STATE OF NEW JERSEY v. PETER ERIC BARNES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5195-07T45195-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PETER ERIC BARNES,

Defendant-Appellant.

___________________________________

 

Submitted August 17, 2010 - Decided

Before Judges Sabatino and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-03-0360 and Accusation No.07-10-0785.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Robert E. Bonpietro, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

In this narcotics case, defendant Peter Eric Barnes appeals the trial court's denial of his pretrial motion to suppress certain incriminating evidence obtained by law enforcement authorities in Hudson County. The evidence in question was obtained pursuant to orders issued by the Superior Court, authorizing the interception of telephone calls to and from defendant's cell phone. Defendant argues that the detective's affidavit provided in support of the intercept orders was insufficient, and that the trial court should have granted his motion to suppress. We disagree, and affirm.

This matter arises generally out of an investigation by law enforcement into drug trafficking in and around Jersey City by persons associated with a street gang. As part of that investigation, the police obtained authorization from the court to intercept communications involving the phones of several other gang members. In several of those monitored calls, defendant was identified as a supplier of controlled dangerous substances ("CDS"). Defendant also had a prior conviction of possession of CDS with the intent to distribute it.

Based on these and other investigative findings, the State presented to the Superior Court a detailed, twenty-four paragraph affidavit from Detective Kelly Chesler, in support of an ex parte application under the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -34, for a court order authorizing, among other things, a wiretap of defendant's cell phone. The court found that Detective Chesler's affidavit sufficiently established probable cause under the statute to justify the requested wiretap. Subsequently, the police tapped defendant's cell phone based on that authorization, and obtained further incriminating proof.

Defendant was thereafter indicted and charged with numerous serious drug-related offenses. Following his indictment, defendant moved to suppress the fruits of the wiretap of his cell phone. He argued that Detective Chesler's affidavit was skewed, inadequate to establish probable cause, and omitted material information in violation of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). After hearing lengthy arguments, the trial court denied the motion to suppress, concluding that there was "sufficient probable cause, a legitimate basis established for the [wiretap judge's] finding of necessity [for the wiretap instead of other investigative methods], and no misrepresentations [by the affiant, Detective Chesler] of any kind."

After the suppression ruling by the trial court, defendant and his counsel negotiated a plea agreement with the prosecutor. Pursuant to that agreement, defendant pled guilty to the indicted charge of second-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5, as well as the sole count of the accusation, first-degree possession of heroin with the intent to distribute it, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1). As a condition of the plea, the State agreed to dismiss the remaining counts of the indictment and to recommend a maximum aggregate sentence of sixteen years with eight years of parole ineligibility. Defendant also preserved his right to appeal the court's denial of his suppression motion.

The court sentenced defendant to an aggregate custodial term of fourteen years with seven years of parole ineligibility, a disposition slightly less severe than the maximum allowed under the plea agreement. Various fines and penalties were also imposed.

On appeal, defendant argues that the order authorizing the wiretap of his cell phone was not predicated upon proper showings of probable cause and necessity. He further contends that the order was based on misleading and incomplete information in Detective Chesler's affidavit and that, at the very least, he was entitled to an evidentiary hearing under Franks, supra, on his motion to suppress.

Having fully considered defendant's arguments, we affirm the determinations of the trial court, substantially for the cogent reasons set forth in Judge Francis B. Shultz's letter opinion dated April 27, 2007. Judge Shultz correctly applied the terms of the wiretap statute and the pertinent case law. The judge's conclusions regarding probable cause, necessity, and the absence of material misstatements or omissions are amply supported by the totality of circumstances derived from the record. There was no need for an evidentiary hearing.

 
Affirmed.

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A-5195-07T4

August 24, 2010