STATE OF NEW JERSEY v. JAMES J EICHELE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3954-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES J. EICHELE,

Defendant-Appellant.

________________________________________________________________

April 14, 2011

Submitted March 21, 2011 - Decided

Before Judges Lisa and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-12-1851.

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

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

PER CURIAM

After his suppression motion was denied, defendant pled guilty, pursuant to a plea agreement, to four counts in the indictment against him, namely, (1) third-degree attempted burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-1; (2) third-degree burglary, N.J.S.A. 2C:18-2; (3) third-degree receiving stolen property, N.J.S.A. 2C:20-7; and (4) second-degree possession of a weapon by a previously convicted person, N.J.S.A. 2C:39-7b(1). For the second-degree offense, defendant was sentenced as a persistent offender to an extended term of fifteen years imprisonment with a five-year parole disqualifier. See N.J.S.A. 2C:44-3a and N.J.S.A. 2C:43-7a(3). The judge imposed five-year terms of imprisonment for each of the third-degree offenses, concurrent with each other and concurrent with the sentence for the second-degree offense. Therefore, defendant's aggregate sentence is fifteen years imprisonment with a five-year parole disqualifier.

Defendant argues on appeal:

POINT I

THE TRIAL JUDGE SHOULD HAVE GRANTED DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE SEARCH WARRANT WAS NOT SUPPORTED BY PROBABLE CAUSE TO BELIEVE THAT DEFENDANT'S HOME OR PERSONAL EFFECTS CONTAINED FRUITS OR EVIDENCE OF OTHER BURGLARIES.

POINT II

THE SENTENCING JUDGE ERRED IN IMPOSING AN EXTENDED TERM.

We reject these arguments and affirm.

The evidence that was the subject of defendant's suppression motion was seized from his residence pursuant to a search warrant. Defendant argues that the affidavit submitted in support of the search warrant application contained insufficient information to establish probable cause that evidence of a crime would be found in his home. What follows is a brief summary of the information contained in the affidavit.

On the night of September 26, 2008, the police caught defendant attempting to break into a residence at 5 Cascade Court in an age-restricted senior community in Brick Township known as Green Briar II. Defendant was wearing black gloves and had in his possession a flat-tip screwdriver and a small flashlight. A police tracking dog was brought to the scene and traced defendant's steps to another residence in the development, at 124 South Everest Drive, where it was determined that another burglary had occurred. The rear sliding door at that residence had been forced open. Some items of jewelry found on defendant's person were identified by the occupant of 124 South Everest Drive as items stolen from her residence. Defendant identified his vehicle, which was parked in an adjoining neighborhood. The vehicle was registered to defendant's live-in girlfriend.

Prior to the night of defendant's apprehension, multiple similar burglaries had occurred in the same area. Between September 2005 and September 26, 2008, at least 216 burglaries had been committed in ten communities in Middlesex, Monmouth and Ocean Counties, which bore the same modus operandi (M.O.). The affidavit described in detail the common M.O. The burglaries occurred in age-restricted senior communities on Fridays or Saturdays. The residence was usually located along a wood line which backed up to a major road or parking lot. The perpetrator would gain entry by prying a rear window, door or sliding door with what appeared to be a screwdriver or flat-edged tool. The perpetrator would remove only cash, jewelry and other items of high value, leaving behind traceable items or those of lesser value.

As a result of this string of burglaries, law enforcement officials in the affected communities formed a task force. On the night defendant was apprehended, twenty-eight officers were working as part of this task force. They were positioned at locations that the perpetrator had previously accessed and similar locations in the area. Through this surveillance, defendant was observed and apprehended. The affiant concluded that, based on his training and experience, "individuals involved in burglaries and receiving stolen property will often store the illicit proceeds in a safe and secure location such as their residence or a vehicle."

Based upon that affidavit, Judge Francis R. Hodgson issued a warrant authorizing the search of defendant's home and vehicle. In conducting the search, the police found in a duffle bag in defendant's garage jewelry and other items that had been stolen in other burglaries we have described. They also found a gun (which defendant was prohibited from possessing because of a prior conviction).

In a thorough and well reasoned oral decision rendered on May 14, 2009, Judge James Den Uyl found that the affidavit provided a sufficient basis to support the issuing judge's finding of probable cause. The judge correctly applied the presumption of validity that search warrants enjoy, see State v. Jones, 179 N.J. 377, 388 (2004), and properly extended substantial deference to the probable cause determination made by Judge Hodgson. See State v. Marshall, 123 N.J. 1, 72 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Judge Den Uyl noted that the affidavit established that the attempted burglary at 5 Cascade Court, for which defendant was caught in the act, and the burglary that had just been committed at 124 South Everest Drive, the fruits of which were found on defendant's person, bore the same M.O. as the numerous other burglaries that had been committed in the area over the last several years. Thus, there was a reasonable basis to believe that defendant had committed the other burglaries. Relying on State v. Pineiro, 369 N.J. Super. 65 (App. Div. 2004), the judge further found that "it was reasonable to infer the defendant's residence would contain proceeds from burglaries, either property he chose to keep or property in temporary storage pending resale." The judge therefore found that defendant failed to meet his burden of demonstrating that the search warrant was issued without probable cause.

The main thrust of defendant's argument is that the affiant's statement that, based on his training and experience, burglars often store the proceeds of their burglaries in a safe and secure location, such as their residence, did not provide a sufficient basis upon which to believe that the fruits of any other burglaries, committed before the night of September 26, 2008, would likely be in his residence. The basic flaw in defendant's argument is that he disregards or greatly undervalues the weight properly attributable to the M.O. evidence in the affidavit.

The widespread string of burglaries over an extended period of time involving the same M.O. were of sufficient magnitude to induce numerous law enforcement agencies to combine and form a task force in order to apprehend the perpetrator. Indeed, on the night defendant was caught, no less than twenty-eight members of the task force were assigned to the detail and were conducting surveillance toward that goal. The burglary defendant was attempting when he was caught, as well as the one he had apparently committed earlier that evening, fit the M.O. of the many previous burglaries.

This M.O. evidence was more than sufficient to establish a link between defendant's conduct on September 26, 2008 and the numerous prior burglaries. As we held in Pineiro, a judge considering a search warrant application in circumstances similar to these may reasonably infer that the thief still possessed some of the items stolen and that the thief's residence and vehicle were likely places "that contraband or evidence of the thefts would be found." Id. at 71.

We affirm Judge Den Uyl's order denying defendant's suppression motion substantially for the reasons he expressed in his May 14, 2009 oral decision.

We find no merit to defendant's argument that his sentence is excessive. The plea agreement provided that the prosecutor would seek an aggregate sentence of twenty years imprisonment with a ten-year parole disqualifier, and defendant would seek an aggregate sentence of fifteen years imprisonment with a five-year parole disqualifier. At the sentencing hearing, the prosecutor and defendant's counsel presented their arguments along those lines to the court. Judge Hodgson accepted defendant's position and imposed the aggregate sentence he had bargained for in his plea agreement and requested at the sentencing hearing.

We are satisfied that the judge's findings regarding aggravating and mitigating factors were based upon competent and credible evidence in the record, that the judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, and that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. Pierce, 188 N.J. 155, 169 (2006); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.