STATE OF NEW JERSEY v. JUAN RODRIGUEZ-GOMEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0909-07T40909-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN RODRIGUEZ-GOMEZ,

Defendant-Appellant.

____________________________________

 

Argued October 7, 2008 - Decided

Before Judges Fuentes and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No.

06-04-00846.

Jason N. Sunkett argued the cause for appellant

(Liebling, Malamut & Sunkett, attorneys; Adam S.

Malamut, on the brief).

Jack J. Lipari, Assistant Prosecutor, argued

the cause for respondent (Theodore F.L. Housel,

Atlantic County Prosecutor, attorney; Mr. Lipari,

of counsel and on the brief).

PER CURIAM

Defendant Juan Rodriguez-Gomez pled guilty, pursuant to a negotiated plea agreement, to one count of possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7, and one count of possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5. The court sentenced defendant to a term of five years without parole on the firearm possession charge, and to a concurrent three-year term on the illicit drug offense. The court also imposed the mandatory fines and penalties.

Prior to pleading guilty, defendant moved before the court to suppress the evidence gathered by the police that led to his arrest. After conducting an evidentiary hearing, the court denied the motion. Defendant now appeals from this ruling. We gather the following facts from the evidence presented at the N.J.R.E. 104 hearing conducted by the court to review defendant's motion to suppress.

Michael Sweet contacted the New Jersey State Police to file a harassment complaint against defendant. According to the New Jersey State Police investigation report, Sweet telephoned the New Jersey State police and alleged that he had been verbally threatened by Gomez and that he feared for his family's safety. The police transported Sweet and his girlfriend to the police station where they both gave recorded statements.

Although Sweet did not know defendant's exact name and address, the police were able to determine both through investigation. Troopers M. Peeke, F. Serratore, C. R. Scott and Muhaw arrived at defendant's home at approximately 1:30 a.m. The officers obtained permission to enter the house by the homeowner Stephanie Winns. She escorted them to the entrance to the basement apartment where defendant resided. Winns explained that the basement apartment had two entrances, one through the residence and another in the back of the house.

Troopers Peeke and Scott entered the home through Winn's living area while Troopers Serratore and Muhaw waited by the rear entrance to the basement. Trooper Peeke's and defendant's accounts of what transpired differ. According to Peeke, he called defendant by name while standing at the top of the stairs that led to the basement and after identifying himself, the defendant responded that he had to put his dogs away. Defendant then appeared at the bottom of the stairs and invited the troopers, who did not have their guns drawn, down to the basement. According to defendant, the officers ran straight down the steps with their guns drawn. Defendant told the officers to "stand back," and they told defendant to put his dog away. When the troopers entered the basement apartment, defendant was only wearing boxer shorts. His girlfriend, Elizabeth DeJesus, was sitting in the living room, and the couple's two children were playing in another room.

Once inside the apartment, Trooper Peeke introduced himself to defendant and announced his reason for being there. He asked defendant if he was willing to follow him to the station, in his own vehicle, to discuss in more detail Sweet's harassment complaint. In response, defendant admitted that he had argued with Sweet, but denied having made any threats. Because he was wearing only boxer shorts, he requested that the troopers allow him to put on clothing before going to the station. At this point, Peeke asked defendant if he could follow him into the bedroom. Concerned for his safety and that of his fellow officers, Peeke did not want to loose sight of the defendant as he went into another area of the dwelling. According to Peeke, defendant answered "Yes, you can." By contrast, defendant testified that Peeke informed him that he "had to follow" him to his room for officer safety concern. He then responded: "If you have to follow me, you have to follow me."

Peeke testified that upon entering the bedroom, he observed a bag of marijuana, a red scale, and a gold bullet, "right in front of [him]". He immediately seized the items, and read defendant his Miranda rights. According to Peeke, defendant admitted that the marijuana, scale, and bullet belonged to him. Peeke then asked defendant for permission to search his residence, and read him the standard consent to search form. Although he disputed that the form was read to him, defendant signed the consent to search form.

The form describes that the troopers were to search the basement area including the "landing, stairwell, bedrooms, living room, bathroom, kitchen, closet and any containers found therein." Defendant testified that the form was altered after he signed it to increase the scope of the consent. Peeke testified that at this point of the investigation only himself and Troopers Serratore and Scott were present in the apartment. The police recovered an ammunition magazine, a gun box, a loaded 9mm handgun, and thirteen bullets. According to Trooper Serratore, however, the handgun was not found as a result of the search. He noticed the weapon in "plain view" when he tripped as he was leaving the basement.

Against these facts, defendant now appeals raising the following arguments.

POINT ONE

THE OFFICER'S ENTRANCE INTO AND SUBSEQUENT SEARCH OF THE DEFENDANT'S BEDROOM WAS UNCONSTITUTIONAL AS IT VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM UNLAWFUL SEARCHES AND SEIZURES.

A. THE DEFENDANT WAS THE SUBJECT OF AN UNJUSTIFIED INVESTIGATIVE DETENTION AND, THEREFORE, THE RESULTING SEARCH OF HIS BEDROOM WAS UNCONSTITUTIONAL.

B. OFFICER PEEKE'S PRESENCE IN DEFENDANT'S BEDROOM WAS UNJUSTIFIED BECAUSE NO OBJECTIVE FACTS EXISTED THAT WOULD LEAD TO A CONCERN FOR OFFICER SAFETY.

POINT TWO

BECAUSE THE DEFENDANT'S CONSENT TO SEARCH WAS INVOLUNTARY, AS THE STATE FAILED TO ADVISE THE DEFENDANT THAT HE HAD THE RIGHT TO REFUSE THE SEARCH, THE INITIAL INTRUSION BY THE POLICE INTO THE BEDROOM WAS UNLAWFUL AND ALL EVIDENCE DISCOVERED IN "PLAIN VIEW" SHOULD BE SUPPRESSED.

A. BECAUSE OFFICER PEEKE FAILED TO ADVISE MR. GOMEZ THAT HE HAD THE RIGHT TO REFUSE THE SEARCH OF HIS BEDROOM, THE CONSENT IS INVOLUNTARY.

B. BECAUSE OFFICERS WERE NOT LAWFULLY IN DEFENDANT'S BEDROOM TO VIEW THE ITEMS IN QUESTION, THE EVIDENCE SHOULD BE SUPPRESSED.

We reject these arguments and affirm substantially for the reasons expressed by Judge DeLury in his memorandum of opinion dated May 1, 2007. We add only the following brief comments.

In reviewing the denial of a motion to suppress, we are bound by the trial court's factual findings, as long as they are supported by competent evidence in the record. State v. Elders, 192 N.J. 224, 243 (2007). To the extent that defendant's testimony conflicted with the testimony of the police officers, we are bound by the credibility findings made by the motion judge, because he was in the best position to assess the demeanor of the witnesses. Id. at 244. The trial court is not entitled, however, to any special deference regarding its "interpretation of the law and the legal consequences that flow from established facts." Id. at 252. (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

We are satisfied that Judge DeLury correctly found that defendant voluntarily permitted Trooper Peeke to enter his residence and, thereafter, his bedroom. The officers' presence was therefore "the same as that of any other social guest or business visitor" and does "not constitute a Fourth Amendment search." State v. Pineiro, 369 N.J. Super. 65, 73 (App. Div.), certif. denied, 181 N.J. 285 (2004).

As Judge DeLury found, once lawfully present in defendant's bedroom, Peeke observed the contraband he described (a clear plastic knotted bag containing brown/green vegetation of suspected marijuana, a red scale, and a gold bullet) "in plain view." Id. at 72. These findings are sufficient to constitute probable cause in support of defendant's arrest.

We are equally bound by Judge DeLury's factual finding concerning the credibility of Trooper Serratore's testimony describing the circumstances leading to his discovery of the handgun in defendant's residence. It is undisputed that at the time the police discovered the handgun, defendant had a prior conviction for second-degree aggravated assault. He thus falls within the class of individuals prohibited from possessing a firearm. N.J.S.A. 2C:39-7.

 
Affirmed.

The record does not include a copy of the Judgment of Conviction. The transcript of the sentencing hearing indicates that the court sentenced defendant to "four years New Jersey state prison a period of parole ineligibility of five years." We assume that the sentencing judge simply misspoke or there was a transcription error because N.J.S.A. 2C:39-7(b) requires a minimum sentence of five years without parole.

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

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A-0909-07T4

December 2, 2008