STATE OF NEW JERSEY v. GREGORY WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2447-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY WILLIAMS,

Defendant-Appellant.

_________________________________

March 21, 2012

Submitted March 7, 2012 - Decided

Before Judges Fuentes and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-03-0976.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

After his motion to suppress was denied, defendant Gregory Williams pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a).1 He was sentenced to a term of twenty-four years incarceration subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(d)(2). Williams appeals the denial of his motion to suppress and the extent of his sentence. We affirm.

I.

On the morning of November 9, 2004, Donald Stone, a Hi-Nella police officer, responded to the Country Farm convenience store in nearby Somerdale to investigate a reported robbery and (a later-determined fatal) stabbing. Officer Stone was advised that the culprit ran out of the store and was being actively followed by a civilian driving a red pickup truck. The police officer drove off in search of the suspect and shortly encountered the driver of the red pickup truck a few streets away parked in a residential neighborhood on Sunset Drive. The driver told Officer Stone that he observed the suspect, who just seconds before, ran into the backyard of a home on Sunset Drive.

Officer Stone and another police officer began "looking around behind the houses in that block" when "another call came over the radio where a person at 719 Sunset was reporting [that his] house was being broken into." The police officers immediately responded and raced through several backyards to reach 719 Sunset Drive. Officer Stone observed a broken pane of glass by the back door. He was also advised that the caller had locked himself in the bedroom, but the intruder was still in the house.

Several police officers immediately entered the dwelling and saw two men inside. With their guns drawn, the police ordered both individuals "to lay down on the ground [and] spread their hands out." Officer Stone testified to what happened next:

We wanted to get handcuffs on them as we had no idea who belonged there or what was happening.

At that point the second gentleman we were cuffing stopped us he didn't stop us but he said while we were cuffing him to leave the other guy alone. He was the person we were looking for.

. . . .

[He said,] [t]hat's my brother. Leave him alone. He didn't do anything. He still had a telephone next to him so we knew we had an idea he might be the person that had called and the telephone was still connected to [police] communications. He had never hung up the phone.

So we cuffed the person that we were talking to and we got him to stand up. He was still laying face down on the rug when we cuffed him. When he stood up we noticed that he had . . . blood spots all over the front of his shirt and pants.

In due course, the police identified the "second gentleman" as Williams, who was arrested and charged with several offenses. After telling the police that he had discarded a knife nearby, a search ensued, which resulted in the blood-stained weapon's discovery shortly thereafter. Further investigation revealed that the house Williams had broken into was owned by his mother, but Williams did not reside there. The other individual in the house was his brother, who was not involved with the Country Farm robbery and homicide.

The motion court denied Williams's motion to suppress, finding that "[t]he officers properly entered 719 Sunset Drive pursuant to the emergency aid exception to the warrant requirement." Citing our decisions in State v. Frankel, 341 N.J. Super. 594 (App. Div. 2001), aff'd 179 N.J. 586 (2004) and State v. Navarro, 310 N.J. Super. 104 (App. Div.), certif. denied, 156 N.J. 382 (1998), the court applied a three-factor test to determine whether the warrantless search was valid. Concluding that (1) "the police officers had an objectively reasonable basis to believe that they were responding to an emergency situation requiring their immediate assistance when they entered the yard and residence at 719 Sunset Drive"; (2) "the police officers' primary motivation for going into the backyard at 719 Sunset Drive and their subsequent entry into that home was to render emergency assistance, not to find and seize evidence"; and (3) "there was a nexus between the officer[s'] search and the perceived emergency," the court denied the motion. Following the subsequent indictment, plea arrangement, guilty plea, and sentencing, this appeal ensued.

II.

On appeal, Williams raises the following arguments for our consideration:

POINT I: THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS POLICE SEARCH AND SEIZURE OF THE DEFENDANT'S RESIDENCE.

A. RELIANCE ON THE COMMUNTY CARETAKING EXCEPTION BY THE PROSECUTOR AND THE TRIAL COURT IS MISPLACED AND ERRONEOUS.

B. ASSUMING ARGUENDO THAT THE POLICE ACTION IN PURSUING A ROBBERY SUSPECT AND INVESTIGATING A BURGLARY WAS "TOTALLY DIVORCED" FROM LAW ENFORCEMENT ACTIVITY, AN OBJECTIVELY REASONABLE POLICE OFFICER WOULD NOT HAVE ENTERED THE PREMISES FOR COMMUNITY CARETAKING PURPOSES.

C. THE INTRUSION INTO THE HOUSE CANNOT BE JUSTIFIED ON THE BASIS OF PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES, AS THAT ISSUE WAS NOT FIRST AND FULLY EXPLORED AND, IN FACT, WAS EXPRESSLY WAIVED AS JUSTIFICATION FOR THE WARRANTLESS ENTRY.

D. THE EVIDENCE COME AT [SIC] BY THE EXPLOITATION OF THE ILLEGALITY SHOULD BE SUPPRESSED.

POINT II: THE SENTENCE IS EXCESSIVE.

A. TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

In a pro se supplemental brief Williams argues the following:

POINT I: THE FAMILY COURT ERRED IN REFERRING THIS CASE TO THE COUNTY PROSECUTOR FOR THE INSTITUTION OF CRIMINAL PROCEEDINGS AGAINST THE DEFENDANT.

After reviewing the record, we are satisfied that the Law Division properly denied the motion to suppress. Furthermore, we conclude that Williams's sentence was imposed consistent with law and is not excessive.

A.

"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the motion court's decision as long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). A motion court's findings of fact may be disturbed only when "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Best, 403 N.J. Super. 428, 434 (App. Div. 2008) (quoting Elders, supra, 192 N.J. at 244)), aff'd, 201 N.J. 100 (2010).

Williams argues that the police lacked probable cause or other legal grounds to conduct a warrantless search of his mother's home, and their entry into the backyard and dwelling under either the emergency aid or community caretaking doctrine was improper. We disagree. On this record, the officers acted appropriately under the emergency aid doctrine by seeking to enter an area from where the putative victim of a burglary had called the police and was still on the telephone seeking protection from the intruder. Indubitably, the police had a legitimate purpose of ensuring that the caller and any other lawful occupants of the home were safe.

The emergency aid doctrine is derived from the commonsense understanding that exigent circumstances may require public safety officials, such as the police, firefighters, or paramedics, to enter a dwelling without a warrant for the purpose of protecting or preserving life, or preventing serious injury. The Fourth Amendment and Article 1, Paragraph 7 do not demand that public safety officials stand by in the face of an imminent danger and delay potential lifesaving measures while critical and precious time is expended obtaining a warrant. We examine the conduct of those officials in light of what was reasonable under the fast-breaking and potentially life-threatening circumstances that were faced at the time. . . . The emergency aid doctrine only requires that public safety officials possess an objectively reasonable basis to believe not certitude that there is a danger and need for prompt

action. That the perceived danger, in fact, may not have existed does not invalidate the reasonableness of the decision to act at the time.

[Frankel, supra, 179 N.J. at 598-99 (internal citations omitted).]

In Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), the United States Supreme Court held that an exception to the Fourth Amendment's warrant requirement existed when a police officer is engaged in "community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Id. at 441, 93 S. Ct. at 2528, 37 L. Ed. 2d at 715. The New Jersey Supreme Court has also recognized this exception, State v. Diloreto, 180 N.J. 264, 275 (2004), and applied it to residences. State v. Bogan, 200 N.J. 61, 74-75 (2009).2

We recognize the similarities between the emergency aid and community caretaking exceptions, however, they are doctrinally separate and distinct. Witczak, supra, 421 N.J. Super. at 192. "[T]he relevant question in community caretaking situations focuses not on the compelling need for immediate action or the time needed to secure a warrant, but instead on the objective reasonableness of the police action in executing their service function." Kaltner, supra, 420 N.J. Super. at 541; see also Bogan, supra, 200 N.J. at 80. When a search is justified under the community caretaking exception, "courts must balance the nature of the intrusion necessary to handle the perceived threat to the community caretaking concern, the seriousness of the underlying harm to be averted, and the relative importance of the community caretaking concern." Kaltner, supra, 420 N.J. Super. at 542.

We recognize that when the police were alerted to the burglary on Sunset Drive they were in hot pursuit of a suspect who had just committed a violent crime a few blocks away. Notwithstanding the possibility of a linkage between these two events, the motion court found that the police officers' motivation at 719 Sunset Drive was to protect the caller who was eluding an unwanted trespasser in his home. The police did not enter the yard and house to arrest the perpetrator of the Country Market crimes; rather, they were in the service of their more immediate second call, which was at that moment wholly independent of their investigation of the robbery.

B.

Williams further argues that his sentence was excessive ("[t]he defendant should have been sentenced to a term of ten years, and certainly nothing in excess of twenty years") because the sentencing court misapplied the aggravating and mitigating factors of N.J.S.A. 2C:44-1(a) and (b). We conclude that a NERA sentence of twenty-four years for first-degree aggravated manslaughter was properly imposed in accordance with our established sentencing jurisprudence.

The sentencing court applied aggravating factors three (risk of recidivism) and nine (need to deter). See N.J.S.A. 2C:44-1(a)(3) and (9). Noting that Williams had seven juvenile adjudications including a probationary term, the court went on to consider two reports from mental health professionals who opined that Williams suffered from "neurocognitive defects," as well as severe learning disabilities. After canvassing all of the mitigating factors, the court was firmly convinced that only a single mitigating factor applied mitigating factor four (substantial grounds tending to excuse the conduct), N.J.S.A. 2C:44-1(b)(4) and it was entitled "to little weight."

Williams claims that his mental health on the date of the homicide was compromised ("there were psychological things and psychiatric things going on"), and that it should have accordingly held greater influence in the sentencing calculus. Additionally, he argues that his character and attitude are such that he is unlikely to commit another crime (mitigating factor nine, N.J.S.A. 2C:44-1(b)(9)), he would be a particularly good candidate for probationary treatment (mitigating factor ten, N.J.S.A. 2C:44-1(b)(10)), his incarceration would entail excessive hardship due to his mental health impairment (mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11)), and he "cooperated with law enforcement when he admitted his involvement when apprehended" (mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12)).

Our review of the length of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). We "should 'assess the aggravating and mitigating factors to determine whether they were based upon competent credible evidence in the record[,]'" and "should not 'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). We must also "'determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case make the sentence clearly unreasonable so as to shock the judicial conscience.'" State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

We are convinced that the sentencing court qualitatively evaluated both the aggravating and mitigating factors. The court explained its reasons for accepting and rejecting the applicable components of N.J.S.A. 2C:44-1. We are unpersuaded that it is either necessary or appropriate for us to intervene and adjust this sentence, particularly where we determine that it does not shock the judicial conscience.

Lastly, Williams claims that he suffered an "enhanced sentence" through the application of aggravating factors three and nine in conjunction with the NERA. We find this argument sufficiently without merit to warrant further discussion beyond the recognition that the NERA was mandatory, see N.J.S.A. 2C:43-7.2(d)(2), and was not imposed as a result of impermissible judicial fact-finding. R. 2:11-3(e)(2).

Affirmed.3

1 At the time of the incident, Williams was sixteen years old. On January 28, 2005, on the State's motion, the Family Part waived jurisdiction over defendant and this matter was referred to the Law Division pursuant to Rule 5:22-2(c).

2 Notwithstanding Ray v. Township of Warren, 626 F.3d 170 (3d Cir. 2010), holding that the community caretaking exception to the warrant requirement does not apply to searches of residences, we continue to find the exception applicable to warrantless searches of residences "on a case-by-case, fact-sensitive basis." State v. Kaltner, 420 N.J. Super. 524, 539 (App. Div.), leave to appeal granted, 208 N.J. 333 (2011); see also State v. Witczak, 421 N.J. Super. 180, 195 (App. Div. 2011).

3 Williams's pro se argument that it was erroneous to transfer this case from the Family Part to the Law Division is meritless. R. 2:11-3(e)(2).