STATE OF NEW JERSEY v. LORENZO BARRENECHEA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6259-03T46259-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LORENZO BARRENECHEA,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 28, 2006 - Decided March 20, 2006

Before Judges Kestin and Lefelt.

On appeal from the Superior Court of

New Jersey, Law Division, Union

County, Indictment No. 02-04-0543.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jay Bernstein,

Designated Counsel, of counsel and

on the brief).

Appellant, Lorenzo Barrenechea,

submitted a pro se supplemental

brief.

Zulima V. Farber, Attorney General,

attorney for respondent (Natalie A.

Schmid Drummond, Deputy Attorney

General, of counsel and on the

brief).

PER CURIAM

Defendant Lorenzo Barrenechea is serving an extended term, aggregate sentence of thirty-five years imprisonment, with twelve years of parole ineligibility, for various drug and weapons crimes. On direct appeal, defendant, through counsel and supplemental pro se letter brief, claims Judge Dupuis erroneously denied his motion to suppress evidence, the prosecutor made improper statements in summation and at sentencing, and the trial judge erroneously imposed an excessive sentence and relied on improper factors to extend defendant's prison term. We affirm defendant's convictions but vacate the sentence and remand for resentencing.

In December 2001, Detective Mooney arrested defendant for possession with intent to distribute cocaine and possession of marijuana. The arrest warrant identified defendant's address as 209 Loomis Street, Elizabeth. At the time of the arrest, however, defendant identified himself as Martin Cruz, living at 158 Park Place. Mooney later learned defendant's true identity and that the car defendant had been driving was registered to a person living at 158 Park Place. Mooney also learned that defendant had outstanding arrest warrants for a parole violation, possession of drugs, and failure to appear in court. Although the parole violation warrant did not identify defendant's address, defendant's parole officer told Mooney that defendant's last known address was on Loomis Street.

About two weeks later, Mooney, accompanied by five additional officers, went to 158 Park Place to execute the arrest warrants. When they arrived, Mooney saw parked in the driveway the vehicle defendant had been driving when Mooney previously arrested him.

The officers knocked and defendant's girlfriend opened the door. The officers asked if she knew where defendant was and displayed his photograph. The girlfriend pointed over her shoulder into the house and the officers followed her to the second floor where they found defendant asleep in the front bedroom with the girlfriend's young child. The officers arrested defendant and instructed him to get dressed.

When one of the officers searched defendant's pants for weapons, he found approximately $1,000 cash in the pocket. And when the officers walked around the bed, they saw a large bag of cocaine, a scale, cup and a spoon with white powder residue, and smaller plastic bags, all on an open entertainment center. The officers seized the evidence and before departing requested the girlfriend's consent to search the bedroom by telling her they "wouldn't feel safe in letting her children back in the room without checking for drugs and weapons." Mooney read and explained the consent form to the girlfriend and advised her that she did not have to sign the form and that she had a right to refuse consent. After reviewing the form in English and Spanish, defendant's girlfriend signed and gave the officers permission to search the bedroom. In the course of this search, the officers found a loaded Glock semiautomatic, nine-millimeter weapon in a closet protruding underneath some linen on an upper shelf.

Defendant claimed his girlfriend was not involved and that none of the seized items belonged to her. During the search, however, Mooney also found a traffic summons for the girlfriend and upon contacting the police dispatcher found she had an outstanding traffic warrant for failing to appear in court. Mooney therefore arrested the girlfriend and transported her to headquarters along with defendant.

At the station, Mooney learned the dispatcher was mistaken and that the warrant for the girlfriend had been recalled. Accordingly, Mooney released the girlfriend. While being processed, defendant filled out an arrest card reporting 158 Park Place as his residence.

Upon these facts, defendant argues that his motion to suppress should have been granted by Judge DuPuis and challenges the evidence that was seized on several grounds. He asserts the officers illegally entered the residence, where he was not living, on an arrest warrant instead of a search warrant; the cocaine and drug paraphernalia should have been suppressed because they were neither his nor were they in plain view; and the gun should have been suppressed because the girlfriend's consent was improperly obtained.

When officers enter a dwelling to execute an arrest warrant without a search warrant, the officers must have an "objectively reasonable bases for believing that the person named in the warrant both resides in the dwelling and is within the dwelling at the time." State v. Miller, 342 N.J. Super. 474, 479 (App. Div. 2001). At trial the girlfriend claimed defendant did not live at 158 Park Place. Instead, he merely slept there three to four nights a week and kept clothes in her bedroom closet and dresser. According to defendant's girlfriend, he lived on Newman Street with his uncle. In addition, the girlfriend testified that she and her children shared the apartment with a person named Toni D'Allesandro and her two children and that D'Allesandro's boyfriend, Roberto Torres, would occasionally play video games in the her bedroom with defendant. Defendant claimed Torres was "a known criminal [who deals drugs] with a lengthy police record."

Despite this evidence, however, Judge Dupuis properly concluded that the officers had an objectively reasonable basis to believe defendant resided at 158 Park Place at the time the arrest warrant was executed. It was only approximately two weeks before that defendant told Mooney he was living at that address. The arrest warrant that identified defendant's address as Loomis Street was dated three months before defendant's conversation with Mooney. In addition, the car defendant had been driving was both registered to a person living at that address and parked in the driveway when the officers arrived to execute the warrant. Furthermore, the girlfriend acknowledged defendant's presence in the apartment when she pointed into the house after being shown defendant's picture.

Defendant further argues that the evidence seized in the bedroom should have been suppressed because the officers were not properly in the bedroom and the evidence was obstructed by other items and therefore not in plain view. Defendant also argues that the State did not prove that he had knowledge of or control over the weapon and drugs seized.

To satisfy the plain view exception to the search warrant requirement, the officers must be lawfully within the viewing area, the discovery of the evidence must be inadvertent, and the officers must have probable cause to associate the items with criminal activity. State v. Bruzzese, 94 N.J. 210, 235-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). At the motion-to-suppress hearing, Judge Dupuis found all three requirements for the application of this doctrine. Her findings are well supported by sufficient evidence in the record and consequently are binding on this court. See State v. Johnson, 42 N.J. 146, 162 (1964).

Defendant also argues there was insufficient evidence to prove constructive possession of the drugs and the weapon because defendant was not living in the apartment full time and other people had access to the drugs and weapon. A person has constructive possession of an object when, "although he lacks 'physical or manual control,' the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Spivey, 179 N.J. 229, 236-37 (2004).

A determination of constructive possession is fact sensitive, State v. Hurdle, 311 N.J. Super. 89, 96-97 (App. Div. 1998), and controlled by whether the totality of the circumstances permit an inference of constructive possession. State v. Brown, 80 N.J. 587, 593 (1979).

Here, defendant told Mooney he lived at 158 Park Place two weeks before the arrest and confirmed the address as his residence on the arrest card. Additionally, defendant was found sleeping in the bedroom where the drugs and weapon were seized. The officers found men's clothes in the closet and the girlfriend testified that defendant kept clothes at her house and no other men kept clothing there. The officers found $1001 in defendant's pants pocket. Moreover, when the officers found the drugs, defendant proclaimed that "[h]e got beat in New York." Additionally, when the gun was seized, defendant stated that he "couldn't take a gun charge." This evidence was sufficient for the jury to infer that defendant had knowledge, possession, and control over the evidence seized.

Even if defendant only slept in the house three or four nights a week, an inference could still be drawn that defendant maintained possession and control over the items in the bedroom where he was found sleeping. See State v. $36,560 in U.S. Currency, 289 N.J. Super. 237, 261 (App. Div. 1996), certif. denied, 147 N.J. 579 (1997). Moreover, the fact that other individuals had access to the apartment and were not charged with crimes does not undermine the sufficiency of the evidence supporting the jury's finding, as constructive possession can be shared by several persons. Brown, supra, 80 N.J. at 597.

Defendant also argues that because his girlfriend did not voluntarily consent to the search, the gun should have been suppressed. To justify a search on the basis of consent, the State bears the burden of proving that the consent was voluntary and that the consenting party understood his or her right to refuse consent. State v. Johnson, 68 N.J. 349, 353-54 (1975).

Here, the girlfriend did sign the consent form after she was explained its terms in both English and Spanish. The motion judge found that Mooney did not "rush [or] coerce [the girlfriend] in any way." Additionally, the motion judge noted that defendant offered no proof of threats to report the girlfriend to DYFS, and did not find it coercive for Mooney to say that, because defendant had previous offenses involving weapons and drugs, he "wouldn't feel safe letting [the girlfriend's] children back in the room without checking it." These findings are supported by substantial credible evidence in the record. Johnson, supra, 42 N.J. at 162.

Defendant argues that, in closing, the prosecutor "improperly insinuated" the defendant had admitted guilt and, at sentencing, the prosecutor stated defendant "is an admitted member of the Latin Kings," although that was not proven at trial. The prosecutor's closing arguments were "reasonably related to the scope of the evidence presented," and were not improper. See State v. Frost, 158 N.J. 76, 82 (1999). Defendant's statements around the time of his arrest about the gun and the drugs were proper subjects for argument by both the defense as well as the State.

Defendant argues the prosecutor improperly stated that defendant was an admitted member of the Latin Kings and went by the name King Devotion within that organization. However, the sentencing judge refused to consider this assertion and clarified that there was no proof offered to support the statement.

Finally, defendant claims the trial court erred in imposing sentence. Defendant argues: he did not qualify as a persistent offender and therefore should not have received an extended term; the trial court "employed presumptive sentencing" contrary to State v. Natale, 184 N.J. 458 (2005); the extended sentence exceeded the statutory maximum in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); and the trial court found an inappropriate aggravating factor and failed to consider mitigating factors.

Although the court did misstate the provision upon which it relied in assessing an extended term, review of the record reflects that the court applied, and properly imposed a mandatory extended term for repeat drug offenders under N.J.S.A. 2C:43-6f. The underlying conviction of second degree intent to distribute and defendant's prior conviction of third degree intent to distribute support the mandatory extended term. Thus, contrary to defendant's argument, the court did not use a juvenile conviction to justify the extended term.

To the extent defendant argues that the mandatory extended term exceeded the statutory maximum in violation of Blakely, the imposition of an extended term as a repeat drug offender under N.J.S.A. 2C:43-6f falls within the exception for consideration of defendant's prior record as an aggravating factor. State v. Abdullah, 184 N.J. 497, 504-05 (2005); State v. Vasquez, 374 N.J. Super. 252, 269 (App. Div. 2005).

In addition, the aggravating factors three, six, and nine, which were found by the sentencing judge, were all based exclusively on defendant's prior criminal record, and do not warrant a remand for resentencing under Natale, supra, 184 N.J. at 487. See State v. Apprendi, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000); Abdullah, supra, 184 N.J. at 506, n.2.

However, the judge also considered aggravating factor eleven, that imposition of a monetary penalty without a term of imprisonment "would be perceived by the defendant or others merely as a part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices." N.J.S.A. 2C:44-1a(11). This factor "is inapplicable unless the judge is balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502 (2005). Here, a prison term was mandatory and therefore, aggravating factor eleven was incorrectly considered.

Because it is unclear what sentence would have been imposed if the court had not considered this aggravating factor, we must vacate the sentence and remand for resentencing. Id. at 506. We do point out, however, that no error occurred when the judge concluded that the record contained no mitigating factors. Id. at 504-05.

 
Defendant's convictions are affirmed, but we vacate the sentence and remand the matter for resentencing in accordance with this decision and, of course, without considering any presumptive terms. Natale, supra, 184 N.J. at 495-96.

Defendant's attorney phrased the appeal points as follows:

Point I. The court erred in upholding the validity of the parole arrest warrant where (A) 158 Park Place was not the residence, domicile or home of the defendant. Defendant was a guest, not a resident at his girlfriend's apartment; and (B), where no exigent circumstances existed to enter 158 Park Place. The court violated the Fourth Amendment and its extension under New Jersey law. Therefore, all evidence must be suppressed due to the illegal entry and arrest.

Point II. The court erred in upholding the voluntary consent to search: signed under the threat of arrest and actual arrest of a third party resident, Ms. Alvarez. The court erred in forbidding Ms. Alvarez to testify, relying on police testimony only. A proper search warrant issued by a disinterested magistrate (Judge) was not obtained or requested, therefore all evidence must be suppressed due to the involuntary forced consent of Ms. Alvarez.

Point III. The court erred in not suppressing the firearm, (constructive possession) found in a closet in the common tv/bedroom of a multi tenant shared apartment. The court erred in not suppressing the cocaine found in a common room, on a shelf or entertainment center of a multi person apartment, occupied by two families, with full access to all areas by all tenants. The cds and firearm were not in plain view.

Point IV. The court erred in ordering extended term sentencing and parole ineligibility and violated the terms of principled sentencing.

Point V. The prosecutor's summation and sentencing argument exceeded the bound of propriety.

Point VI. A new sentencing hearing is mandated by the August 2, 2005 New Jersey Supreme Court ruling in State v. Natale, A-82/83; striking New Jersey's presumptive sentencing rules as unconstitutional under the Sixth Amendment.

Defendant in his pro se brief phrased his appeal points as follows:

Point I. The trial court erred in sentencing appellant as a persistent offender because one of the prior offenses relied upon by the judge in imposing the extended term, was committed when appellant was a juvenile.

Point II. The trial court incorrectly found and weighed the cost of doing business aggravating factor, and failed to consider mitigating factors supported by evidence in the record.

Point III. Appellant's extended sentence above the presumptive term based on judicial factfinding of aggravating factors violated his Sixth Amendment right to trial by jury.

Point IV. The warrantless search conducted in the premises of the 158 Park Place incident to appellant's arrest is invalid, and the seized evidence should have been suppressed.

Defendant also argued that his girlfriend was precluded from testifying at the suppression hearing. Judge Dupuis correctly noted, however, that defendant did not call his girlfriend to testify and defendant has not offered any evidence that the State prevented her appearance at the suppression hearing.

(continued)

(continued)

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A-6259-03T4

March 20, 2006