STATE OF NEW JERSEY v. RUMIEJAH K. UKAWABUTU

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2799-04T42799-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RUMIEJAH K. UKAWABUTU,

Defendant-Appellant.

__________________________________

 

Submitted September 20, 2006 - Decided October 27, 2006

Before Judges Wefing, C.S. Fisher and Yannotti.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, No. 03-07-1367.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Ruth A. Harrigan, Designated

Counsel, of counsel and on the brief).

Anne Milgram, Acting Attorney General,

attorney for respondent (Daniel I. Bornstein,

Deputy Attorney General, of counsel and

on the brief).

Appellant submitted a pro se supplemental brief.

PER CURIAM

After the trial court denied defendant's motion to suppress, he entered an "open" plea of guilty to one count of possession of one-half ounce or more of a controlled dangerous substance, cocaine, with intent to distribute, N.J.S.A. 2C:35-5a(1), a crime of the second degree. While entering his plea of guilty, defendant acknowledged that he was subject to a mandatory extended-term sentence. N.J.S.A. 2C:43-6f. Thereafter, the trial court sentenced defendant to eighteen years in prison, with a nine-year period of parole ineligibility. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction but remand for resentencing.

On June 27, 2003, the trial court, after reviewing the affidavit of Detective Ronald DiGiovanni of the Atlantic City Police Deparment, issued a "no-knock" warrant for premises located at 1453 Adams Court in Atlantic City. Detective DiGiovanni recited in his affidavit the detailed information that had been supplied by four confidential informants that led him to believe that defendant had a quantity of firearms and ammunition in the apartment. The four confidential informants had provided information in the past that had proven true and accurate. Detective DiGiovanni noted in his affidavit that defendant had three prior convictions, including one for homicide. Defendant had only been released from custody in January 2003.

The warrant was executed that day. Although the search did not turn up weapons or ammunition, it did disclose a significant quantity of narcotics and related paraphernalia associated with the drug trade.

On appeal, defendant raises the following arguments:

POINT I SINCE THE AFFIDAVIT SUBMITTED IN SUPPORT OF THE APPLICATION FOR A WARRANT WAS INADEQUATE TO SUPPORT A FINDING OF PROBABLE CAUSE, DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

POINT II THE STATE FAILED TO DEMONSTRATE SUFFICIENT JUSTIFICATION FOR ISSUANCE OF A NO KNOCK SEARCH WARRANT, NECESSITATING SUPPRESSION OF THE EVIDENCE AND A REMAND TO VACATE THE JUDGMENT OF CONVICTION.

POINT III DEFENDANT IS ENTITLED TO RESENTENCING BECAUSE HIS SENTENCING TERM WAS ENHANCED ON THE BASIS OF FACTS NOT PROVEN TO A JURY BEYOND A REASONABLE DOUBT IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS AND HIS SENTENCE IS EXCESSIVE AND ILLEGAL.

We have not set forth in this opinion the detailed information and corroborative material contained in Detective DiGiovanni's affidavit. We are satisfied that there was ample support for the issuing court to determine there was probable cause to issue this warrant. Defendant's arguments to the contrary do not warrant extended discussion in a written opinion for it would have no precedential value. R. 2:11-3(e)(2).

Similarly, we reject defendant's assertion that the no- knock aspect of this warrant required suppression of the evidence seized. Defendant did not make this argument to the trial court and, indeed, during the motion to suppress, noted that he was not challenging the no-knock provision. In the interest of justice, we will consider the issue nonetheless.

An officer requesting a no-knock warrant must demonstrate "reasonable, particularized suspicion that a no-knock entry is required to prevent the destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence." State v. Johnson, 168 N.J. 608, 619 (2001). Here, defendant's criminal record, which included a conviction for homicide, clearly demonstrated his propensity for violence. The execution of this warrant posed a very real danger to the safety of the officers involved, and the no-knock authorization was justified.

Defendant is, however, entitled to be resentenced under the principles recently enunciated by the Supreme Court in State v. Thomas, 188 N.J. 137 (2006).

Defendant has filed a pro se brief in which he makes the following arguments:

POINT I THE JUDGE BELOW ERRED IN DENYING FRANKS HEARING WHERE A SUBSTANTIAL PRELIMINARY SHOWING THAT FALSE STATEMENT KNOWINGLY AND INTENTIONALLY, OR WITH RECKLESS DISREGARD FOR THE TRUTH, WAS INCLUDED BY AFFIANT IN SEARCH WARRANT AFFIDAVIT.

POINT II THE AFFIDAVIT SUBMITTED IN SUPPORT OF THE APPLICATION FOR A WARRANT WAS INADEQUATE TO SUPPORT A FINDING OF PROBABLE CAUSE DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED. THUS DEFENDANT WAS DENIED DUE PROCESS OF THE LAW, IN VIOLATION OF THE SIXTH AMENDMENT OF THE FEDERAL CONSTITUTION, AND IN VIOLATION OF THE NEW JERSEY CONSTITUTION, ART I PARAGRAPH 7.

POINT III MOTION OF SUPPRESSION SHOULD HAVE BEEN GRANTED BECAUSE PROPER PROCEDURE WAS NOT ADHERED TO IN A WARRANT APPLICATION OF SEARCH WARRANT. IN VIOLATION OF DUE PROCESS OF LAW, DENYING THE DEFENDANT HIS SIXTH AMENDMENT RIGHT OF THE FEDERAL CONSTITUTION, AND DENIAL OF DEFENDANT RIGHTS UNDER THE NEW JERSEY CONSTITUTION, ART I, PARAGRAPH 7.

With regard to defendant's first two arguments, we reject them substantially for the reasons expressed by Judge Michael A. Donio in his oral opinion of May 13, 2004, denying defendant's motion to suppress. With regard to defendant's third argument, it rests upon a misapprehension of the procedure employed in applying for and obtaining a search warrant.

 
Defendant's conviction is affirmed. The matter is remanded for resentencing.

While executing the warrant, the police found two alligators in the apartment, one approximately four and one-half feet long. Defendant was charged with violating N.J.S.A. 2C:35-4.1, placing a booby trap in premises used for the possession of narcotics with intent to distribute. That charge is not involved in this appeal.

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A-2799-04T4

October 27, 2006