STATE OF NEW JERSEY v. ESTEBAN GONZALEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ESTEBAN GONZALEZ, a/k/a

ESTEBON O. GONZALEZ, a/k/a

ROBERTO CRUZ, a/k/a STEVEN

JIMENEZ,

Defendant-Appellant.

______________________________

ArguedJuly 9, 2013 Decided October30, 2013

Before Judges Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 09-08-1412 and 10-01-0084.

Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Turner, of counsel and on the brief).

Kenneth A. Burden, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Burden, of counsel and on the brief).

PER CURIAM

After the court denied his suppression motion, defendant entered a plea of guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. The State dismissed an indictment that charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1), or -3a(2); first degree felony murder, N.J.S.A. 2C:11-3a(3); first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree certain person not to possess a weapon, N.J.S.A. 2C:39-7a. As part of the plea agreement, defendant also pleaded to second-degree robbery as charged in a different indictment.

The court sentenced defendant to a seventeen-year term on the manslaughter conviction, concurrent with a ten-year term on the robbery conviction; each with an eighty-five percent period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In so doing, the court rejected the State's argument, allowed under the plea agreement, for a twenty-year term on the manslaughter count. The court also rejected defendant's arguments for a fifteen-year term on the manslaughter count, as well as a five-year term on the robbery conviction.

Defendant now appeals from the denial of his motion to suppress the fruits of a consent search of a plastic bag that defendant left in a hamper in the home of his daughter's mother, Evelyn Goyanes. The trial court rejected defendant's argument that Goyanes did not voluntarily give her consent. Defendant now abandons the voluntariness issues and argues before us that Goyanes lacked the authority to consent to a search of defendant's property. He also argues that his sentence was excessive.

We affirm.

I.

We discern the following facts from the record of the suppression hearing at which Hudson County Prosecutor's Office Detective Jose Diaz, Goyanes, and Brenda Ramos, a friend of Goyanes, testified. Diaz was assigned to investigate the homicide of Manuel Reyes on May 6, 2009. Diaz learned that defendant was the last person seen with the victim. Diaz also knew that Goyanes, a long-time acquaintance, had also been defendant's girlfriend, they had a five-year-old daughter together, and they had lived together for over six years. When Diaz initially questioned Goyanes about defendant's whereabouts, she told him that she "threw him out of the apartment" because of his drug abuse, and she had not seen him.

Defendant was arrested in New York City on May 7, 2009, and disclosed that he did visit Goyanes's apartment the night of the homicide. Diaz and other officers returned to her apartment to question her. Diaz testified that during a private conversation between Diaz and Goyanes in her bedroom, Goyanes admitted that defendant visited the apartment the previous night. She explained that he took his shoes off in the hallway; entered a bedroom to kiss his daughter; retrieved his tattoo machine after Goyanes told him where it was; changed into new clothes; and took other clothes with him in two bags.

Diaz testified that he asked her to "look around" to see if defendant had left anything during his visit and let him know if she found anything. He stated, "She went into the hamper and waded through and she found a yellow bag and pointed this to me . . . ." Diaz directed her not to move or open it. After conferring with an assistant prosecutor, Diaz sought Goyanes's consent to search the bag. She complied, executing a consent to search form in her apartment five minutes after discovering the bag. Diaz then seized and searched the bag from the hamper, finding a pair of bloody sneakers which was later matched to Reyes, the homicide victim.

Goyanes disputed Diaz's version of events as it pertained to the voluntariness of her consent. She asserted that she did not voluntarily consent to the search; Diaz threatened her with arrest; she agreed to consent only if the police had a warrant; and she only signed the form after the search was completed and she was transported to the police station.

However, Goyanes confirmed and amplified other facts presented by Diaz. She testified she and defendant had been together for eight years, but lived together for only one, as he was incarcerated most of the time. She explained in a recorded statement to police after the search that defendant was an addict and she had "kicked him out" the previous month. He had keys to the "downstairs" apparently referring to the entrance door of the building but not the "upstairs" apparently referring to the apartment door. He also had removed most of his clothes when he was ejected. Nonetheless, Goyanes testified that defendant returned "periodically" to shower and change clothes while she was at work. Goyanes stated that defendant's mother, along with two children, also lived in the apartment.

The night of the homicide, Goyanes testified, defendant changed his clothes in her bedroom while she waited in her daughters' bedroom. The hamper she searched was located in her bedroom. Goyanes referred to it as "my hamper" in her recorded statement. Goyanes's friend and neighbor testified that she overheard Goyanes tell police that if defendant left any clothes in the apartment, "[I]t should be in the hamper. All my dirty laundry is there."

Judge Paul M. DePascale credited Diaz's version of events, and found that Goyanes voluntarily consented to the search. He rejected Goyanes's testimony as incredible, noting that she lied to police when they initially interviewed her, and her version of events suffered from other inconsistencies. The judge also rejected defendant's argument that Goyanes's consent was not knowing, because the police did not advise her of her right to refuse Diaz's request that she look around. The judge stated, "Goyanes was asked to look[] around her own apartment to see if the defendant had left anything the previous evening. She had every right to search or refuse to search on her own. . . . One does not become an agent of law enforcement by simpl[y] cooperati[ng] during an investigation . . . ."

Defendant presents the following issues for our consideration:

POINT I

THE WARRANTLESS SEARCH OF THE BAG CONTAINING THEDEFENDANT'S CLOTHING WAS UNCONSTITUTIONAL AS THE DEFENDANT'S GIRLFRIEND COULD NOT CONSENT TO SEARCH A CLOSED BAG THAT WAS ADMITTEDLY THE PROPERTY OF THE DEFENDANT.

POINT II

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

II.

A.

At the outset, we recognize that defendant did not argue that Goyanes lacked authority to consent before the trial court. He argued that Goyanes did not voluntarily or knowingly consent. Nonetheless, we choose to address the issue, rather than deem it waived. Cf. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973) (appellate courts generally will decline to consider issues not properly presented to the trial court). We do so, notwithstanding the absence of the trial court's explicit findings on the subject, because the relevant facts are undisputed. Consequently, the issue is one of law over which we exercise de novo review. See State v. Mann, 203 N.J. 328, 337 (2010) (stating, regarding review of a motion to suppress, "a reviewing court owes no deference to the trial court in deciding matters of law") (citation omitted); State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999) (stating we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress).

Defendant does not challenge Goyanes's authority to consent to a search of the hamper itself. Instead, he challenges Goyanes's authority to consent to the search of the closed plastic bag found in her hamper.

We are unpersuaded. The evidence presented establishes that Goyanes possessed common authority over the plastic bag. A third party other than a defendant may consent to the search of property over which he or she possesses common authority. United States v. Matlock, 415 U.S. 164, 169-72, 94 S. Ct. 988, 992-93, 39 L. Ed. 2d 242, 248-50 (1974) (stating that prosecution may sustain consent search by showing "permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected"); see also State v. Douglas, 204 N.J. Super. 265, 276 (App. Div.) ("A valid consent may be obtained from one other than the accused . . . so long as the consenting third party has the authority to bind the accused."), certif. denied, 102 N.J. 378 (1985).

Common authority may be implied by the circumstances, such as:

mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his [or her] own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

[Matlock, supra, 415 U.S. at 171 n.7, 94 S. Ct. at 993, 39 L. Ed. 2d at 250.]

See also Douglas, supra, 204 N.J. Super. at 277-78 (quoting 2 Wayne R. LaFave, Search and Seizure 698 (1978)) (identifying two grounds for finding common authority to grant consent: (1) "the consenting party could permit the search in his own right" and (2) "the defendant had assumed the risk that a co-occupant might permit a search." (internal quotation marks omitted)).

Defendant did not leave the bag in a place where he manifested an intention that the bag would remain undisturbed. Goyanes testified that defendant took most of his clothes when he was ejected. Presumably, some were left in a drawer or closet. However, defendant did not leave the bag in such a place. Instead, defendant left the bag in Goyanes's bedroom, in her hamper, where she kept her own dirty laundry, which, we infer, she periodically removed in order to clean. By leaving the items in Goyanes's hamper, defendant authorized Goyanes to remove them.

Also, defendant no longer resided in the apartment. He lacked keys. Although he was permitted periodically to enter to change his clothes, he had no right to enter. He could not objectively have expected that the bag would remain undisturbed. Rather, the clear implication of defendant's actions is that he assumed the risk that Goyanes would find the bag, open it, and launder the items inside. (Alternatively, he might have hoped that Goyanes would discover the items and destroy them.)

However, no fair and objective view of the evidence supports the conclusion that defendant reasonably expected the bag to remain closed and undisturbed by Goyanes. "[A] protected expectation of privacy may exist where a defendant has taken some special steps to protect his personal [e]ffects from the scrutiny of others, but does not unquestionably exist where the co-occupant has ready access to the place searched." Douglas, supra, 204 N.J. Super. at 278 (citations omitted).

We rejected a claim similar to defendant's in State v. Thomas, 224 N.J. Super. 221 (App. Div. 1988). The defendant's brother-in-law consented to the search of his apartment, where the defendant had resided until a month earlier, leaving some clothes behind, but not retaining a key. Id. at 225. The day after a homicide, Higgins allowed defendant to briefly return to the apartment to change clothes. Before departing, the defendant left a plastic garbage bag next to a couch in the living room. Ibid. In the course of the consent search, the police searched the bag, which contained blood-saturated clothes, a knife, and other evidence incriminating defendant.

We affirmed the trial court's order denying the defendant's suppression motion, holding that Higgins had authority to consent to the search of his apartment, including the plastic bag that defendant left. We stated

Our review of the record made at the hearing on the motion to suppress convinces us that the trial judge correctly ruled that Higgins voluntarily consented to a search of his apartment and the objects contained therein, including the plastic garbage bag left in the living room by defendant. While the depositing of such an article in the living room of another without comment probably falls short of abandonment (State v. Farinich, 179 N.J. Super. 1, 8 (App. Div. 1981), aff'd per curiam 89 N.J. 378 (1982)), Higgins's authority to permit a search of the contents of his own apartment is indisputable. State v. Miller, 159 N.J. Super. 552, 557-[5]9 (App. Div. []), certif. den[ied], 78 N.J. 329 (1978). Moreover, it is difficult to conceive that defendant had reason to believe that the contents of this plastic bag, left by him without comment in the living room of another, would remain inviolate. No special steps were taken by defendant to secure this bag and its contents from the scrutiny of others. He had no reasonable expectation of privacy as to the bag's contents. State v. Douglas, 204 N.J. Super. 265, 277-[8]0 (App. Div. []), certif. den[ied], 102 N.J. 378 (1985).

[Id. at 229.]

We likewise find it difficult to conceive that defendant could reasonably believe that the bag left in his ex-girlfriend's hamper would remain inviolate, free from another's scrutiny.

Finally, defendant misplaces reliance on State v. Suazo, 133 N.J. 315, 32 (1993), where the Court held that an automobile driver's apparent authority to consent to a search of his car did not extend to passengers' personal belongings. In Suazo, the passenger claimed ownership over the bag, rendering unreasonable the police's reliance on the driver's consent. Id. at 319. By contrast, in State v. Maristany, 133 N.J. 299, 307-08 (1993), the Court sustained a search of a bag in a vehicle where the passenger who owned the bag was not nearby, and the driver appeared to have control over the bag. Here, the evidence demonstrated that Goyanes exercised control over her own hamper and items placed inside.

Nor does State v. Coyle, 119 N.J. 194, 217-18 (1990), upon which defendant relies, compel a different result. In Coyle, the Court reversed an order denying suppression, but remanded for a further hearing on the issue of a landlord's authority to consent. The Court held that a landlord generally does not have authority to consent to a search of a tenant's premises, but the nature of the informal relationship between the landlord and defendant in Coyle required further fact-finding, to determine whether the landlord's "access to or use of or control over the premises exceeded that of most landlords." Id. at 218. Here, Goyanes was not a landlord, consenting to the search of a tenant's space. She was a resident, consenting to the search of items left in her own space.

In sum, we conclude that Goyanes had authority to consent to the seizure and search of the plastic bag left in her clothes hamper.

B.

Defendant's challenge to his sentence lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say that we find no error in the court's exercise of its sentencing authority. The court sentenced defendant to a term three years shorter than that permitted under the plea agreement. Defendant had five prior upper court convictions, including State prison terms.

We are satisfied that the judge's findings regarding aggravating and mitigating factors were based upon competent and credible evidence in the record, that the judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, and that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. Pierce, 188 N.J. 155, 169 (2006); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).