                                NOT FOR PUBLICATION WITHOUT THE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-0789-17T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

AMIR H. JEFFERSON,

     Defendant-Appellant.
_____________________________

                   Submitted March 20, 2019 - Decided May 22, 2019

                   Before Judges Fuentes and Accurso.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 14-04-
                   0413.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Kevin G. Byrnes, Designated Counsel, on
                   the brief).

                   Andrew C. Carey, Middlesex County Prosecutor,
                   attorney for respondent (David Michael Liston,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Following the denial of his motion to suppress evidence seized in a

warrantless search, defendant Amir H. Jefferson pleaded guilty to second-degree

possession of a controlled dangerous substance with intent to distribute,

N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2), and third-degree promoting

prostitution, N.J.S.A. 2C:34-1(b)(2).    After the judge denied his motion to

withdraw his plea, defendant was sentenced on the drug conviction in

accordance with a negotiated agreement to a term of ten years in State prison,

with five years of parole ineligibility, and to a concurrent five-year term on his

conviction for promoting prostitution. Defendant appeals from the denial of his

motions to suppress and withdraw his guilty plea as well as from his sentence.

Finding no basis to disturb the trial court's factual findings or legal conclusions

on any of these issues, we affirm.

      The only witness to appear at the suppression hearing was the arresting

officer. He testified he had been temporarily assigned to the detective bureau to

aid in locating a missing person, a young woman addicted to heroin who had

reported to her mother that her pimp had assaulted her. Detectives suspected

the pimp was supplying the woman with heroin. Police met her in room 526 at

a hotel in Edison in the middle of the day. After sweeping the hotel corridor,

including a vending area, two officers entered the young woman's room, while


                                                                          A-0789-17T2
                                        2
the arresting officer remained in the hallway waiting for the suspect pimp. Other

officers were similarly stationed on other floors of the hotel.

      Although the witness testified that other officers had a fuller description

of the suspect, the only description provided the witness was that the suspect

was "a larger black male." About forty-five minutes after the officer took his

position on the fifth floor, defendant, a black man, about 6'2" or 6'3" and

weighing over three hundred pounds, got off the elevator and started down the

hallway toward room 526. According to the officer, as defendant passed, he

glanced at the large police radio the officer was holding, looked at his own cell

phone and turned and walked in the opposite direction. As he did so, the officer

noticed defendant move his left hand over his jacket pocket as if to conceal

something.

      Defendant entered the vending area, about five feet away from where the

officer was standing. After hearing "some rustling and . . . two soft thuds," the

officer pulled his service weapon and ordered defendant out into the hallway.

Defendant emerged holding a couple of dollar bills in his hand. The officer

radioed he had a possible suspect, ordered defendant to his knees and was in the

process of handcuffing him when two officers emerged from room 526 to assist.

The woman then stepped into the hallway saying, "That's him," and defendant


                                                                        A-0789-17T2
                                        3
was arrested. Asked how much time elapsed between ordering defendant out of

the vending area and his arrest, the officer said it was "[a] minute, tops."

      Asked why he pulled his gun before ordering defendant into the hallway,

the officer testified he did it for his safety, explaining the police had information

defendant was involved in narcotics, and "with drugs there are guns." Although

no drugs or weapons were found on defendant in a search incident to his arrest,

police discovered drugs in the vending area. The witness testified that when he

entered the vending area after defendant's arrest, he smelled raw marijuana ,

which was not present when he did his protective sweep. Borrowing a chair

from one of the guest rooms, the officer found five baggies of marijuana, 197

wax folds of heroin and 31.5 grams of cocaine in the drop ceiling.

      After hearing that testimony and the arguments of counsel, the trial court

judge denied defendant's motion to suppress the drugs as fruit of the poisonous

tree. The judge rejected defendant's argument that he was arrested without

probable cause when the officer ordered him to his knees at gunpoint and

handcuffed him.     The judge found the officer did not immediately accost

defendant as he got out of the elevator but "allowed him some movement."

Observing those movements, defendant walking toward room 526, abruptly

switching direction after noticing the officer holding a police radio, and then


                                                                            A-0789-17T2
                                         4
rustling around in the vending area, gave the officer reasonable articulable

suspicion to effect an investigative detention. The judge found that there might

have been other innocent explanations for defendant's conduct did not take away

from the officer's reasonable suspicion. The judge found the officer credible

and his testimony unrebutted. The judge rejected defendant's argument that the

officer drawing his weapon and handcuffing him turned the detention into an

effective arrest. The judge found the detention was brief, and that the officer

acted out of consideration for his safety.

      Three-and-a-half years after the decision on the suppression motion and a

week before a second scheduled trial date, defendant entered his guilty plea.

During the period between denial of the suppression motion and the plea,

defendant switched counsel several times and pursued unsuccessful motions

made at different times to dismiss the human trafficking count and sever the

drug counts of the indictment from those relating to human trafficking and

promoting prostitution. Although expressing dissatisfaction during the plea

colloquy with the court's unwillingness to "develop the record on the conflict of

interest issues that haven’t been ruled on" and his counsel's unwillingness to

obtain the victim's phone records, defendant told the court he was satisfied with




                                                                        A-0789-17T2
                                        5
his attorney's advice, that no one had forced or pressured him to plead guilty and

that he was doing so because he was guilty.

      At his sentencing four months later, however, defendant moved with new

counsel to withdraw his plea and assert a claim of ineffective assistance of plea

counsel. He also filed two pro se motions to reconsider the denial of his

suppression motion and his motion to dismiss the indictment.           Defendant

claimed he did not possess the drugs found in the vending area ceiling and that

he had no knowledge the victim was meeting with men for sex. He also claimed

the only reason he pleaded guilty was because plea counsel made "a hidden

promise with . . . the Prosecutor's Office" that the case "would be over, closed,

there'd be no parole" after the five-year parole ineligibility term.

      The State opposed the motions, asserting defendant had no colorable claim

of innocence as the State had defendant's records of the victim's appointments

and text messages between the two indicating defendant was distributing drugs

to her after she engaged in sexual acts with others for money. The prosecutor

asserted the texts showed the victim was "begging [defendant] for [drugs]

because she has an addiction" and he was giving her drugs on a daily basis in

order to keep control over her. The prosecutor also recounted the long delays in

prosecuting the case occasioned by defendant switching lawyers five times, and


                                                                         A-0789-17T2
                                         6
noted the State had twice prepared for trial. The prosecutor asserted those long

delays would prejudice the State were it to have to try the four-year-old-case,

notwithstanding the victim's continued willingness to testify.

      Reviewing all four Slater1 factors, the judge found defendant lacked any

colorable claim of innocence, defendant's reasons for wishing to withdraw his

plea were not borne out in the record, the existence of a plea bargain favored the

State and withdrawal of the plea would cause the State unfair prejudice due to

the long delay in prosecuting the case as defendant cycled through several

lawyers. Recalling the extended colloquy in which he engaged defendant before

accepting his plea, the judge further pronounced himself satisfied that defendant

had entered into it willingly with full knowledge of the consequences. The judge

denied defendant's pro se motions for reconsideration as without basis and

determined his ineffective assistance claim was not ripe for review, see State v.

Preciose, 129 N.J. 451, 459-61 (1992).

      The State asked the court to sentence defendant in accordance with the

plea agreement. The victim spoke at sentencing. She claimed defendant made


1
  State v. Slater, 198 N.J. 145 (2009). The four Slater factors are: "(1) whether
the defendant has asserted a colorable claim of innocence; (2) the nature and
strength of defendant's reasons for withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal would result in unfair prejudice to the State
or unfair advantage to the accused." Id. at 157-58.
                                                                         A-0789-17T2
                                         7
her "perform unspeakable sexual acts with him and with the clients that he made

appointments with for [her.]" She claimed defendant kept her prisoner for nine

months, moving between states along the eastern seaboard every few days. She

ate only when he fed her, which he did not do sometimes for days at a time to

keep her at a weight he thought ideal, and became violent when she resisted him.

In addition to the mental anguish he caused her to endure, she also revealed she

contracted HIV during her months with defendant.

      The judge found aggravating factors two, the gravity and seriousness of

the harm inflicted on the victim; three, the risk defendant would commit another

offense; six, the extent of defendant's prior criminal record and the seriousness

of the offenses of which he was convicted; and nine, the need to deter, N.J.S.A.

2C:44-1(a)(2), (3), (6) and (9), and no mitigating factors. Noting the extent of

defendant's prior record, and having earlier noted he would have faced a

mandatory extended term if convicted at trial of the drug offense to which he

pleaded guilty, the judge sentenced defendant in accordance with his plea

agreement to an aggregate ten-year term, with five years of parole ineligibility.

      Defendant raises the following issues for our consideration:

            POINT I

            THE DEFENDANT'S RIGHT TO BE FREE FROM
            UNREASONABLE SEARCHES AND SEIZURES AS

                                                                         A-0789-17T2
                                        8
GUARANTEED BY THE FOURTH AMENDMENT
TO THE UNITED STATES CONSTITUTION AND
ART. I, PAR. 7 OF THE NEW JERSEY
CONSTITUTION WAS VIOLATED.

   A. The Defendant Was Arrested without Probable
      Cause.

   B. The State Failed to Prove that the Police Had
      Reasonable Suspicion to Detain the Defendant.

   C. The Warrantless Seizure, Ignoring the Law of
      Detention Warrants, Was Unreasonable.

   D. Even if the Police Had a Detention Warrant, the
      Manner in which this Detention Occurred —
      Pointing a Gun at an Unarmed Black Man —
      Was Unreasonable.

POINT II

THE DEFENDANT'S MOTION TO VACATE THE
PLEA AGREEMENT SHOULD BE GRANTED.

   A. The Plea Agreement Should Be Set Aside in the
      Interests of Justice.

   B. The Plea Agreement Should Be Set Aside
      Because It Was the Result of Ineffective
      Assistance of Counsel.

POINT III

THE SENTENCE IS EXCESSIVE: THE TRIAL
COURT   IMPROPERLY   BALANCED    THE
AGGRAVATING AND MITIGATING FACTORS.



                                                        A-0789-17T2
                         9
We find none of these arguments availing and confine our comments to the first

point. Defendant's arguments regarding his motion to withdraw his plea and that

the sentence imposed in accordance with the plea agreement is excessive lack

sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2).

      Turning to defendant's first point, our standard of review on a motion to

suppress is well established. State v. Gamble, 218 N.J. 412, 424-25 (2014). We

defer to the trial court's factual findings on the motion, unless they were "clearly

mistaken" or "so wide of the mark" that the interests of justice require appellate

intervention. State v. Elders, 192 N.J. 224, 245 (2007) (quotations omitted).

Our review of the trial court's determinations of reasonable suspicion and

probable cause, however, is de novo, Ornelas v. United States, 517 U.S. 690,

699 (1996), without deference to the trial court's interpretation of the law, State

v. Hubbard, 222 N.J. 249, 263 (2015).

      Applying that standard here, we find no fault in the trial judge's factual

findings or his application of the law to those facts. We have no doubt defendant

was seized within the meaning of the Fourth Amendment the moment the officer

drew his weapon and ordered defendant out of the vending area. See Kaupp v.

Texas, 538 U.S. 626, 629-30 (2003); United States v. Mendenhall, 446 U.S. 544,

554 (1980); State v. Crawley, 187 N.J. 440, 450 (2006). We are likewise


                                                                           A-0789-17T2
                                        10
satisfied the officer had a reasonable suspicion, grounded in specific and

articulable facts and his rational inferences, that defendant may have been the

suspect police were waiting for, that criminal activity was afoot, and that

defendant was armed and dangerous. See Terry v. Ohio, 392 U.S. 1, 9, 30

(1968).

      Defendant's argument that he was seized merely because he was a large

black man ignores the officer's credible testimony that defendant started down

the corridor to the room where the victim had arranged to meet him, abruptly

switched directions after looking at the officer's police radio, moved his hand

up as if to cover a jacket pocket as he passed and then stepped out of the officer's

sight into a closed area from which the officer heard rustling noises. See State

v. Privott, 203 N.J. 16, 30 (2010). Those facts distinguish this case from State

v. Shaw, 213 N.J. 398, 411, 422 (2012), in which the Supreme Court affirmed

our finding of an impermissible investigatory detention where "[t]he only

descriptive feature Shaw shared with the fugitive sought . . . was that he was a

black man," doing nothing to have aroused any suspicion he was engaged in

criminal activity.

      We also agree with the motion judge that the officer drawing his service

weapon and, under these circumstances, handcuffing defendant, did not convert


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                                        11
defendant's detention into a de facto arrest. See State v. Padilla, 321 N.J. Super.

96, 107-08 (App. Div. 1999), aff'd, 163 N.J. 3 (2000). Timing is important, and

the briefness of this detention, lasting at most a minute, and our inability to

conclude the officer used unreasonable force in executing it, convince us

defendant was not subject to a de facto arrest. See State v. Dickey, 152 N.J.

468, 479 (1998).

      Finally, we reject defendant's argument that even if the police had

"reasonable suspicion, the search and seizure was nevertheless illegal because

the police had ample time and opportunity to secure a detention warrant pursuant

to State v. Hall, 93 N.J. 552 (1983), but failed to do so." Woodbridge Police

were investigating defendant based on reports from the victim and her mother

that defendant was promoting prostitution and distributing narcotics. But the

investigative detention defendant complains of in this case arose out of

defendant's suspicious behavior when he encountered the officer in the hotel

where the victim was staying. "An officer does not need a warrant to make such

a stop if it is based on 'specific and articulable facts which, taken together with

rational inferences from those facts,' give rise to a reasonable suspicion of

criminal activity." State v. Rodriguez, 172 N.J. 117, 126-27 (2002) (quoting




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                                       12
Terry, 392 U.S. at 21). Because we are satisfied defendant's investigative

detention complied with Terry, no warrant was required.

     Affirmed.




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                                    13
