State v. Curry, DOCKET NO. A-1134-18T4

• Decision Date: 13 November 2020
• Docket Number: DOCKET NO. A-1134-18T4
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. TERRELL E. CURRY, JR., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. TERRELL E. CURRY, JR., Defendant-Appellant.

DOCKET NO. A-1134-18T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted September 30, 2020

November 13, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Fisher and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 16-08-1275.

Joseph E. Krakora, Public Defender, attorney for appellant (Scott M. Welfel, Assistant Deputy Public Defender, of counsel and on the briefs).

Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Patrick F. Galdieri, II, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Terrell Curry, Jr. was arrested on suspicion of driving while intoxicated. In a search of his person incident to his arrest, he was found to be in possession of two handguns. His motion to suppress the seizure of the guns was denied and he pled guilty to two counts of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Defendant also pled guilty to two other crimes arising out of separate incidents: second-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f); and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a).

On the convictions for unlawful possession of the handguns, defendant was sentenced to concurrent prison terms of six years with forty-two months of parole ineligibility as prescribed by the Graves Act, N.J.S.A. 2C:43-6(c). On the conviction for possession of an assault firearm, defendant was sentenced to a consecutive prison term of five years with forty-two months of parole ineligibility as prescribed by the Graves Act. On the conviction for theft, defendant was sentenced to three years in prison. That sentence was run concurrent to his sentence for the convictions of the unlawful possession of the handguns.

Defendant argues that there was no probable cause for his arrest and his motion to suppress the seizure of the handguns should have been granted. Wedisagree and affirm his convictions. Defendant also contends that his sentence was excessive because the court failed to find a mitigating factor, erred in finding an aggravating factor, and failed to properly analyze the consecutive sentences. We also disagree with those arguments and affirm his sentence.

I.

In this appeal, defendant challenges his convictions for unlawful possession of two handguns. Those charges arose out of defendant's arrest in March 2015 for driving while intoxicated. On the morning of March 5, 2015, the car defendant was driving struck a guardrail on Interstate Highway 287.

An evidentiary hearing was conducted on defendant's motion to suppress on September 21, 2017. One witness testified at that hearing: New Jersey State Police Trooper Hector Rodriguez. The State also submitted into evidence a DVD with video footage copied from the mobile video recorder (MVR) on the trooper's vehicle.

Rodriguez testified that on March 5, 2015, just after 8 a.m., he received a report of a motor vehicle accident near exit 10 on the northbound side ofInterstate 287.¹ He responded and when he arrived two Piscataway police officers and EMTs with an ambulance were already at the scene.

Rodriguez spoke to the police officers and surveyed the scene. He saw a Mercury Mountaineer, which had struck a guardrail and sustained front-end damage. He noted that no other vehicle was involved in the accident.

Rodriguez learned that there had been a driver and six passengers in the Mountaineer. The six passengers were already in the ambulance and Rodriguez was informed that some of them were complaining of injuries. Rodriguez observed that the driver was outside the vehicle walking around. He later learned that the driver was defendant. Rodriguez approached and spoke with defendant. He testified he detected an odor of alcohol coming from defendant's mouth and observed that defendant had "bloodshot watery eyes with droopy lids." He also thought defendant's speech was slow and slurred.

Rodriguez asked defendant what happened and defendant responded that he had been driving in the center lane, tried to take exit 10, which was to the right, he lost control of the vehicle, and it hit the guardrail. Defendant also told Rodriguez that he had been drinking at a party the night before.

Rodriguez then directed defendant to perform two field sobriety tests: the walk and turn test and the one-leg-stand test. During Rodriguez's testimony, the State introduced the MVR video into evidence and played it.

Rodriguez testified that defendant did not pass or fail either test but displayed certain clues that caused him to suspect that defendant had been driving while intoxicated. Rodriguez went on to explain that based on the totality of the circumstances he observed at the scene of the accident, he believed he had probable cause to arrest defendant for driving while intoxicated.

Accordingly, defendant was placed under arrest. Rodriguez advised defendant of his Miranda² rights. He then asked defendant if he had anything on him that could harm Rodriguez. Defendant responded that he had two guns, one in his right pants' pocket and another in his left front pants' pocket. Defendant was searched and found to possess two loaded handguns, a revolver and a semi-automatic pistol.

Thereafter, defendant was taken to "headquarters" where he was strip-searched. During that search, defendant was found to be in possession of twenty-three pills that were later confirmed to be Oxycodone. Sometimebetween 10 a.m. and 11 a.m. that same day, defendant was given a breathalyzer test and his results revealed that he had a blood alcohol concentration of 0.07%.

Following the testimony by Rodriguez, counsel presented oral arguments on the motion to suppress. The motion court then reserved decision. On October 20, 2017, the court issued a written opinion and order denying the motion to suppress the seizure of the two handguns.

The court found that there was probable cause to arrest defendant on suspicion of driving while intoxicated and the search incident to his arrest was lawful. Analyzing the arrest, the court found that defendant had admitted to consuming alcohol before the accident, his breath smelled of alcohol after the accident, and there was no evidence that the accident was caused by anything other than defendant losing control of the vehicle. The court found that those facts, when considered in the totality of the circumstances, gave rise to probable cause to believe that defendant had been driving while intoxicated.

In making its findings, the court did not credit Rodriguez's testimony that defendant had slow or slurred speech. Instead, the court reviewed the MVR video and found that defendant's speech was not slow or slurred.

The court also found that defendant had not failed the field sobriety tests. Instead, the court found that there was conflicting evidence as to whether thetests were properly administered and, accordingly, the court did not rely on them.

Finally, the court found that the search of defendant's person was lawful because it was conducted incident to his arrest. The court also found that the Oxycodone pills were lawfully seized because those pills would have inevitably been found during an inventory search of defendant's property following his arrest.

In connection with his arrest in March 2015 and the seizure of the handguns, defendant was charged with nine crimes: two counts of second-degree unlawful possession of a weapon; three counts of fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2); three counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(3); and third-degree possession of Oxycodone without a prescription, N.J.S.A. 2C:35-10(a)(1).

Defendant was also charged with multiple other crimes under two indictments arising out of separate incidents. Under one of those separate indictments, defendant was charged with three third-degree theft-related offenses. Under the other indictment, defendant and eight other co-defendants were charged with numerous drug and weapons-related offenses.

Following the denial of his motion to suppress the seizure of the handguns, defendant entered into a plea agreement to resolve the charges in all three indictments. He pled guilty to two counts of unlawful possession of a handgun, one count of theft, and one count of unlawful possession of an assault firearm. As part of the plea agreement, the State agreed to dismiss all the other charges and to recommend that he be sentenced to three years in prison for the theft conviction, six years in prison for the unlawful possession of the handguns, and six years in prison for the unlawful possession of the assault firearm. Defendant was sentenced consistent with the recommendation made in the plea agreement.

II.

On appeal, defendant challenges his convictions for the possession of the handguns and his sentence. He articulates his arguments as follows:

POINT I - BECAUSE THE STATE FAILED TO ESTABLISH PROBABLE CAUSE TO ARREST CURRY FOR DRIVING WHILE INTOXICATED, THE FRUITS OF THE SUBSEQUENT WARRANTLESS SEARCH SHOULD HAVE BEEN SUPPRESSED.

A. The Accident, Admission to Having a Drink At Least Eight Hours Earlier, and Slight Smell of Alcohol on the Breath Did Not Add Up to a "Well Grounded Suspicion" that Curry Was "So Affected In Judgment Or Control As To Make It Improper For Him To Drive."

B. The Judge Erred in Finding that the Accident "Occurred For No Explainable Reason Other Than Defendant's Mishandling Of His Vehicle" and in Finding that Curry's Breath Smelled of Alcohol.

i. The Judge's Finding that the Accident "Occurred For No Explainable Reason Other Than Defendant's Mishandling Of His Vehicle" Was Clearly Mistaken and Not

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