STATE OF NEW JERSEY v. SHANNON WALLACE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4239-06T44239-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHANNON WALLACE,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 12, 2009 - Decided

Before Judges Wefing and Parker.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-08-1714.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the briefs).

Anne Milgram, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Shannon Wallace appeals from an order entered after a remand proceeding on April 6, 2005 denying his motion to suppress evidence seized without a warrant. After denial of his original motion on May 14, 2002, defendant was tried by a jury and found guilty of third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); third degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7; two counts of third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b and -5d; second degree possession of a weapon while committing a drug crime, N.J.S.A. 2C:39-4.1a; fourth degree possession of a prohibited weapon, N.J.S.A. 2C:39-3d; and second degree possession of a weapon by a prohibited person, N.J.S.A. 2C:39-7b. After the appropriate mergers, defendant was sentenced to an aggregate term of twenty years subject to ten years parole ineligibility.

These charges arose out of defendant's arrest on January 22, 2001 when Parole Officer Thomas High arrived at a residence he knew defendant occupied. Along with eight other parole officers, High intended to serve an arrest warrant for violation of parole. The residence was within one thousand feet of a school.

High had supervised defendant since 2000 and had made numerous "home visits" to this address. High knew from past visits that defendant occupied a second floor bedroom from which High saw him "peek out" on January 22, 2001. When the officers entered the house, they went to the second floor bedroom, where one of the officers saw a clip of eight vials of suspected cocaine on a dresser. A drawer in the dresser was partially opened and contained a black semi-automatic handgun. Other officers found a bundle of drugs and a knife in the bedroom. Under the mattress, along with other mail addressed to defendant, they found a certificate from the Parole Department addressed to defendant indicating that he had completed a ninety-day reporting program. One thousand empty vials were found under the bed.

Defendant was not in the second floor bedroom when the officers entered it. One of the officers went to the attic and found defendant hiding behind a clothes rack. When defendant was seized and arrested, he did not have any shoes on. His girlfriend, who was present at the time, indicated to the officers that defendant's shoes were in the bedroom closet. His work boots were retrieved from that closet.

After hearing the testimony at the suppression hearing, the motion judge found that the officers were authorized to enter the home and the bedroom pursuant to the warrant, regardless of whether that was defendant's official address, because they had seen defendant inside the residence on the date the warrant was served and High had previously made "home visits" to this address.

His motion to suppress having been denied, defendant proceeded to trial. The trial judge determined that all of the evidence seized was admissible under the plain view doctrine, including the evidence found under the bed and mattress.

Defendant appealed his conviction and on October 22, 2004, we remanded the matter for a hearing for the trial judge to explain the rationale for admitting into evidence the non-plain view evidence - specifically, the one thousand vials found under the bed and the paperwork under the mattress. State v. Wallace, No. A-6001-02 (App. Div. Oct. 22, 2004) (slip op. at 11-12).

A remand hearing was conducted on March 17, 2005 by the judge who had denied defendant's pre-trial suppression motion, rather than the trial judge. The remand judge rendered a decision on the record of that date in which he reviewed the testimony and the evidence presented at the suppression hearing and the applicable case law. The remand judge concluded that the continuation of the search beyond the plain view evidence was valid because "[i]t started with plain view, exigent circumstance - under exigent circumstances, hot pursuit, valid arrest warrant, and what they had found in plain view which indicated the further dangerousness of the situation."

In this appeal, defendant argues:

POINT ONE

THE INSTRUCTIONS OF THE APPELLATE DIVISION WERE NOT FOLLOWED INSOFAR AS THE REMAND WAS ASSIGNED THE JUDGE THAT DECIDED A PRETRIAL MOTION INSTEAD OF THE JUDGE THAT PRESIDED OVER THE TRIAL

POINT TWO

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL

Defendant contends that the trial court did not comply with our instructions on the remand hearing. We agree. The remand hearing was not conducted by the same judge who tried the case. Thus, the judge who heard the matter on remand could not have been familiar with the officers' testimony at trial and could not have been aware that certain crucial trial testimony differed from the testimony given at the suppression hearing.

At trial, Parole Officer Russo testified that when he moved the bed and lifted the mattress, he found defendant's paperwork and the additional one thousand empty vials. He also testified that defendant had already been arrested and secured at the time he looked under the mattress and the bed. Russo's trial testimony was contrary to other testimony during the suppression hearing that the evidence under the mattress and the bed was found while the officers were searching for defendant.

During the remand hearing, the trial judge stated:

The only issue before this [c]ourt is whether the search by Officer Russo under the mattress which [uncovered] a box of empty vials and paperwork was lawful in the event that the search is not supported by a valid warrant . . . . The State has the burden to demonstrate that the search falls within one of the exceptions to the warrant requirement. The State must prove by a preponderance of the evidence [that] there were no constitutional violations. State v. Wilson, 178 N.J. 7 (2003).

The remand judge determined that since the officers were on the premises legally pursuant to a valid warrant, the search under the bed and the mattress occurred pursuant to the officers' looking for defendant. Because the remand judge reviewed only the suppression hearing testimony and did not consider the contrary trial testimony, the finding on remand that the vials and paperwork were located during the search for defendant is not supported by the substantial credible evidence.

Defendant was charged with possession based upon the paperwork found under the mattress. He was charged with intent to distribute based upon the thousand vials seized from under the bed. Given these circumstances and the divergence of Russo's trial testimony from the testimony given at the suppression hearing, we are constrained to remand once again for a further hearing - this time by the trial judge - to determine whether the items seized from under the mattress and the bed were admissible at trial.

We decline to address defendant's ineffective assistance of counsel argument because it is more appropriately left for a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 460-61 (1992).

Reversed and remanded for further proceedings consistent with this opinion and our opinion rendered on October 22, 2004. We do not retain jurisdiction.

 

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A-4239-06T4

August 25, 2009