STATE OF NEW JERSEY v. ANDREW T. MILLER

NOT FOR PUBLICATION WITHOUT THE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.

ANDREW T. MILLER,

Defendant-Appellant.

____________________________________________

October 1, 2014

Submitted September 3, 2014 Decided

Before Judges Messano and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-01-0108.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence seized without a search warrant, defendant Andrew T. Miller pled guilty to four charges contained in three separate indictments returned by the Atlantic County grand jury. In Indictment No. 12-01-0108, defendant pled guilty to two counts of second-degree aggravated assault against different victims, N.J.S.A. 2C:12-1b(1); in Indictment No. 12-01-0082, defendant pled guilty to second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b; and in Indictment No. 12-01-0016, defendant pled guilty to the lesser-included charge of second-degree robbery, N.J.S.A. 2C:15-1. Pursuant to the plea agreement, the State agreed to dismiss the remaining charges in the three indictments, and to recommend consecutive seven-year terms of imprisonment, with 85% periods of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, on the two aggravated assaults, and concurrent sentences on the remaining charges.

The judge sentenced defendant in accordance to the plea agreement. This appeal followed.

Defendant raises the following points for our consideration

POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THERE DID NOT EXIST "EXIGENT CIRCUMSTANCES" TO SUPPORT THE WARRANTLESS SEARCH OF THE BED MATTRESSES, AND BECAUSE THE POLICE DID NOT ENGAGE IN A VALID "PROTECTIVE SWEEP" OF THE HOTEL ROOM.

POINT II THE AGGREGATE [FOURTEEN] YEAR BASE CUSTODIAL SENTENCE WAS MANIFESTLY EXCESSIVE BECAUSE IMPOSING CONSECUTIVE [SEVEN] YEAR BASE TERMS ON DEFENDANT'S PLEAS TO AGGRAVATED ASSAULT ON COUNTS FOUR AND FIVE OF INDICTMENT NO. 12-01-0108 REPRESENTED AN ABUSE OF JUDICIAL SENTENCING DISCRETION

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

Atlantic City Detective Michael Shomo was the State's sole witness at the evidentiary hearing held on defendant's motion to suppress before Judge Bernard E. DeLury, Jr. Shomo testified that he was aware of an ongoing investigation by the Atlantic City Police Department's Shooting Response Team regarding a shooting that occurred on July 5, 2011, near one of the casinos. Two people were struck by gunfire during the incident. Shomo also knew that defendant was a suspect in the shootings.1

On October 6, Shomo received a call from another officer that defendant had been seen at the Taj Mahal casino. He responded there and met with other officers who had reviewed video surveillance footage showing that defendant, two other males and a female had been seen going in and out of room 2632. The room was believed to have been rented the previous evening by defendant's sister. The officers devised a plan to apprehend defendant and proceeded to the hallway of the twenty-sixth floor.

The officers did not "shut down" the floor, and Shomo testified that people were coming and going "as they pleased." As he stationed himself by the service elevator to provide another means of egress for the officers, Shomo heard "loud screaming" coming from the area near room 2632. He saw defendant running down the hall toward him with two State Troopers in pursuit. Shomo drew his weapon and ordered defendant to stop, which he did by diving to the ground. Other officers placed defendant in custody.

Shomo knew that defendant had told other officers there was a gun in the room. Shomo and others ran to the door of the room, which was closed. He heard movement within in the room and banged on the door while ordering everyone to come out. First, a female exited; Shomo could see another male in the room, who also exited. Both were placed into custody.

Shomo entered room 2632 along with three other officers. They "cleared the bathroom" and the closets, and Shomo lifted the mattresses on both beds, discovering a .357 Magnum revolver under one of them. Shomo did not seize the weapon until it was photographed, at which point he removed the ammunition from the gun and "took possession" of it.

Shomo testified that when he approached the room, he was not certain but he "believed that there were . . . other occupants in there." On cross-examination, Shomo acknowledged that he was looking for other people when he lifted the mattresses.

The State argued Shomo's actions were justified given the exigent circumstances, and that the gun was found during a valid "protective sweep" of the room. Judge DeLury found Shomo was "highly credible," and, concluded "public emergency" existed. He noted that defendant was a fugitive, the subject of active warrants charging him with the earlier shooting. The judge also found that when apprehended, defendant "admitted . . . there was a weapon left behind in the hotel room."

Judge DeLury concluded the officers reasonably believed that other "armed individuals could still be located in the hotel room." The judge concluded the officers acted reasonably under the "totality of the circumstances." He also determined that Shomo and the officers conducted a valid "protective sweep" of the hotel room. He denied defendant's motion.

Before us, defendant reiterates the arguments made before Judge DeLury. He contends that police had secured the room, i.e., saw no other occupants or weapons, before Shomo lifted the beds' mattresses. Defendant contends this "second search" was not justified "by the exigent circumstances that validated the first search." We disagree.

We begin by noting that "[a]ppellate courts reviewing a grant or denial of a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). "Deference to these factual findings is required because those findings 'are substantially influenced by [an] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 424-25 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

The police acted reasonably in entering the hotel room, given the exigency of the situation and the obvious threat posed to their safety and that of the public at large. See, e.g., State v. Johnson, 193 N.J. 528, 552-53 (2008) (listing factors "to be considered" in determining whether exigent circumstances exist, including "the urgency of the situation, the time it will take to secure a warrant, the seriousness of the crime under investigation, and the threat that evidence will be destroyed or lost or that the physical well-being of people will be endangered unless immediate action is taken"). Defendant essentially concedes this point.

Defendant also seemingly concedes that police acted reasonably in conducting a protective sweep of the room. The Court has recently identified the circumstances justifying a protective sweep of a dwelling: "We hold that a protective sweep of a home may only occur when (1) law enforcement officers are lawfully within the private premises for a legitimate purpose . . . .; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger." State v. Davila, 203 N.J. 97, 125 (2010).2

The Court also said that "as a matter of procedure, the sweep will be upheld only if (1) it is cursory, and (2) it is limited in scope to locations in which an individual could be concealed." Ibid. Defendant argues that in lifting the mattresses, Shomo exceeded the scope of a permissible sweep. However, Shomo knew that four people had been using the room, and only three were in custody. He also knew that when apprehended, defendant admitted the weapon was still in the room, yet, neither of the two people who emerged from the room had the gun. Shomo specifically said that he lifted the mattresses to make sure there was no other person hiding under them, and Judge DeLury found the officer's testimony to be credible. We see no reason to second-guess the officer's reasonable conduct by accepting defendant's premise that it was patently unreasonable to expect someone to be hiding under the mattress. We affirm the denial of defendant's motion to suppress.

II.

Defendant contends that the judge failed to engage in a "deliberative process" when he imposed a term greater than the statutory minimum sentence for second-degree crimes, i.e., five years. He argues in particular that since one victim was "wounded in the leg," the minimum sentence was appropriate and the "total base custodial exposure" should have been twelve, not fourteen, years. We find no basis to disturb defendant's sentence.

"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "'competent credible evidence in the record.'" Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid.(citing State v. O'Donnell, 117 N.J.210, 215 (1989) (quotation omitted)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J.334, 364 (1984) (citation omitted); accordState v. Cassady, 198 N.J.165, 183-84 (2009).

At sentencing, Judge DeLury found aggravating factors three, six and nine. See N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); (6) (the seriousness of the offenses for which defendant had been convicted); and (9) (the need to deter). He found no mitigating factors. These findings were amply supported by the record.

In deciding to impose consecutive sentences on the two aggravated assaults, the judge said

Defendant's possession of a handgun during physical altercation and his intentional shooting of two separate victims indicate an obvious dangerousness to the community. Additionally, in a system of justice where there shall be no free crimes, the punishment shall fit the crime, consecutive sentence is appropriate . . . . There are two separate victims who suffered separate and distinct injuries from [] defendant's multiple firings of his weapon. Even though these offenses occurred at the same time and place, defendant's clear purpose was to seriously injure two separate people. His behavior is deserving of separate and distinct [] consecutive sentences in order to punish, correct and deter this defendant.

Judge DeLury obviously considered the factors identified by the Court in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)). The judge did not mistakenly exercise his discretion in imposing two consecutive seven-year sentences upon defendant.

Affirmed.

1 The parties stipulated before Judge DeLury that an arrest warrant had already been issued. These shootings and other charges were the subjects of Indictment No. 01-12-1208. At the time of his guilty plea, defendant admitted that on July 5, 2011, he fired a gun into a crowd that struck the two victims.

2 We assume, for purposes of this opinion, that a hotel room would be entitled to the same protections.