                                NOT FOR PUBLICATION WITHOUT THE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

                                                                            A-5854-17T4
                                         2
"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


                                                                          A-5854-17T4
                                        3
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




                                                                        A-5854-17T4
                                       4
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

                                                                          A-5854-17T4
                                           5
            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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                                         6
      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.




                                                                            A-5854-17T4
                                         7
      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.


                                                                         A-5854-17T4
                                       8
      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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