STATE OF NEW JERSEY VS. WILLIAM VELEZ (17-05-1243, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5854-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM VELEZ, a/k/a WILL
VELEZ, WILLIAM E. VELEZ,
and WILLIAMS VELEZ,
Defendant-Appellant.
Submitted January 28, 2020 - Decided March 17, 2020
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 17-05-1243.
Joseph E. Krakora, Public Defender, attorney for
appellant (James K. Smith, Jr., Assistant Deputy Public
Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sarah D. Brigham, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant William Velez appeals from the April 11, 2018 order denying
his motion to suppress evidence seized following a traffic stop of his vehicle.
After a review of the contentions in light of the record and applicable principles
of law, we affirm.
We derive the facts from testimony presented at the suppression hearing.
While on patrol, Belleville police officer Gary Devito observed a car with a non-
working headlight. Several minutes later, the officers came up behind the same
car and noticed a taillight was also not working. Devito turned on the overhead
lights to conduct a traffic stop and his partner, Officer John Rossi, called in the
vehicle's license plate to dispatch as well as the officers' location. Turning on
the overhead lights also activated the car's movable-video recording device, also
referred to as a dashcam.
Headquarters informed the officers that the registered owner of the vehicle
was defendant, and his license was suspended. After learning this information,
the officers approached the vehicle. As they did so, Devito observed a metal
baseball bat "resting against . . . [defendant's] left leg and the door handle."
Devito asked defendant for his driving credentials, but defendant did not
have a license because it was suspended. Devito then asked defendant to step
out of the vehicle. As defendant got out of the car, Devito testified he
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"immediately observed underneath the driver's . . . seat the butt of a handgun."
Devito escorted defendant to the back of the vehicle and asked him why he had
the bat and what was underneath the seat.
Devito explained that he did not immediately remove the gun from the
car, because if he did so, and defendant were to run at him or grab him, the gun
would be unsecured, and he would be in an unsafe situation. According to
Devito, asking defendant to get out of the car and escorting him to the back of
the patrol car placed defendant at a safe distance from the gun.
Devito testified that after talking with defendant, he left Rossi behind the
car with defendant, and walked to the driver's side of the vehicle and confirmed
that the weapon was a real handgun. After confirming this, defendant was
arrested and put in the back seat of the police car. Devito showed Rossi the
handgun and told him to search the vehicle in order "to make sure there was no
other contraband or bullets . . . lying anywhere else." The dashcam recording
was played during the hearing.
Defendant was charged with second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b), and fourth-degree possession of hollow-point
bullets, N.J.S.A. 2C:39-3(f). He later moved to suppress the evidence, asserting
it was an unlawful search and seizure because the police did not have sufficient
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reasonable suspicion that defendant had committed a motor vehicle offense to
justify the stop of his car. He further contended the search and seizure was not
justified under either the plain view exception to the Fourth Amendment or the
doctrine of inevitable discovery. Defendant argued that Devito had not seen the
gun before he searched the car.
In a written decision of April 11, 2018, the judge denied the motion. He
found Devito credible, noting his testimony was consistent with what was
observed on the dashcam recording. The judge held that the evidence was
admissible because the officers: (1) had probable cause to stop defendant's
vehicle; and (2) lawfully seized the weapon under the plain view exception to a
warrantless search. He found Devito's explanation for his actions during the
stop and search was plausible.
In addressing probable cause, the judge stated that the officers observed
defendant was driving his car with both a headlight and a taillight out, in
violation of N.J.S.A. 39:3-66, and they were informed that defendant had a
suspended license, in violation of N.J.S.A. 39:3-40. Therefore, the officers had
the "requisite reasonable suspicion" of a motor vehicle offense to conduct a
motor vehicle stop. Because defendant's license was suspended and he could
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not produce it, the judge determined the officers were permitted to order
defendant out of his car and arrest him.
In finding the State had satisfied the plain view exception to a warrantless
search, the judge reiterated his finding that Devito was credible. The judge
rejected defendant's argument that the dashcam video supported his contention
that Devito did not see the gun until defendant had already been out of the car
for several minutes. The judge noted that defendant had not offered any
witnesses to rebut Devito's testimony, nor any proof of his argument other than
asserting his subjective view of the dashcam video. The judge stated "Devito
was lawfully in the viewing position when he observed the gun in plain view.
Furthermore, it must have been immediately apparent to Devito, based on his
training and experience as a police officer, that the item protruding from the
driver's seat of the car was a firearm."
Defendant thereafter pleaded guilty to second-degree unlawful possession
of a handgun and was sentenced to five years in prison with a mandatory parole
ineligibility period of forty-two months.
Defendant raises one issue on appeal:
THE SEIZURE OF THE GUN CANNOT BE
JUSTIFIED UNDER THE PLAIN VIEW DOCTRINE
BECAUSE, AS THE DASHCAM VIDEO SHOWS,
THE OFFICER DID NOT SEE THE GUN UNTIL
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AFTER HE HAD BEGUN SEARCHING
DEFENDANT'S CAR. THE JUDGE WAS WRONG
IN ACCEPTING THE CREDIBILITY OF THE
POLICE OFFICER WHO ADMITTEDLY LIED
ABOUT KEY DETAILS OF THE SEARCH IN HIS
POLICE REPORT AND GRAND JURY
TESTIMONY.
A trial court's factual findings in a suppression hearing are afforded great
deference. State v. Gonzales, 227 N.J. 77, 101 (2016). In reviewing a motion
to suppress, we defer to the findings of fact and credibility determinations of the
trial judge, recognizing that he or she has had an "opportunity to hear and see
the witnesses and to have the 'feel' of the case, which a reviewing court cannot
enjoy." State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42
N.J. 146, 161 (1964)). We will uphold the trial judge's decision so long as it is
"supported by sufficient credible evidence" and not "so clearly mistaken 'that
the interests of justice demand intervention and correction.'" State v. Scriven,
226 N.J. 20, 32-33 (2016) (quoting Elders, 192 N.J. at 243-44).
"[A] trial court's reliance, in part, on [a] video d[oes] not extinguish the
deference the Appellate Division owe[s] to the trial court's factual findings."
State v. S.S., 229 N.J. 360, 374 (2017) (citing Elders, 192 N.J. at 244-45). Even
when factual findings are "based solely on video or documentary evidence," this
court must defer to the trial court's decision. Id. at 379.
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On appeal, defendant does not challenge the lawfulness of the traffic stop.
He only asserts that the judge erred in finding the seizure of the gun was justified
under the plain view doctrine. We disagree.
As the United States and New Jersey Constitutions guarantee an
individual's right to be free from "unreasonable searches and seizures," U.S.
Const. amend. IV; N.J. Const. art. I, ¶ 7, a "warrantless search is presumed
invalid unless it falls within one of the recognized exceptions to the warrant
requirement." State v. Wilson, 178 N.J. 7, 12 (2003) (quoting State v. Cooke,
163 N.J. 657, 664 (2000)).
One exception to the warrant requirement permits police officers to “seize
evidence found ‘in plain view’ despite the lack of a warrant.” State v. Perry,
124 N.J. 128, 148 (1991) (citing State v. Hill, 115 N.J. 169, 173 (1989)). "Under
the plain-view doctrine, the constitutional limiting principle is that the officer
must lawfully be in the area where he [or she] observed and seized the
incriminating item or contraband, and it must be immediately apparent that the
seized item is evidence of a crime." Gonzales, 227 N.J. at 101. If police officers
conducting a traffic stop have met these requirements, they may seize evidence
of a crime in plain view. Id. at 82.
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Defendant asserts that the dashcam video and Devito's actions
demonstrate that the officer did not see the handle of the gun when defendant
got out of the car. Instead, defendant contends the gun was not discovered until
several minutes later, after Devito searched the car with a flashlight. Defendant
also attacks Devito's credibility, highlighting one inconsistent statement in the
police report and in his grand jury testimony as to whether he told defendant to
put his hands into the air. Devito acknowledged that comment was not correct.
As noted, we accord great deference to the trial judge's fact-findings in
our review of an order denying the suppression of evidence seized pursuant to a
warrantless search. We disturb those findings "only if they are so clearly
mistaken that the interests of justice demand intervention and correction." State
v. Robinson, 200 N.J. 1, 15 (2009) (quoting Elders, 192 N.J. at 244).
Here, the judge reviewed the dashcam video and considered Devito's
testimony, which he found credible and consistent with the video. The judge
noted Devito spoke with a calm demeanor during direct and cross-examination.
He said Devito's testimony did not waver, he "readily acknowledged
inconsistencies and omissions, and did not appear to testify with an intent to
deceive or be elusive." The judge made factual findings based on both the
testimony and the video evidence.
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Defendant urges this court to disregard those findings and instead adopt
his subjective view of the actions seen on the dashcam video. We decline to do
so. We will defer to the judge's determination that Devito's explanation of his
actions was "plausible." We discern no basis to substitute defendant's subjective
interpretation of the video footage for the reasonable inference drawn by the
trial judge upon his viewing of the dashcam recording and observation of
Devito's testimony. See S.S., 229 N.J. at 380 (holding that "[w]hen more than
one reasonable inference can be drawn from the review of" documentary
evidence, "then the one accepted by a trial court cannot be unreasonable" and
"the mere substitution of an appellate court's judgment for that of the trial court's
advances no greater good.").
We are satisfied the denial of defendant's motion to suppress the handgun
was supported by the credible evidence in the record. Because the traffic stop
was justified, Devito was lawfully in the area when he observed and seized the
gun. He testified that "he immediately observed underneath the driver's . . . seat
the butt of a handgun." Therefore, the State met the requirements to satisfy the
plain view exception to the warrant requirement.
Affirmed.
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