STATE OF NEW JERSEY v. RUSSELL W. FISHER, a/k/a LARRY KUNA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2931-05T42931-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RUSSELL W. FISHER,

a/k/a LARRY KUNA,

Defendant-Appellant.

_______________________________________

 

Submitted March 21, 2007 - Decided April 12, 2007

Before Judges Wefing and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-08-1938.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Russell W. Fisher was charged in a Monmouth County indictment with possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); and possession or distribution of a hypodermic needle, N.J.S.A. 2C:36-6. Defendant thereafter moved to suppress evidence which he claimed had been unlawfully seized without a warrant. The trial judge denied the motion and on April 18, 2005, defendant pled guilty to possession of CDS. On October 14, 2005, defendant was sentenced to two years of probation, on condition that he serve 180 days in the county jail. The judge also imposed fines and penalties and ordered a six-month suspension of defendant's driving privileges. Defendant appeals from the judgment of conviction entered on October 21, 2005, and argues that the judge erred by denying his motion to suppress without taking live testimony. For the reasons that follow, we affirm.

In response to defendant's motion to suppress, the State submitted a brief setting forth its version of the facts:

On April 14, 2004, two tactical narcotics team detectives were on duty near Boston Way in Asbury Park. They observed the defendant Russell Fisher step out of his blue Dodge Neon and walk to Building #1 in Boston Way, an area known to the detectives to be high in narcotics activity. Also in the vehicle with Mr. Fisher were two codefendants Jessica Kuna, who has already pled guilty, and Charles Nelson Jr.

After Mr. Fisher stepped out of the car, the detectives saw him speak briefly with an unidentified male, then proceed to the vestibule area of Building #2. In that vestibule, the defendant was seen to engage in [a] hand-to-hand transaction with a second unidentified male. Mr. Fisher then returned to his car and pulled away.

The detectives were [driving] an SUV. [They f]ollowed the defendant and from their higher vantage point, were able to observe the defendants examining what appeared to be [a] control[led] dangerous substance inside the car. They radioed for [a] uniformed unit to execute a motor vehicle stop and the defendants' car was subsequently pulled over.

After the car was stopped, the detectives approached it. They observed Ms. Kina [sic] hand [defendant] a small packet that the detectives believe[d] was narcotics, which [defendant] subsequently attempted to secret[e] beneath the front passenger seat. The officers explained their observations to the defendants, and [defendant] confessed that he had purchased ten bags of heroin and that the defendants had already consumed four bags. The defendants were arrested and a search of the vehicle revealed six bags of heroin.

In response to the State's submission, defendant filed a brief which stated in pertinent part, "We agree with most of the [S]tate's facts except that we question the ability of the [detectives] to observe the details they describe in their arrest report. The crucible of cross-examination will reveal the truth."

The motion to suppress was heard on January 14, 2005. Defendant's attorney stated that he had been informed that the judge was not going to take testimony. Counsel asserted that defendant had expressed an interest in testifying and he expected the officers to testify so that the judge could "get a flavor of what actually transpired on the day in question." Counsel stated that it was defendant's position that he and his co- defendants had been pulled over because they were white and were in Asbury Park, and the detectives had not told the truth concerning the incident.

Counsel additionally asserted that he had expected to have the opportunity to cross-examine the officers to determine "what actually went down." Counsel said that he thought that the statements in his brief would be sufficient to obtain an evidentiary hearing. Counsel asked for the opportunity to submit another brief so that the matter could be determined on the basis of "some live testimony."

The judge found that the statements in defendant's brief did not raise a genuine issue of fact that would require the taking of live testimony. The judge thus decided the motion based upon the facts as set forth in the State's brief. The judge concluded that the officers had reasonable suspicion to stop defendant's vehicle and probable cause to arrest defendant. The judge further found that the search of the vehicle was proper.

Defendant raises the following issue for our consideration:

THE COURT ERRED IN NOT HOLDING AN EVIDENTIARY HEARING ON THE MOTION TO SUPPRESS AS DEFENDANT'S BRIEF DID PRODUCE A COUNTER STATEMENT OF FACTS AND DEFENSE COUNSEL ASKED SEVERAL TIMES TO BE PERMITTED TO SUBMIT A SUPPLEMENTARY BRIEF ONCE COUNSEL ASCERTAINED THAT THE ORIGINAL BRIEF DID NOT MEET WITH THE COURT'S APPROVAL. BY RULING ONLY ON THE STATE'S FACTS, DEFENDANT WAS DENIED A FULL AND FAIR HEARING ON THIS MOTION IN DENIAL OF HIS RIGHT TO A FAIR TRIAL.

We have carefully considered the record and conclude that this contention is entirely without merit.

Our court rules establish the procedure to be followed when a defendant seeks to suppress evidence allegedly obtained in an unlawful search or seizure. Pursuant to R. 3:5-7(a), the defendant first files his notice of motion to suppress. If the search was made without a warrant, the State must file a responding brief setting forth the facts as the State "alleges them to be." R. 3:5-7(b). The defendant then is required to respond with a brief and counter statement of the facts. Ibid. "If material facts are disputed, testimony thereon shall be taken in open court." R. 3:5-7(c).

The rule makes clear that an evidentiary hearing is only required when material facts are in dispute. State v. Kadonsky, 288 N.J. Super. 41 (App. Div.), certif. denied, 144 N.J. 589 (1996). Furthermore, in a matter where evidence was obtained without a warrant, the burden is on the defendant to raise a dispute as to the material facts set forth in the State's brief. "The mere allegation of a warrantless search, with the attendant burden of proof on the State to justify same, does not place material issues in dispute, nor does defendant's assertion that he denies the truth of the State's allegations." State v. Green, 346 N.J. Super. 87, 91 (App. Div. 2001) (citing State v. Hewins, 166 N.J. Super. 210, 214 (Law Div. 1979), aff'd, 178 N.J. Super. 360 (App. Div. 1981)).

Here, the assertions in defendant's brief were insufficient to raise a genuine issue of material fact. In his brief, defendant questioned whether the detectives had been in a position to make the observations they reportedly made and suggested that live testimony by the officers would reveal "the truth." However, defendant's brief did not contain any factual allegations to counter the assertions in the State's brief.

Defendant's submission is similar to that presented in Hewins, where the defendant moved to suppress evidence and merely asserted that the search and the fruits thereof were "presumptively illegal and [the] evidence seized should be suppressed." Hewins, supra, 166 N.J. Super. at 214. The defendant's statement was deemed insufficient to raise a material issue of fact requiring the taking of live testimony. Ibid.

In this matter, the statements in defendant's brief were essentially a bald assertion that the evidence had been unlawfully obtained without a warrant. As in Hewins, defendant did not submit a statement of facts disputing the State's version of the events. In these circumstances, R. 3:5-7(c) does not require that the judge take live testimony before ruling on the motion to suppress. See Kadonsky, supra, 288 N.J. Super. at 45-46 (holding that a defendant's assertion that evidence was obtained illegally was insufficient to require an evidentiary hearing under R. 3:5-7(c) because defendant had not provided any factual assertions to support the claim).

Defendant argues, however, that the judge erred by refusing to allow him the opportunity to file a supplemental brief to support his request that the judge take live testimony on the record. We disagree. At the suppression hearing, defense counsel did not set forth on the record any facts that would be included in a supplemental brief. He also stated that defendant wanted to testify so that the judge could "get a flavor of what actually transpired" on the day in question; however, counsel did not provide any indication as to what defendant would say if he testified. Furthermore, after the motion had been denied, defense counsel could have filed a motion for reconsideration and included any additional factual information that might have raised a genuine issue of material fact pertinent to the suppression motion. No such motion was ever filed. Based on this record, we are satisfied that the judge did not abuse his discretion by refusing to permit defendant to file a supplemental brief.

We note that, at sentencing, the judge made clear that he was sentencing defendant to two years of probation, with 180 days in the county jail as a condition of probation. However, the judgment of conviction states that the total custodial term is 57 days, which was the time served from August 18, 2005, to October 13, 2005. Because the judgment of conviction is inconsistent with the plea agreement and sentence, we remand so that the judgment may be corrected.

 
Affirmed and remanded for entry of a corrected judgment.

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A-2931-05T4

April 12, 2007