STATE OF NEW JERSEY v. KENNETH P. SPEISER

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0T3

A-3716-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH P. SPEISER,

Defendant-Appellant.

________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARMINI LALOO,

Defendant-Appellant.

________________________________

August 28, 2013

Submitted August 7, 2013 Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-07-1076.

Joseph E. Krakora, Public Defender, attorney for appellant Kenneth P. Speiser (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Carmini Laloo (Daniel Brown, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent in both appeals (Brian Uzdavinis, Deputy Attorney General, of counsel and on the briefs).

PER CURIAM

These back-to-back appeals, which we consolidate for purposes of this opinion, arise from a sexual assault perpetrated by three forty-two to fifty-one-year-old individuals against a ten-year-old boy. Following a negotiated plea of guilty, defendant Kenneth P. Speiser and co-defendant Carmini Laloo appeal from their February 4, 2010 and January 29, 2010 convictions, respectively, on a charge of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), for which the judge sentenced Speiser to a fifteen-year term of imprisonment and Laloo to a fourteen-year term, both with an eighty-five percent parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We reject defendants' contention that the judge erred when he denied a joint motion to suppress the evidence seized pursuant to a search warrant of the third co-defendant, Peter Lisa's, home. We also reject both defendants' argument that their sentences were excessive. We affirm.

We incorporate here the facts and procedural history related in our unpublished opinion decided after co-defendant Peter Lisa appealed the denial of the same pre-trial motion to suppress evidence that defendants Speiser and Laloo appeal here. State v. Lisa, No. A-3896-09 (App. Div. Apr. 15, 2011), certif. denied, 208 N.J. 371 (2011).

Defendant Speiser raises the following issues on appeal:

POINT I: SINCE THE SEARCH WARRANT TO SEIZE THE VIDEOTAPES FROM CO-DEFENDANT'S GARAGE WAS BASED ON MERE SUSPICION THAT THEY CONTAINED EVIDENCE OF CRIMES, THE TAPES SHOULD HAVE BEEN SUPPRESSED AS BEING OUTSIDE THE SCOPE OF THE WARRANT.

POINT II: THE COURT ERRED IN DENYING MR. SPEISER'S MOTION TO SUPPRESS PHYSICAL EVIDENCE BECAUSE THE POLICE DID NOT HAVE CONSENT TO SEARCH LISA'S RESIDENCE, WHICH WAS THE BASIS OF THE SEARCH WARRANTS.

POINT III: THE FIFTEEN-YEAR SENTENCE, WITH AN 85% PAROLE DISQUALIFIER, WAS MANIFESTLY EXCESSIVE, AS IT WAS BASED ON FINDINGS OF AGGRAVATING AND MITIGATING FACTORS THAT WERE UTTERLY CONFUSED AND INADEQUATELY JUSTIFIED.

Defendant Laloo raises similar issues on her appeal:

POINT I: THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE PHYSICAL EVIDENCE SEIZED DURING THE EXECUTION OF A SEARCH WARRANT BECAUSE THAT WARRANT WAS BASED ON INFORMATION OBTAINED THROUGH AN UNLAWFUL SEARCH OF THE LISA RESIDENCE.

POINT II: THE LOWER COURT ERRED IN DENYING MS. LALOO'S MOTION TO SUPPRESS VIDEO EVIDENCE BECAUSE THE SEARCH WARRANT WAS UNSUPPORTED BY PROBABLE CAUSE.

POINT III: THE TRIAL COURT IMPROPERLY FOUND AGGRAVATING FACTORS AND IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MS. LALOO. (NOT RAISED BELOW).

In our prior opinion deciding Lisa's appeal, we discussed at length the reasons why we affirmed the trial judge's determination that the videotapes showing co-defendants Speiser, Lisa and Laloo repeatedly sexually abusing the young victim were not outside the scope of the search warrant. Id.(slip op. at 16-17). We also addressed the argument relating to Lisa's mother's consent to search Lisa's residence. Id.(slip op. at 12-16). We need not repeat that discussion here as our opinion deciding Lisa's appeal reviewed the same trial court decision issued after the same evidentiary hearing, and the controlling law has not changed. The law of the case doctrine precludes a second review of the suppression issues raised by these two co-defendants. Pressler & Verniero, Current N.J. Court Rules, comment 4 on R.1:36-3 (2013) ("'Law of the case' is a non-binding discretionary rule intended, unless there is good cause not to do so, to avoid relitigation before the same court of the same issue in the same controversy good cause including substantially different evidence, new controlling authority or a showing that the prior ruling was clearly erroneous."); seeUnited States v. Tierney, 448 F.2d 37, 39 (9th Cir. 1971) (determining that the law of the case established on appeal by the first defendant applied to the suppression issue raised in separate appeal by the co-defendant).

Our reliance on our prior decision in Lisa's appeal as the law of the case is particularly compelling as these defendants' objections to the search stem from Lisa's right to privacy in Lisa's home.

Finally, we reject both defendants' excessive sentence argument. We are satisfied that the judge correctly identified and applied the relevant aggravating and mitigating factors, that he articulated adequate reasons for imposing a sentence in the precise mid-point for a first-degree crime for Speiser and one year less for Laloo, and that the overall sentence in both cases is not manifestly excessive nor unduly punitive and does not constitute a mistaken exercise of discretion. SeeState v. Bieniek, 200 N.J.601, 607-09 (2010). Speiser's sentence, one year longer than that of co-defendants Laloo and Lisa, was completely appropriate given Speiser's greater culpability.

Affirmed.