STATE OF NEW JERSEY v. JOHN A. GONZALEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1065-07T41065-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN A. GONZALEZ,

Defendant-Appellant.

_______________________________________

 

Submitted March 15, 2010 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-07-977.

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

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel; William Kyle Meighan, Assistant County Prosecutor, on the brief).

PER CURIAM

Defendant John Gonzalez was tried before a jury and found guilty of violating N.J.S.A. 2C:39-7(b), which makes it unlawful for persons who have been convicted in this State of certain offenses to own, possess or control a firearm. The trial court granted the State's motion for imposition an extended term of incarceration as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), and sentenced defendant to fifteen years in jail, with a seven-year period of parole ineligibility. Defendant appeals from the judgment of conviction dated August 17, 2007. He raises the following issues for our consideration.

POINT I

THE TRIAL COURT [ERRONEOUSLY] DENIED THE MOTION TO SUPPRESS, THEREBY VIOLATING DEFENDANT'S STATE CONSTITUTIONAL [RIGHT] TO BE FREE OF ILLEGAL SEARCHES AND SEIZURES (N.J. Const. Art. I, Para. 7)[.]

POINT II

DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.

For the reasons that follow, we find no merit in these arguments and affirm.

I.

We begin with a summary of the evidence presented at the suppression hearing, which took place on August 31, 2006. Patrolman Leroy Marshall (Marshall) of the Lakewood Police Department (LPD) testified that, around 6:55 p.m. on November 20, 2004, he and Officer Robert Shomonovich (Shomonovich) responded to a report of a domestic violence dispute and possible possession of a firearm.

Marshall said that he and Shomonovich went to the door of the house and were greeted by defendant's mother, Ada Gonzalez. Ms. Gonzalez took the officers to an apartment at the side of the house, where defendant lived. The officers knocked on the door and defendant answered. The officers explained why they were there and asked Ms. Gonzalez to consent to a search for a weapon.

At that point, Patrolman Joseph Qualiano (Qualiano) arrived with a consent-to-search form. According to Marshall, Ms. Gonzalez read the form and signed it. The form stated that Ms. Gonzalez had been informed of her constitutional right "NOT TO HAVE A SEARCH MADE OF THE PREMISES[,]" which were identified on the form. The form also stated that Ms. Gonzalez had "AUTHORIZE[D]" Marshall and Shomonovich "TO CONDUCT A COMPLETE SEARCH OF [HER] RESIDENCE OR VEHICLE[.]" and "TO TAKE FROM [HER] RESIDENCE OR VEHICLE, ANY LETTERS, PAPERS, MATERIALS, OR OTHER PROPERTY WHICH THEY MAY DESIRE." The form additionally stated that the "WRITTEN PERMISSION" had been given "VOLUNTARILY AND WITHOUT THREATS OR PROMISES OF ANY KIND."

Marshall testified that Ms. Gonzalez was present while the officers searched the premises. Ms. Gonzalez told the officers that if there was a gun on her property, she wanted them to find it. The officers did not find anything of evidential value in the house. They searched the back yard. The officers found a black bag under a shed in the back yard. They opened it and found a firearm. Marshall said that no one told them to stop the search at any time.

Qualiano testified that Marshall and Shomonovich were present when he arrived at the Gonzalez home. Shomonovich approached him and asked if he had the consent-to-search form. Qualiano retrieved the form from his car and started to fill it out, indicating the premises to be searched. Qualiano stated that he had Marshall and Shomonovich write additional information on the form because they were going to execute the search.

Qualiano handed the form to Ms. Gonzalez and advised her to read the form. He said that she read the form. Qualiano asked her if she had any questions, and she said, "no[.]" She then signed the form. Qualiano stated that he was not aware that Ms. Gonzalez had any problem reading the form. Qualiano futher testified that it appeared to him that she had actually read the words on the form.

Ms. Gonzalez testified that she resided in the home with her husband, Morton Eaton (Eaton), and two granddaughters. She stated that the house has two floors and, on the side, a garage area had been converted to an apartment, with a separate entrance, where defendant was living. She testified that when the police officers arrived, she went with them to the apartment. Defendant opened the door. She also testified that, when she heard there was a weapon in the apartment, she wanted the police to find it. The police escorted defendant outside the house and he waited in the driveway.

Ms. Gonzalez acknowledged that she had been asked to sign a consent-to-search form. An officer had handed it to her. The form was not read to her. She stated that the officers looked through the house but did not find any evidence. The officers then exited the house. Ms. Gonzalez said that the officers found a black bag, gun and bullets in the yard. Ms. Gonzalez stated that one of the officers then asked whether she had signed the form. She had not signed it. An officer handed her a pen.

Ms. Gonzalez additionally testified that she did not have her reading glasses with her at the time. She said that her husband had shut off the outside light. She stated that it was dark out and she could not see. She asked the officers where should she sign. She was told, "[r]ight there." Ms. Gonzalez signed the form. She stated that the first time she read the form was two or three weeks before the suppression hearing. She was asked about her eyesight. She asserted that she needed glasses to read.

Eaton also testified. Eaton stated that he and Ms. Gonzalez were watching television when the police officers arrived. The police said they were looking for defendant "for a . . . possible weapon and maybe an argument with his girlfriend." Eaton and Ms. Gonzalez went outside and showed the police the apartment where defendant was living. They went to the door and defendant answered. The police entered the apartment and searched it. The police asked Ms. Gonzalez to consent to the search and an officer went to get the form.

Eaton stated that the police did not find any firearms or contraband in defendant's apartment. The officers then went to the backyard. Eaton stayed with defendant and another officer while the police continued the search. Eaton asserted that the police returned with a black bag, which contained a gun and bullets. The police then took defendant into custody.

Eaton also testified that he did not see Ms. Gonzalez sign the consent-to-search form. Eaton did not see her read it and she did not have her reading glasses with her at the time. Eaton said that he did not hear anyone read the form to her, nor did he hear anyone tell Ms. Gonzalez she had the right to refuse to consent to the search. On cross-examination, Eaton acknowledged that when he heard that the police were looking for a weapon, he wanted the weapon to be found, if one was on the premises.

The trial court placed its decision on the record on September 7, 2006. The court found that Ms. Gonzalez had voluntarily consented to the search. The court noted that, prior to and at the time the consent-to-search form was provided to her, Ms. Gonzalez "communicated unequivocally" that she wanted the police to find any weapons located on her property. The court noted that, although he was not asked to consent to the search, Eaton also testified that he wanted any weapons on the premises to be found.

The court further found that the officers had not read the form to Ms. Gonzalez but she had been afforded the opportunity to ask Qualiano any questions she may have had regarding the form. The court pointed out that the form indicated that the person signing the form had been informed of the constitutional right not to have the search made of the premises. The court found that, in searching the premises, the officers did not exceed the scope of the consent. The court stated that both Ms. Gonzalez and Eaton "wanted any weapon to be found on . . . their property, without limitation or restriction[.]"

II.

Defendant argues that the trial court erred by denying his motion to suppress. We disagree.

"A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search of a home." State v. Domicz, 188 N.J. 285, 305 (2006). Furthermore, "consent searches are considered a 'legitimate aspect of effective police activity.'" Ibid. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854, 863 (1973)).

"[T]o determine whether a person's consent was voluntarily given or coerced, the proper analytical framework is whether a person has knowingly waived his [or her] right to refuse to consent to the search." Id. at 308. An essential element of whether consent was voluntary is "'knowledge of the right to refuse consent.'" Id. at 307 (quoting State v. Johnson, 68 N.J. 349, 353-54 (1975)).

A trial court's findings are binding on appeal when they "'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We must defer to the findings of the trial court's that "'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting Johnson, supra, 42 N.J. at 161).

Here, the trial court found that Ms. Gonzalez knew that she had the right to refuse consent because she signed the consent-to-search form which expressly stated that she had been informed of that right. The court also pointed out that Ms. Gonzalez told the police that, if there were weapons on the premises, she wanted the officers to find them.

Although Ms. Gonzalez said that she did not read the form, Qualiano testified that she appeared to read the form. Ms. Gonzalez was asked whether she had any questions about the form and said that she did not. Ms. Gonzalez was present during the search and, at no point did she indicate that she wanted the police to stop their search.

We are satisfied that there is sufficient credible evidence in the record to support the trial court's determination that Ms. Gonzalez voluntarily consented to the search of her property.

III.

Defendant additionally argues that his sentence is excessive. Again, we disagree.

Here, the trial court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3(a). Defendant does not dispute the court's finding that he qualified for extended term sentencing as a persistent offender.

The trial court found the following aggravating factors: N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which defendant has been convicted); and N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors. The court additionally found that the aggravating factors substantially outweighed the mitigating factors.

Defendant argues that the court erred by imposing a fifteen-year sentence because the court merely characterized his prior record as a "moderate criminal history." Defendant also says that the court erred by noting that the assault weapon in his possession was "a blueprint for tragedy." He additionally argues that the court should have found a mitigating factor under N.J.S.A. 2C:44-1(b)(11) (imprisonment of the defendant would entail excessive hardship to defendant or his dependents).

We are convinced that these arguments are entirely without merit. The trial court's comment regarding defendant's criminal record was not inconsistent with the court's findings as to aggravating or mitigating factors and did not require imposition of a lesser sentence. Moreover, the court's comment regarding the weapon was made in the context of the court's general discussion of the specific crime for which defendant was being sentenced. Furthermore, defendant failed to establish a basis for a finding of mitigating factor eleven. While defendant had joint custody of his children, and has made child support payments, he stated on the record that his mother was caring for his children. Defendant failed to show that his incarceration would be an "excessive" hardship to his family.

We are therefore satisfied that defendant's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

 

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A-1065-07T4

April 7, 2010