                                 NOT FOR PUBLICATION WITHOUT THE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-3157-16T2

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

TERIQ C. DAVIS, a/k/a
TARIQ C. DAVIS, TARIQ DAVIS,
TEIRIQ CROSBY DAVIS,
TERIG CROSBY DAVIS,
TERIO CROSBY DAVIS,
TERIO DAVIS, TERIQ C. DAVIS, SR.,
TERIQ CROSBY DAVIS,
TERIQ CROSBY DAVIS, SR.,
TERIQ DAVIS, and TERIQUE DAVIS,

           Defendant-Appellant.


                    Argued January 30, 2019 – Decided April 29, 2019

                    Before Judges Alvarez and Nugent.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 14-08-0720.

                    Stephen P. Hunter, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
             Public Defender, attorney; Stephen P. Hunter, of
             counsel and on the brief).

             Meredith L. Balo, Special Deputy Attorney
             General/Acting Assistant Prosecutor, argued the cause
             for respondent (Michael A. Monahan, Acting Union
             County Prosecutor, attorney; Meredith L. Balo, of
             counsel and on the brief).

PER CURIAM

      Tried by a jury, defendant Teriq C. Davis was convicted of second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and fourth-degree

unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3(f). The jury

acquitted defendant of second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a) and fourth-degree aggravated assault, N.J.S.A.

2C:12-1(b)(4). Defendant appeals, arguing that the trial judge erroneously

denied his motion to suppress, and, if the conviction stands, that his sentence is

excessive.    On January 27, 2017, the trial judge imposed seven years

imprisonment, subject to forty-two months of parole ineligibility, on the

unlawful possession of a weapon, and concurrent terms of eighteen months

incarceration on the possession of hollow point bullets and six months on the

disorderly persons charge of resisting arrest, which the judge decided as the trier

of fact. We affirm.



                                                                           A-3157-16T2
                                        2
      Hillside police officers responded to a call reporting a "domestic in

progress involving a weapon." The dispatch included the information that

during the course of "an altercation between a boyfriend and girlfriend, . . . the

male on scene had pointed a handgun at his girlfriend."

      Officer Joseph Vetter testified that upon arrival, he saw defendant walking

out the front door of the house holding a green reusable lunch bag in his left

hand. Defendant dropped the bag at the top of the landing as soon as he saw the

officers approach, and walked down some stairs. Vetter described the staircase

of this single-family home as "a small stairway leading up to the front door,

well-illuminated . . . just a small stairway, maybe five or six stairs up to the

landing with a small landing at the top." When police met defendant at the

sidewalk, he was ordered to raise his hands. Vetter walked into the home to

speak with the victim.

      Officer Daniel Wanat and a third officer, who did not testify at the

suppression hearing, conducted a pat down of defendant to search for weapons.

Meanwhile, the victim informed Vetter that defendant's handgun, which he

pointed at her during an argument, was in the green bag he had taken with him.

Vetter walked back outside, looked inside the bag defendant had dropped, and

saw a handgun. He estimated that defendant was only five or six steps away


                                                                          A-3157-16T2
                                        3
from the bag. Vetter said that at the time he opened the bag, defendant was

standing at the foot of the landing, and had not been handcuffed.

      Wanat testified at the suppression hearing that he saw defendant walk out

of the house and place a green bag he had been holding in his left hand "on the

top of the stoop as we were approaching." He estimated the distance between

the landing where the bag was located and defendant when arrested at maybe

four to five feet. Wanat did not remember if defendant walked all the way down

the stairs as the officers approached, but he did remember that defendant seemed

taller because he was standing on a step above them. When asked on cross-

examination "the approximate linear distance" between the edge of the landing

and the street, the officer said approximately twelve feet and then said he "really

[did not] know." Later on re-cross, Wanat said the distance between the green

bag and the bottom of the steps was approximately twelve or thirteen feet.

      When defendant testified at the suppression hearing, he denied holding

the green bag as he walked out of the house. He said the officers tackled him to

the ground, cuffed his wrists behind him, and then one officer sat on his back

while the other put his knee in his face and smashed it to the ground. Defendant

also said that two officers went inside the house and returned with the green bag.

He heard one officer tell the other that they had "hit the jackpot." Defendant


                                                                           A-3157-16T2
                                        4
could not see what they were referring to as he was placed in the back seat of

the police car.

        The judge denied the suppression motion because although the police had

probable cause to arrest and search incident to that arrest, defendant abandoned

the property when he threw it on the ground and walked away. He found the

police officers more credible than defendant, whom he found "not credible at

all." He reached those conclusions not only from the demeanor of the witnesses,

but from the internal consistency of their testimony. He observed that "[t]he

defendant would have this court believe that he innocently left the home and

was beset upon by police officers, [roughed] up and a gun was . . . attributed to

him."

                                       I.

        We review the factual findings made by a trial judge during a motion to

suppress deferentially, and so long as they are supported by sufficient credible

evidence, we will not disturb them. State v. Elders, 192 N.J. 224, 243 (2007).

When defending a warrantless search, the State bears the burden of establishing

by a preponderance of the credible evidence that it fits within one of the

exceptions to the warrant requirement. State v. Minitee, 210 N.J. 307, 318

(2012). One such exception is an officer's right to search a defendant's person


                                                                         A-3157-16T2
                                        5
without a warrant if there is probable cause to arrest. State v. Evans, 181 N.J.

Super. 455, 459 (App. Div. 1981). The purpose of a search incident to arrest is

to protect arresting officers from potential dangers, as well as to prevent

destruction or concealment of evidence. State v. Dangerfield, 171 N.J. 446, 461

(2002).

      We have previously held that a container in a suspect's possession at the

time of a lawful arrest may be searched under the search incident to arrest

exception, even if the suspect is no longer holding the container at the time o f

the search. State v. Oyenusi, 387 N.J. Super. 146, 155 (App. Div. 2006). Such

searches are lawful, so long as contemporaneous with the arrest. Ibid.

      Defendant argues that the search in this case was unlawful because of the

distance he claims, twelve feet, between him at the point of the arrest and the

green bag. We are satisfied based on our review of the record, however, that

although when pressed on cross-examination, Wanat agreed the distance could

have been as many as ten or twelve feet, he also said the bag was located on a

landing only four or five steps above the street level. That description, more

precise than an estimate of distance, placed the bag, which officers knew

contained a handgun, within defendant's reach.         Wanat's more concrete

description of the location of the bag, which did not include an estimate,


                                                                         A-3157-16T2
                                       6
matched Vetter's. Thus, it was reasonable for the officer to have searched the

bag, particularly in light of defendant's struggle when arrested, which the trial

judge found sufficient to warrant conviction of the disorderly persons offense of

resisting arrest. Relying on the judge's credibility findings, the search was

conducted incident to arrest and should be affirmed. See Oyenusi, 387 N.J.

Super. at 156-57.

                                       II.

      We briefly touch upon defendant's contention that he had not abandoned

the bag. Given the judge's factual finding that the officers' version of events

was accurate, we must assume that defendant was seen by the officers

deliberately discarding the bag and walking down the stoop.

      Defendant did not even claim that the bag was his—in fact, he denied

ownership at the suppression hearing. Therefore, a reasonable construction of

the circumstances is that he abandoned the bag, hoping to either not have been

seen or to deflect the officers' attention from the lunch bag in which the handgun

was hidden.

      Property is treated as abandoned when discarded. State v. Gibson, 318

N.J. Super. 1, 11 (App. Div. 1999) (quoting State v. Farinich, 179 N.J. Super. 1,

6 (App. Div. 1981)). If the State establishes the property was abandoned, the


                                                                          A-3157-16T2
                                        7
defendant has no right to challenge the search or seizure of it. State v. Johnson,

193 N.J. 528, 548 (2008).

      The judge concluded, based on the officers' credible testimony, that

defendant casually walked out of the house, dropped the bag, and continued

down the steps as if he did not see anyone. It was not until the officers

approached him and Vetter went up the steps, that defendant began to struggle.

Therefore, on the theory of abandonment, the officers had an independent basis

to search.

                                       III.

      Finally, defendant challenges the court's sentence as excessive.         We

review sentencing decisions deferentially. State v. Fuentes, 217 N.J. 57, 70

(2014). We do not substitute our judgment for that of the sentencing court. State

v. O'Donnell, 117 N.J. 210, 215 (1989). In this case, the trial court engaged in

an expansive analysis of the aggravating factors. The judge found aggravating

factors three, six, and nine, given defendant's long history with the criminal

justice system dating back some twenty years. See N.J.S.A. 2C:44-1(a)(3), (6),

and (9). His criminal history included Virginia as well as New Jersey.

      The judge found no mitigating factors. Defendant's argument on appeal

that mitigating factors one, two, and seven should have been found by the trial


                                                                          A-3157-16T2
                                        8
court lacks sufficient merit to warrant discussion in a written opinion. See R.

2:11-3(e)(2); N.J.S.A. 2C:44-1(b)(1), (2), and (7).    Possession of a loaded

handgun filled with hollow point bullets clearly poses a threat of serious harm

and has great potential to harm others. Defendant had not "led a law-abiding

life for a substantial period of time before the commission of the present

offense." N.J.S.A. 2C:44-1(b)(7).

      Affirmed.




                                                                       A-3157-16T2
                                      9
