STATE OF NEW JERSEY v. JOHN W. AMATO

NOT FOR PUBLICATION WITHOUT THE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.

JOHN W. AMATO,

Defendant-Appellant.

____________________________

July 28, 2016

Submitted May 23, 2016 Decided

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-01-0287.

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

James P. McClain, Atlantic County Prosecutor, attorney for respondent (John J. Santoliquido, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence seized in a warrantless search and the denial of his application for a full Graves Act1 waiver, defendant John W. Amato entered into a conditional guilty plea to third-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3b. Following defendant's unsuccessful appeal of his partial Graves Act waiver, the judge sentenced defendant in accordance with his plea agreement to three years in State prison with one year of parole ineligibility. Defendant appeals raising the following issues.

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S GRAVES ACT WAIVER APPEAL.

POINT III

DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

Finding no basis to disturb Judge Donio's factual findings or legal conclusions on the motion to suppress, we affirm defendant's conviction. We, however, remand for resentencing in light of State v. Nance, 442 N.J. Super. 268 (App. Div. 2015), certif. granted, 224 N.J. 124 (2016).

This case arises out of a call to police reporting shots fired late one summer evening in rural Hammonton Township. The police eventually learned defendant and a friend had been target shooting at a fifty-five-gallon steel drum in a field behind defendant's house using a prohibited weapon, namely, a sawed-off shotgun. Although defendant did not testify, it appears as if he was in his garage working on the shotgun when a friend and his wife dropped in. Defendant, then fifty years old, had sawn through the barrel of the shotgun, intending to replace it. After a couple of beers, the two men apparently decided to test its performance in its altered condition, leading to the events testified to at the suppression hearing.

At the suppression hearing, Judge Donio was confronted with two widely divergent accounts of what happened when the police arrived. Two officers testified for the State. By their account, police at 11:15 p.m. took the report of a man who told them he had heard six shotgun blasts, he thought quite close to his home. Five officers began to canvass the few houses in the area looking for the shooter.

When the officers arrived at defendant's house about thirty minutes later after stopping at two other homes, the door was open and there were lights on inside. The shift supervisor, a sergeant, knew the property and defendant. Defendant's property was wooded with trees blocking a view of the house from the road. There were farm fields behind the house. One of the other officers described the grass around the house as being waist-high, with an abandoned truck and other items strewn about. The sergeant testified that standing on the porch, he could see the kitchen through the screen door. On the kitchen table he saw a gun cleaning kit. A box of shotgun shells was on the countertop.

The officers testified that a woman answered their knock. She said she lived there with her boyfriend, defendant, and that he and a friend had been using a shotgun to shoot at a barrel they used to burn trash. As the sergeant spoke with the woman, his fellow officers fanned out across the property, maintaining a perimeter "so as to keep an eye out for anyone with a gun." When the officer went into the backyard, he found the rusted barrel with fresh holes, a few beer cans on the ground and smelled gun cleaning solvent.

As he was looking at the burn barrel, another officer pointed out two marijuana plants growing in pots nearby. The night was dark and the police were using flashlights to scan the area looking for the shooter. In the bed of an old Ford pickup nearby, officers saw another marijuana plant. After seeing the barrel and the plants, the sergeant returned to the porch to ask defendant's girlfriend to ring his cell phone so the officers could speak to him.

In the meantime, dispatch advised the sergeant that a background check on defendant revealed he was prohibited from possessing weapons as a result of a domestic violence restraining order.2 As the sergeant was on the porch, after the advice from dispatch, asking defendant's girlfriend whether there were any weapons in the house, the officer on the perimeter closest to the nearby garage shouted to him that the phone was ringing inside the open garage.

Concerned defendant may have been hiding in the garage with the shotgun, the officer entered the small structure through the open overhead door to conduct a sweep and immediately saw the cell phone, cut pieces of a shotgun barrel and a .25 caliber pistol. Defendant was not there.

The sergeant claimed he then continued his conversation with defendant's girlfriend, who was "very cooperative" and invited him inside. He testified she willingly signed the consent and offered to retrieve defendant's other guns from under the bed. The sergeant testified he told her he did not think that was a good idea and went under the bed to retrieve the three long guns himself.

After securing the guns in the trunk of his patrol car, the sergeant testified he drove, with two other officers, down a farm lane to "a pit" located about eighty yards away from the house, where defendant's girlfriend suggested he might be. The pit was located between two farm fields and defendant's girlfriend told the sergeant defendant liked "to go back there and shoot a lot and he might be back there." Two other officers, one with a dog, followed on foot.

While they were out there, the officer who discovered the cell phone in the garage radioed that defendant had appeared, empty handed but intoxicated and belligerent. The officers handcuffed him for their safety. He admitted firing the shotgun but would not tell the officers where it was. After being read his Miranda3 rights, defendant claimed he had just returned from taking his friend home. The officers did not believe him because the truck the sergeant knew him to drive had been in the driveway all along.

After the sergeant directed the K-9 officer to use his dog to search for the gun and the officers expressed concern for what could happen were it discovered by a child, defendant led them to its location hidden under a tree. Defendant's friend, discovered nearby, was also arrested.

Defendant's girlfriend gave a completely different account of those events. She testified she was awakened by her dog barking and a police officer, who was not one of the officers who testified, knocking at her door to ask whether she had heard shots fired. She said no, and the officer apologized for bothering her and left. A few minutes later, the officer returned with his sergeant and asked if she would step outside. She noticed the outside motion light had come on, and she could see flashlights moving around the property. Although acknowledging there was a gun cleaning kit on the kitchen table, she claimed the sergeant would not have been able to see it from where he stood on the porch.

In response to the sergeant's question regarding the whereabouts of her boyfriend, she answered she did not know. When she called his cell phone at the sergeant's request, the phone rang in the living room. When she brought the phone out to the sergeant, another officer was coming out of the garage carrying the pistol and some other items. The officers asked if they could come into her house to look for defendant. She allowed them in to let them confirm defendant was not in the house, but said she did not give them permission to search.

She also claimed she never told the officers defendant had been shooting at the burn barrel or suggested he might be at the pit. She claimed defendant simply walked back toward the house from across the field while she was talking to the officers. She claimed after she pointed him out, the officers began screaming at him to get on the ground. They then handcuffed him and put him in the back of the patrol car.

Defendant's girlfriend claimed the officers only discovered the marijuana plants after defendant was in the patrol car and had refused their request to search the house. She acknowledged her own signature on the consent form but insisted it was blank when she signed it, which she only did because the sergeant told her she would otherwise be arrested for possession. She insisted the officers had already searched the house and grounds when she signed the consent form.

After hearing the testimony, Judge Donio denied defendant's suppression motion in a comprehensive opinion delivered from the bench. The judge began his opinion by acknowledging the case came down to the credibility of the witnesses. He then carefully explained how the computer-aided dispatch (CAD) recording, which provided real-time data of the officers' movements and their radio transmissions, closely corroborated the officers' version of the events and discredited defendant's girlfriend's account.

The judge also rejected defendant's claim the case involved only an ordinance violation of discharging a firearm in a rural area where hunting is permitted. The judge found that characterization vastly minimized the situation confronting the officers. Although acknowledging a report of shots fired could mean nothing more than an ordinance violation, it could also mean a possible homicide or aggravated assault. The judge found the police "had a duty and obligation" to respond accordingly and did so, as evidenced by the five officers, including the shift supervisor, deployed to investigate the report.

The judge found the officers were lawfully on the property after the report of shots being fired in the area. See State v. Domicz, 188 N.J. 285, 301-03 (2006). He found credible the sergeant's testimony, confirmed by the CAD data recording, that upon walking onto the porch to knock on the door, he saw the gun cleaning kit and box of shotgun shells through the screen door. He also accepted the sergeant's testimony that defendant's girlfriend told him defendant had been shooting at the burn barrel, reasoning that it would be an otherwise unlikely place to go first in search of the shooter.

The judge found that while walking in the area of the barrel to which defendant's girlfriend had directed them, the officers then saw the marijuana plants in plain view in a place they were lawfully entitled to be, relying on State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). The officers at that point had evidence of a criminal violation and still no idea of the whereabouts of an active shooter. Based on those facts, the judge found the sergeant's decision to sweep the property, putting officers on the perimeter and asking defendant's girlfriend to call his cell phone so the officers could speak with him, was imminently reasonable. See State v. Johnson, 193 N.J. 528, 552 (2008).

Finding the testimony of the officer who said he heard the cell phone ring inside the garage "extremely credible," Judge Donio concluded the officer had a right under State v. Faretra, 330 N.J. Super. 527, 531-32 (App. Div.) (holding the police have the authority "to enter private premises when the police reasonably believe that a crime is taking place or has just taken place, for the limited purpose of rendering aid to a possible victim of the crime or seeking or apprehending the perpetrators or taking any necessary steps to secure the premises"), certif. denied, 165 N.J. 530 (2000), at that point "to go into that garage very carefully to see if [defendant] is in there, if he's armed, and to get the weapon. They [do] that and they see these other guns in plain view." The judge further alternatively found the seizure of the pistol and shotgun barrel parts could be justified as a protective sweep once the officer heard the cell phone ring. See State v. Davila, 203 N.J. 97, 116 (2010).

Judge Donio found that when the dispatcher advised the sergeant of defendant's restraining order, the police "have an ordinance violation, a possibility of a homicide or something major, you have marijuana on the property, and you may have a person in possession of firearms against and contrary to a court order." He concluded

So, you see, now this thing is escalating by the minute. More charges are building up by the minute. The heightened awareness of the cops is expanding by the minute, and by the minute it becomes more and more important to find out who shot these guns, do they have the guns, et cetera.

The judge accepted the officers' testimony that they then advised defendant's girlfriend about the restraining order and asked for consent to search, which she freely gave, volunteering the information about the guns under the bed. The judge found the officer's testimony about the timing of the execution of the consent-to-search form was corroborated closely by the CAD data. He rejected as not supported by the evidence the girlfriend's claim she was presented with the form only after police had searched the premises, arrested defendant and secured him in the back of the patrol car. Instead, Judge Donio found, based on the credible testimony in the record, that she voluntarily executed the consent-to-search form before the police apprehended defendant.

Our standard of review on a motion to suppress is limited. State v. Gamble, 218 N.J. 412, 424 (2014). We defer to the trial court's factual findings on the motion, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (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.'" Gamble, supra, 218 N.J. at 424-25 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Our review of the trial court's application of the law to the facts, of course, is plenary. State v. Hubbard, 222 N.J. 249, 263 (2015).

Applying those principles here, we find no basis to overturn Judge Donio's careful findings. Accordingly, we affirm the denial of defendant's motion to suppress substantially for the reasons expressed in his oral opinion from the bench on July 24, 2013. We add only that, based on the judge's finding that defendant's girlfriend voluntarily executed a consent to search, the guns found in defendant's house and garage would have been inevitably discovered by the police in any event. See State v. Sugar, 100 N.J. 214, 238 (1985).

We turn now to defendant's sentence and the partial Graves Act waiver under the "escape valve" statute. N.J.S.A. 2C:43-6.2. Defendant moved three times for a Graves Act waiver from the prosecutor and was ultimately granted a partial waiver, that is a recommended three-year State prison term with one year of parole ineligibility.4

Defendant sought discovery of the prosecutor's files,5 which Judge Donio granted to allow defendant a fair opportunity to show the prosecutor's decision not to endorse defendant's application for a total waiver was arbitrary, capricious or unduly discriminatory. See State v. Mastapeter, 290 N.J. Super. 56, 65 (App. Div. 1996). Following the production of the prosecutor's files, defendant appealed the prosecutor's decision to permit only a partial waiver. After extensive briefing and argument, Judge Donio denied defendant's motion concluding he could not find it arbitrary or capricious.

A review of the sentencing transcript, however, makes plain the judge disagreed with the recommended sentence. He nevertheless considered himself bound to impose sentence in accordance with the prosecutor's recommendation.6 We subsequently held in Nance, however, that the Graves Act escape valve does not limit the sentencing judge's ability to sentence a defendant to a lesser sentence than provided by the plea bargain. 442 N.J. Super. at 274. Accordingly, Judge Donio was not bound by the State's recommended sentence of three years in State prison with a one-year period of parole ineligibility. Once the State's waiver motion is granted, as it was here, the judge is free to impose any sentence permitted by N.J.S.A. 2C:43-6.2. Ibid.

Because the trial court believed it had no discretion to impose a lesser sentence than the one recommended by the prosecutor, we remand for resentencing in accordance with Nance.7 We do not retain jurisdiction.

Affirmed in part; vacated in part and remanded for resentencing.

1 N.J.S.A. 2C:43-6c.

2 There is no dispute that the authorities subsequently learned the final restraining order did not prohibit defendant from possessing weapons.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 "N.J.S.A. 2C:43-6.2 provides that where a defendant has not been previously convicted of a Graves Act offense, and where the three year mandatory minimum 'does not serve the interests of justice,' the prosecutor may move before the Assignment Judge for a reduced mandatory minimum term of one year, or to place the defendant on probation with the condition of a jail term pursuant to N.J.S.A. 2C:43-2b(2)." State v. Watson, 346 N.J. Super. 521, 535 (App. Div. 2002), certif. denied, 176 N.J. 278 (2003).

5 We subsequently held in State v. Benjamin, 442 N.J. Super. 258, 266 (App. Div. 2015), certif. granted, 224 N.J. 119 (2016), that such discovery was essential for informed judicial decision making.

6 We quote from the sentencing transcript

[B]efore I impose sentence, let me just indicate that, as I said, the law does not allow me to substitute my view of this instead of the prosecutor's view. The legislature has [imputed] to the prosecutor basically the authority to make basically 99 percent of the decisions in these Graves matters. And in the one percent of the cases where . . . it is absolutely arbitrary, capricious and discriminatory, the court can intervene.

. . . .

This man's not a criminal. He's not a criminal. . . . He is an adult who acted like a child and did something stupid that night. That's what he did. He's not a criminal.

. . . .

The law in this case the way it's written is clear: the prosecutor basically has the final say unless he totally screws up. That's what the law is. . . .

If I had the final decision and [the standard to overturn the prosecutor] was not arbitrary or capricious, it would probably be different. But I can't say he was arbitrary and capricious and that's the reason that I could not grant the waiver.

7 We do so knowing Judge Donio has since retired. We accordingly direct the case to the vicinage's current criminal presiding judge.