STATE OF NEW JERSEY v. ATDILON BAEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2473-11T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ATDILON BAEZ, a/k/a

ANDY BAEZ, ATDELON BAEZ,

KING BAEZ, ATDILION BAEZ,

ANDY ADTILION, JOSE TORO,

ATOLILON BAEZ, ATDILON BAEZE,

Defendant-Respondent.

_____________________________

January 30, 2014

Submitted January 7, 2014 Decided

 
Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 08-09-0763 and 08-09-0764.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Grace H. Park, Acting Union County Prosecutor,attorney forrespondent (Estrella Lopez, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Atdilon Baez appeals from a June 23, 2011 judgment of conviction, based on his guilty plea, for possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7. Defendant received an aggregate term of five years to be served without parole, and was awarded 1151 days of jail credit. He does not appeal from the sentence.

The appeal is solely from the denial of defendant's suppression motion. He raises the following point for our consideration:

THE MATTER MUST BE REMANDED FOR A REHEARING ON THE MOTION TO SUPPRESS BECAUSE LATE DISCOVERY, PROVIDED BY THE STATE TO THE DEFENSE AFTER THE COURT HAD DENIED THE MOTION, CALLS INTO QUESTION POLICE WITNESSES' CREDIBILITY WHICH UNDERPINNED THE COURT'S DECISION.

We find no merit in that argument, and we affirm the conviction.

I

We begin by summarizing the evidence from the suppression motion, which is set forth in greater detail in Judge Joseph Donohue's written statement of reasons.1 Knowing that a particular motel in Elizabeth was a high crime location, Police Lieutenant William McCue would routinely perform random computer checks on the license plate numbers of cars parked in the motel's parking lot. On the night of April 22, 2008, he performed random plate checks using the mobile data terminal in his patrol vehicle. The check he ran on a "Hummer" vehicle revealed that it was owned by defendant and that there were about ten outstanding warrants for his arrest. One warrant had a "caution" note, indicating that defendant was a Latin Kings gang member with prior arrests for aggravated assault, resisting arrest, and weapons offenses. After confirming the warrant with headquarters, McCue called for a SWAT team back-up. He also contacted the motel office and found out defendant's motel room number.

When the back-up team arrived, they knocked on the door and announced themselves. A woman told them that there was a large dog in the room, which she had to secure before letting them in.2 Shortly thereafter, she opened the door and, on being told the police were looking for Atdilon Baez, she pointed to defendant, who was standing in front of the bed. The police arrested defendant and the woman. While in the motel room, the police saw a handgun lying in plain sight on the bed, along with a partially unzipped makeup case with a plastic bag protruding from it. On shining a flashlight toward the bag, one of the officers saw a white powdery substance and he therefore seized the makeup case.

According to Officer Turner, before the police took defendant and the woman to the police station, defendant asked him to gather up their personal belongings from the motel room and put them in the defendant's vehicle for safekeeping. Turner saw a bullet and a knife in plain view in the car.

Judge Donohue found all of the police witnesses credible. He found no Fourth Amendment violation in the check of the license plate, and found the arrest was made pursuant to a valid arrest warrant. He also found that the brief protective sweep of the room was justified for the officers' protection, and he upheld the seizure of the handgun and the makeup case under the protective sweep and plain view exceptions to the search warrant requirement. The judge also credited the police testimony that defendant asked them to secure his belongings in his car and the police found the remaining contraband in plain view.

Thereafter, defendant filed a motion for permission to represent himself, which the court granted. The assigned Public Defender attorney remained on the case as standby or "advisory" counsel. Both sides filed discovery motions, which were addressed by Judge Robert Mega. On July 29, 2010, Judge Mega heard oral argument on a motion to dismiss the indictment based, in part, on defendant's contention that the State had only recently provided him with a document showing that the police made a computer inquiry "as to a stolen gun . . . on 4/22/08 at 2347 hours [11:47 p.m.]." Because the police had reported that they arrived at the motel to arrest defendant at 11:59 p.m., defendant's standby counsel argued that the new evidence supported his client's defense, which was that the police planted the handgun in the motel room. He argued that the State failed to produce further documentation concerning the time discrepancy, and only produced the initial document after the suppression motion was decided. The State contended that the additional records defendant requested had been destroyed in the ordinary course. The judge denied the motion to dismiss the indictment.

When defense counsel then pointed out that the timing was not only relevant to impeaching the officers at trial, but could have affected the suppression motion, Judge Mega suggested that defendant apply to Judge Donohue for reconsideration of the suppression motion. Defendant did not file such a motion, and the case was scheduled for trial.

At a hearing on January 6, 2011, the court noted the prosecution's concession that the additional records might actually exist, but were of a type kept by the State Police rather than the municipal police. The judge indicated that he would order the State Police to produce the records. However, at the end of the hearing, the parties also entered into plea negotiations.

On February 24, 2011, defendant pled guilty pursuant to a plea agreement that permitted him to reserve for appeal two issues. The first issue was the denial of his suppression motion and the second was the denial of his motion to dismiss the indictment for failure to provide discovery. At the plea hearing, the judge confirmed that defendant still had not received the information he sought from the State Police, but was pleading guilty anyway. The judge also asked defendant if he had discussed with counsel the possible motions that he could file if he decided not to accept the plea bargain. Defendant stated that he had. Defendant agreed to plead guilty, in return for which the State agreed to recommend a five-year term, drop numerous additional charges against him, and drop all charges against defendant's wife.

II

On this appeal, defendant contends that "a document provided by the State to the defense after the motion to suppress was denied undermines the credibility of the police witnesses" who testified at the hearing. He concedes that the document was provided "prior to July 29, 2010" when he appeared for the conference before Judge Mega. He argues that the evidence, that the police requested a check on a gun about twelve minutes before they entered the motel room, undermines the officers' testimony that they found a handgun during a search of the motel room.

In response, the State argues that we cannot consider the additional information, because it was not part of the record before Judge Donohue when he decided the suppression motion. See R. 2:5-4; State v. Sidoti, 120 N.J. Super. 208, 211 (App. Div. 1972). Moreover, defendant failed to file a motion with this court to supplement the record on appeal. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 452-53 (2007). We agree.

The State also contends that there could be an innocent explanation for the discrepancy, including a typographical error on the police report concerning the search of the motel room. More significantly, defendant was in possession of this information long before he entered his guilty plea, but despite Judge Mega's suggestion, defendant failed to file a motion with the trial court to re-open the suppression hearing. Consequently, the police had no opportunity to respond to this evidence in the context of a new suppression hearing. Again, we agree with the State's argument. We conclude that, in entering a guilty plea despite knowing about this evidence, defendant waived his right to file a motion to re-open the suppression hearing. Hence, we find no injustice in limiting this appeal to the record made before Judge Donohue. See Liberty Surplus, supra, 189 N.J. at 453.

Based on our review of the transcript of the suppression hearing, we find no basis to disturb Judge Donohue's findings of fact or his legal conclusions based on those findings. See State v. Elders, 192 N.J. 224, 243-44 (2007). Defendant's appellate arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 After this appeal was filed, the parties discovered that a portion of the transcript of the judge's oral opinion on the suppression motion had been lost. We remanded for reconstruction of the record, and after consulting with the attorneys, the judge issued a statement of proceedings in lieu of transcript setting forth his statement of reasons for denying the motion.

2 The woman was later identified as defendant's wife.