testimony, Judge Mellaci
was satisfied that these points were relatively insignificant and
did not compromise William Whitley's credibility. The judge
expressed his credibility finding about William Whitley, thusly:
Much has been made about the false testimony
of Officer [William] Whitley. Look, I sat
here. I watched him. I listened to him. I
listened to him under direct examination and
I watched him, and I listened and watched him
under cross-examination. Was he the most
articulate witness I've ever seen? Absolutely
not. Did he leave some things out of his
report that he could have put in? Every time
he was questioned about something he may have
left out his report, he said well, I didn't
think it was important at that point. You
know, I was more focused on this. To me,
that's believable. I did not find him to be
incredible. I did not find him to be a liar.
I find him -- found him to testify to the best
of his recollection, based on the one-page
report that he did, of an incident that
happened about 18 months ago now. I found it
to be credible and I heard no contradictory
story to anything he said. So, no, I -- I
don’t find him to be a deceptive witness, a
non-credible witness.
Our review of a trial court's decision on a suppression motion
is circumscribed. We must defer to the trial court's factual
findings as long as those findings are supported by sufficient
8 A-5704-14T1
credible evidence in the record. State v. Elders, 192 N.J. 224,
243 (2007). A reviewing court should especially "give deference
to those findings of the trial judge which are substantially
influenced by his opportunity to hear and see the witnesses and
to have the 'feel' of the case, which a reviewing court cannot
enjoy." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). Those findings should only be disregarded when they are
clearly mistaken. State v. Hubbard, 222 N.J. 249, 262 (2015)
(citing Johnson, supra, 42 N.J. at 162). "A trial court's findings
should not be disturbed simply because an appellate court 'might
have reached a different conclusion were it the trial tribunal.'"
State v. Handy, 206 N.J. 39, 44-45 (2011) (quoting Johnson, supra,
42 N.J. at 162). Abiding by these principles, we have no occasion
to interfere with Judge Mellaci's credibility assessments of all
of the witnesses, including William Whitley, and on all of the
judge's factual findings, which are amply supported by sufficient
credible evidence in the record.
Based upon those findings, Judge Mellaci applied the correct
legal principles in reaching the conclusion that the initial
investigatory stop and pat search were legally justified under
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
The facts found by the trial court, which we accept, overwhelmingly
support the conclusion that the reasonable and articulable
9 A-5704-14T1
suspicion test required for a Terry stop was satisfied here. We
affirm substantially for the reasons expressed by Judge Mellaci
in his oral opinion of November 5, 2014.
Affirmed.
10 A-5704-14T1
STATE OF NEW JERSEY VS. DAMEION L. EDGERTON (14-04-0718, MONMOUTH COUNTY AND STATEWIDE)
Combined Opinion