STATE OF NEW JERSEY v. SHAWN T. McGRAW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2877-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN T. McGRAW,

Defendant-Appellant.

___________________________________________________________

Submitted April 5, 2011 Decided May 27, 2011

Before Judges Graves and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No.

08-12-03019.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William J. Sweeney, Designated

Counsel, on the brief).

Theodore F. L. Housel, Atlantic County

Prosecutor, attorney for respondent (Courtney

M. Cittadini, Assistant County Prosecutor,

of counsel and on the brief).

PER CURIAM

An Atlantic County grand jury indicted defendant Shawn T. McGraw for third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count two), second-degree conspiracy to possess cocaine with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(b)(2) (count three); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four); and second-degree possession of cocaine with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count five).

After defendant's motion to suppress the cocaine seized from his apartment was denied, he entered a negotiated plea to count two on June 1, 2009. In accordance with the plea agreement, defendant was sentenced to a seven-year prison term with three years of parole ineligibility.

On appeal, defendant raises the following points:

POINT I

THE AMENDED SEARCH WARRANT WAS DEFECTIVE FOR LACK OF A DATE OR TIME OF ISSUANCE WHEN AMENDED BY TELEPHONE AND FAX.

POINT II

THE SENTENCE IMPOSED BY THE COURT WAS MANIFESTLY EXCESSIVE.

After reviewing the record in light of the applicable legal standards, we affirm the order denying defendant's motion to suppress and his sentence.

The following facts were adduced during the suppression hearing. On September 18, 2008, Detective Jamie Moore of the Atlantic City Police Department personally appeared before a Superior Court judge and obtained a warrant to search defendant's apartment for cocaine and other controlled dangerous substances. The warrant, which was signed by the judge at 1:50 p.m., had a checkmark next to the following method of execution: "By knocking and announcing the identity and purpose of law enforcement officers."

Moore testified that the original search warrant was "verbally approved as a no-knock." However, on September 26, 2008, when she realized that the warrant required the police to "knock and announce," she telephoned the judge and he said: "'You're absolutely right. It does fit the parameters for a no-knock. I will amend it.'" The judge then crossed out the knock-and-announce requirement on the original warrant and wrote: "'No knock' authorized on 9/18/08. The court inadvertently checked the wrong box." The judge also initialed the change and wrote the date, "9/26/2008", next to his initials.

Although the actual time of the amendment was not specified on the face of the search warrant, Moore testified that the amended warrant was facsimiled to her at 9:40 a.m. that same day, September 26, 2008. Moore also testified that the search of defendant's apartment occurred, without knocking, approximately an hour-and-a-half later.

Defendant did not testify or present any evidence at the suppression hearing. However, his attorney argued that the warrant should be invalidated because the time of issuance is an indispensable element of a telephonic search warrant.1 See R. 3:5-3(b) (listing the requirements for the issuance of a search warrant when an applicant is not physically present, including "the exact time of issuance of the duplicate original warrant"). The motion court rejected this argument and found that the deletion of the knock-and-announce requirement was an "amendment ab initio" and not a telephonic application for a new search warrant. Moreover, the court credited Moore's testimony and concluded that the search warrant was modified prior to its execution.

Once issued, "[a] search warrant is presumed to be valid, and defendant bears the burden of demonstrating that the warrant was issued without probable cause or that the search was otherwise unreasonable." State v. Evers, 175 N.J. 355, 381 (2003). "[O]ur courts have been reluctant to invalidate search warrants based on confusion over jurisdiction or other issues that do not implicate probable cause or the neutrality of the issuing judge." State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201 N.J. 229 (2010). In addition, absent "bad faith, no search or seizure made with a search warrant shall be deemed unlawful because of technical insufficiencies or irregularities in the warrant or in the papers or proceedings to obtain it, or in its execution." Rule 3:5-7(g).

In the present matter, there is no evidence that Moore procured the search warrant or the modification in bad faith; that the police improperly executed the search of defendant's apartment; or that police violated defendant's privacy rights. Thus, we agree with the motion judge that the failure to indicate the time of the amendment did not vitiate the validity of the warrant because it was, at most, a minor procedural irregularity. See State v. Gioe, 401 N.J. Super. 331, 344 (App. Div. 2008) (upholding the validity of a search warrant despite "procedural irregularities"), certif. denied, 199 N.J. 129 (2009); see also State v. Nguyen, ___ N.J. Super. ___, ___ (2011) (slip op. at 19) (noting that "[t]he exclusion of evidence obtained in violation of a statute is justifiable only if the violation affects privacy rights that the Fourth Amendment and its New Jersey counterpart were designed to protect").

Defendant also argues that his sentence is excessive. Our review of sentencing decisions is "relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J.283, 297 (2010). In this case, defendant had an extensive history of prior drug convictions and was subject to a mandatory extended term of imprisonment under N.J.S.A.2C:43-6(f). Nevertheless, defendant was sentenced pursuant to the plea agreement, which was negotiated in accordance with N.J.S.A.2C:35-12 and the Brimage2guidelines. In view of these circumstances, we find no abuse of discretion.

Affirmed.

1 Defendant did not argue that the search warrant was deficient for any other reasons, such as a lack of probable cause or an invalid no-knock provision. See State v. Johnson, 168 N.J. 608, 619 (2001) (outlining the three requirements to justify the issuance of a no knock warrant).

2 State v. Brimage, 153 N.J. 1 (1998).