STATE OF NEW JERSEY v. DAVID BANKS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1508-04T41508-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID BANKS,

Defendant-Appellant.

_______________________________________________

 

Submitted January 30, 2006 - Decided February 8, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-06-0550.

Joel M. Harris, attorney for appellant, of counsel and on the brief.

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (Seth Levy, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A Cumberland County indictment charged defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On November 10, 2003, defendant pleaded guilty to count three. In return for defendant's guilty plea, the State recommended a five-year term of imprisonment with a two and one-half-year period of parole ineligibility.

Later, defendant moved for a withdrawal of his guilty plea and for a dismissal of the indictment. The motion was denied on June 25, 2004. A motion for reconsideration was denied on August 6, 2004, at which time the judge also sentenced defendant to a five-year term of imprisonment with a two and one-half-year period of parole ineligibility. A judgment of conviction was entered that same day.

Defendant appealed. In his brief, defendant presents only the following argument for our consideration:

SINCE THE ARREST WARRANT WAS NOT VALID, DEFENDANT'S ARREST WAS ILLEGAL AND THE INDICTMENT SHOULD HAVE BEEN DISMISSED AND DEFENDANT ALLOWED TO WITHDRAW HIS GUILTY PLEA.

We reject this contention and affirm.

Defendant argues that the arrest warrant utilized by law enforcement officials to take him into custody did not conform to our court rules. Specifically, defendant relies upon R. 3:3-1(a), which requires that an arrest warrant may be issued on a complaint only if "a judge, clerk, deputy clerk, municipal court administrator or deputy municipal court administrator finds from the complaint or an accompanying affidavit or deposition, that there is probable cause to believe that an offense was committed and that the defendant committed it and notes that finding on the warrant." Defendant also relies upon R. 3:2-1(a) which requires that the complaint "shall be by certification or oath before a judge or other person authorized by N.J.S.A. 2B:12-21 to take complaints." Defendant claims that both these rules were breached because the warrant was not "sworn before a judge or court official" and because "there is no mention of probable cause listed on the face of the original warrant," but instead "[i]t appears that probable cause was written onto the complaint subsequent to defendant's arrest."

In ruling upon the motion, the judge was provided with an affidavit of the municipal court's administrator that indicated a detective called the municipal judge and, as a result of what was said, the judge "found probable cause to issue the warrant." Following that, the detective contacted the court administrator, swore to the facts he had provided to the judge, and faxed the warrant to the court administrator's home. The court administrator executed the fax copy of the warrant and returned it by fax to the detective. The court rules permit the use of communications other than through the physical presence of the appropriate officials in this process. See R. 3:2-3(b). We are satisfied that the circumstances recounted by the court administrator constitute substantial compliance with the rules regarding the issuance of arrest warrants.

Moreover, we reject defendant's bald assertion that "if the arrest is illegal [because of the alleged insufficiencies in the arrest warrant] the indictment should be dismissed and his guilty plea vacated." Defendant offers no legal support for this contention. It may be true that any evidence obtained by law enforcement as a result of a faulty arrest may be suppressed. But defendant failed to show that the police obtained any evidence as a result of his arrest or, if they had, how it would undermine the indictment. Accordingly, since defendant has not suggested a link between the alleged technical defect in the arrest warrant itself, or in the manner in which it was issued, we cannot conclude that the trial judge erred in refusing to dismiss the indictment. In addition, defendant has not presented an argument as to why, in this circumstance, his motion to withdraw his guilty plea should have been granted and we can locate no such reason in the record.

 
Affirmed.

 

The trial judge also observed that the assignment judge of the vicinage had previously authorized the use of faxed documents in the municipal court.

(continued)

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A-1508-04T4

February 8, 2006