State v. Landes
| Decision Date | 15 January 2021 |
| Docket Number | DOCKET NO. A-1053-19T3 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRETT J. LANDES, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Whipple, Rose, and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 18-03-0038.
Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Catlin A. Davis, Deputy Attorney General, of counsel and on the brief).
Defendant Brett J. Landes appeals from an October 24, 2019, judgment of conviction (JOC) following a jury trial. We affirm but remand to correct the JOC.
We glean these facts from the trial record. On January 17, 2017, defendant was traveling southbound on the New Jersey Turnpike in his Mercedes SUV hatchback. He entered a construction zone where traffic was funneled into a single, left lane behind a vehicle operated by Vernon McCallum who was traveling home to North Carolina. According to McCallum, defendant repeatedly drove close to his bumper and blew his horn. Defendant contended that McCallum initiated an altercation by throwing objects at his car as he drove by. After passing the construction zone, McCallum moved to the right lane so that defendant could pass him.
Defendant continued travelling in the left lane alongside McCallum side-by-side and began shouting at McCallum. Initially, McCallum ignored defendant, but then he observed defendant roll down his window, turn on the interior light, and point a gun at him in an apparent episode of road rage. In response, McCallum "slammed on [his] brakes" because he was scared and didnot know "what [defendant's] motive was" for pointing the gun. Defendant testified at trial that he never pointed a gun at McCallum.
Thereafter, McCallum called 9-1-1 to report the incident claiming there was a "road rage guy," driving a gray Mercedes Benz with a Virginia license plate. McCallum continued to follow defendant while on the phone with the operator so that State Troopers would be able to find defendant. Ultimately, State Troopers Finney and Kaminski responded to the 9-1-1 call, located defendant and McCallum, and initiated a stop of defendant's vehicle. McCallum also stopped to give a statement to the Troopers.
Troopers Finney and Kaminski removed defendant from his vehicle, walked him to the hood, and frisked him for weapons. The frisk did not reveal a weapon on defendant's person; however, a sweep of defendant's vehicle by Trooper Finney using a flashlight uncovered a handgun on the floor behind the driver's seat in a partially unzipped black bag. Defendant continued to lean against the hood of his vehicle while speaking to Trooper Kaminski. The Troopers claimed the handgun was loaded. Defendant disputed this and contended the handgun was unloaded and secured in a closed carrying bag with the magazines stored in a separate zippered compartment. Trooper Kaminskiplaced defendant under arrest, read him his Miranda1 rights, and put him in the back seat of the police vehicle. Defendant signed the back of the Miranda card. After returning to defendant's car, Trooper Kaminski secured the handgun and searched the bag, which contained two knives and ammunition.2 Trooper Finney's digital in-car video record (DIVR) captured the stop.
Defendant was transported to Moorestown police headquarters where he consented to undergo a formal interview. Trooper Kaminski and Detective Philip Conza were present for the interview. Defendant rendered different versions of what occurred that night, at first claiming he only pointed a tire stick at McCallum. Defendant then changed his story and claimed he pointed a knife. Ultimately defendant admitted he pointed a handgun because McCallum was "brake checking" him, threw a bottle out of his car window, defendant felt "threatened," and McCallum "needed to stop doing what he was doing." Defendant had a permit to carry the handgun from his home state of Virginia but did not have a carry permit in New Jersey.
On March 6, 2018, defendant was indicted for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); fourth-degree possession of prohibited devices (hollow-point bullets), N.J.S.A. 2C:39-3(f) (count two); and fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (count three).
Defendant moved to suppress his statements made to police at headquarters. He claimed Trooper Kaminski and Detective Conza failed to "scrupulously honor" his invocation of his right to counsel. On August 10, 2018, the trial court conducted a Miranda hearing to determine whether defendant waived his right to counsel during his conversation with Trooper Kaminski and Detective Conza. The court heard testimony and oral argument on defendant's motion to suppress his statements.
Defendant and Detective Conza testified at the Miranda hearing. Testimony at the suppression hearing revealed that at the beginning of the interview, before being advised of his rights, defendant asked Trooper Kaminski and Detective Conza, "do I need an attorney?" Detective Conza responded by stating, Thereafter, Detective Conza read defendant his Miranda rights. Defendant made several similar statements such as "depending on whether Ileave today, does that determine whether I need an attorney or not?"; "I don't even know how to even get an attorney here."; and, "I mean, so do I need a lawyer now (inaudible)?".
The following exchange took place between Detective Conza and defendant:
Detective Conza reminded defendant of the seriousness of the charges, his right to request an attorney, and his ability to exercise that right. After the conclusion of the hearing on August 23, 2018, the trial court issued a written opinion and ruled that defendant made an ambiguous request for counsel, but the totality of the circumstances indicated defendant's clear intent to waive his right to counsel by continuing to speak with law enforcement officers.
Defendant also moved to suppress evidence seized from his car during the traffic stop. He argued both the traffic stop and the subsequent search of his vehicle were unlawful. On September 6, 2018, the trial court heard testimonyand oral argument on defendant's motion to suppress evidence found inside his vehicle. Defendant and Trooper Finney testified at the hearing. In denying defendant's motion to suppress the physical evidence in a written decision entered on September 28, 2018, the trial court noted defendant was stopped based on a reasonable suspicion he was armed and that he had threatened McCallum with a handgun. The trial court determined Trooper Finney acted within the scope of a protective sweep by conducting a search of defendant's vehicle of the areas accessible from the driver's seat. And, the handgun and bag were in "plain view."
Prior to trial, the State moved in limine to preclude defense counsel from introducing evidence of McCallum's six previous criminal convictions, including drug offenses. The trial court granted the State's motion in part and allowed defense counsel to cross-examine McCallum as to three of his prior convictions and ruled the other three convictions were inadmissible for impeachment purposes. Defendant was tried before a jury. After the State rested, defendant moved for a judgment of acquittal, which was denied by the trial court.
The jury found defendant guilty on all three counts of the indictment. Defendant was sentenced to five years' imprisonment with a forty-two monthparole disqualifier under the Graves Act, N.J.S.A. 2C:43-6(c), on count one; a one-year concurrent term of imprisonment on count two; and a concurrent term of imprisonment of eighteen months, with an eighteen-month parole disqualifier, under the Graves Act, on count three. This appeal followed.
On appeal, defendant argues:
Having reviewed the facts in light of the applicable principles of law, we find no merit in defendant's arguments.
We first address defendant's argument that the trial court erred in denying his motion to suppress statements made to the police. In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted), see also, State v. Tillery, 238 N.J. 293, 314 (2019. However, the trial court's application of the law to the factual findings is not given the same deference....
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