STATE OF NEW JERSEY v. ELEX HYMAN

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3869-15T1
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ELEX HYMAN,

        Defendant-Appellant.


              Submitted April 16, 2018 – Decided May 11, 2018

              Before Judges Sabatino, Ostrer, and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No.
              09-06-1015.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Michele A. Adubato, Designated
              Counsel, on the brief).

              Joseph D. Coronato, Ocean County Prosecutor,
              attorney for respondent (Samuel Marzarella,
              Chief Appellate Attorney, of counsel; Shiraz
              Imran Deen, Assistant Prosecutor, on the
              brief).

PER CURIAM

        Defendant Elex Hyman appeals from his conviction by guilty

plea following the Law Division's denial of his motions to suppress

evidence.       We affirm.
     This   appeal     has    its    genesis    in     telephone    conversations

intercepted pursuant to a court-authorized wiretap of a cellular

telephone utilized by co-defendant Alex Gantt.                      See N.J.S.A.

2A:156A-1 to -37.          In April 2008, the Ocean County Prosecutor's

Office conducted an investigation into a narcotics-distribution

network   led   by    Gantt.        Following    information       received      from

intercepted calls on May 5, 2008, detectives established mobile

surveillance     outside       Gantt's       residence     in    Howell.         The

conversations indicated Gantt and co-defendant Hiram Cotto would

be traveling in separate vehicles from New York to Gantt's home,

and Cotto would be transporting a large quantity of cocaine.

     Upon arrival, Cotto drove his car into Gantt's garage.                         A

Howell detective then pulled his marked vehicle into Gantt's

driveway, exited the car and announced, "Police!"                     One of the

individuals     in   the    garage   lowered     the    garage     door,   but    the

detective ran underneath before the door closed.                 Carrying a pink

plastic bag and running from the garage toward the entrance of the

home, Cotto disregarded the detective's orders to stop, and shut

the door behind him.        The detective then pushed or forced open the

door and ran into the house, joined by other officers.

     Cotto, Gantt, and several other individuals in the house,

were detained.       Following the issuance of a telephonic search

warrant, officers seized more than 900 grams of cocaine, currency

                                         2                                  A-3869-15T1
and drug paraphernalia from Gantt's house and garage.               Defendant

was not present at Gantt's home and was later arrested on a warrant

issued pursuant to intercepted telephone conversations with Gantt

between April and May, 2008.

     On June 3, 2009, an Ocean County grand jury returned an

indictment against thirteen individuals, charging defendant in one

of the seven counts with second-degree conspiracy to possess with

intent to distribute more than five ounces of cocaine, 
N.J.S.A.

2C:35-5(a)(1), 
N.J.S.A. 2C:35-5(b)(1) and 
N.J.S.A. 2C:5-2.

     Defendant    joined     in    "every    motion   filed    by     his    co-

defendants."     Pertinent    to    this    appeal,   in   separate    written

opinions, Judge Wendel E. Daniels denied defendant's motions to

suppress: (1) evidence seized at Gantt's residence; and (2) his

intercepted telephonic conversations with Gantt.

     After    considering    the   parties'    briefs,     including    police

reports, grand jury testimony, and the search warrant affidavit,

Judge Daniels denied the motion to suppress evidence seized at

Gantt's residence without holding an evidentiary hearing.                   In a

written decision issued on October 23, 2011, the judge found there

were no material facts in dispute that would warrant a testimonial

hearing.     In doing so, he rejected the defense argument that an

issue of material fact existed as to whether the Howell detective

forcibly entered Gantt's residence in pursuit of Cotto.

                                      3                                A-3869-15T1
     The    trial    court   determined     law    enforcement   officers    had

probable cause to believe Cotto had picked up cocaine in New York

and transported it to Gantt's home based on intercepted text

messages and telephone calls.          Having found the Howell detective

"had sufficient probable cause to believe that Cotto possessed

large quantities of cocaine[,] . . . when the detective chased

Cotto into Gantt's home it was to apprehend Cotto before he could

hide or destroy the cocaine in the pink plastic bag."                The court,

therefore, found exigent circumstances justified law enforcement's

initial warrantless entry of Gantt's residence.

     In a written decision issued on December 3, 2013, Judge

Daniels denied defendant's motion to suppress the contents of his

telephone conversations with Gantt.               The judge considered oral

argument, the submissions of counsel and, "at defendant's express

request on the record, the [c]ourt heard seven sessions involving

defendant    in     which    he   engages    in    a   [controlled    dangerous

substance]-distribution conspiracy."              Defendant did not, however,

identify a single instance where his calls should have been

minimized because they were personal.               Analyzing the applicable

sections    of    the   wiretap   statute,    N.J.S.A.     2A:156A-21(a)     and

N.J.S.A. 2A:156A-12(f), and our Supreme Court's decision in State

v. Catania, 
85 N.J. 418 (1981), the judge rejected defendant's



                                       4                                A-3869-15T1
claims that the State failed to extrinsically and intrinsically

minimize the communications.

     In    particular,    the    judge       found   the    State      extrinsically

minimized    intercepted        communications         by       "not    monitor[ing]

communications between approximately 1:00 a.m. and 7:30 a.m."                      The

judge also found the State appropriately "spot[-]monitored" calls,

thereby meeting "its prima facie burden of compliance with the

[intrinsic] minimization requirements."                In doing so, the court

observed    "[t]he     monitors'      diligence            in    minimizing       some

conversations of less than two minutes and even some pertinent

conversations is evidence of [a] good-faith effort to minimize."

Indeed,    defendant     conceded   "the       State    spot[-]monitored          even

conversations between suspected participants in the conspiracy."

     Following the trial court's rulings, defendant pled guilty

to an open indictment, and was sentenced to the statutory minimum

five-year term of imprisonment, 
N.J.S.A. 2C:43-6(a)(2). Defendant

preserved his right to appeal the trial judge's decisions regarding

the motions to suppress.        R. 3:5-7(d).

     On appeal, defendant raises the following arguments for our

consideration:

                 POINT I

                 DEFENDANT   WAS   ENTITLED   TO   A
                 TESTIMONIAL    HEARING    ON    THE
                 SUPPRESSION ISSUE AS MATERIAL FACTS

                                         5                                    A-3869-15T1
                WERE IN DISPUTE AND THE DENIAL OF
                SUCH A HEARING DENIED HIM HIS RIGHTS
                TO DUE PROCESS AND A FAIR TRIAL.

                POINT II

                THE WARRANTLESS ENTRY OF [CO-
                DEFENDANT] GANTT['S] RESIDENCE BY
                [THE HOWELL] DETECTIVE VIOLATED
                []DEFENDANT'S     RIGHT     AGAINST
                UNLAWFUL   SEARCHES  AND   SEIZURES
                GUARANTEED BY THE NEW JERSEY AND
                UNITED STATES CONSTITUTIONS.

                POINT III

                WIRETAP   CONVERSATIONS   INVOLVING
                [DEFENDANT]   SHOULD    HAVE   BEEN
                SUPPRESSED FOR FAILURE TO PROPERLY
                MINIMIZE THE INTERCEPTIONS.

    Our review of a trial court's factual findings in support of

granting or denying a motion to suppress is deferential, even

absent an evidentiary hearing.      State v. S.S., 
229 N.J. 360, 379

(2017).    Specifically,    our   review   is   limited   to   determining

whether "a trial court's factual findings are not supported by

sufficient credible evidence in the record."        Id. at 381.     We may

not reverse a court's findings of fact unless they are clearly

erroneous or mistaken.      Ibid.   However, we review issues of law

de novo.   State v. Gamble, 
218 N.J. 412, 425 (2014).

    Applying these standards, we discern no error, and affirm

substantially for the reasons expressed by Judge Daniels in his




                                    6                              A-3869-15T1
thorough and well-reasoned written opinions of October 23, 20111

and December 3, 2013.         We add the following brief remarks.

      Initially, we reject defendant's claim that a disputed issue

of fact exists regarding the manner of police entry into Gantt's

residence,    entitling       him    to   an    evidentiary      hearing.         See

R.   3:5-7(c);    State   v.        Kadonsky,    
288 N.J.    Super.   41,   45-46

(App. Div. 1996).       The Howell detective's entry into the house,

by   either   pushing    or    breaking        down    the    door,   was   not    an

unreasonable use of force where, as here, exigent circumstances

justified entry and reasonable use of force.                  See State v. Josey,


290 N.J. Super. 17, 22-23 (App. Div. 1996) (upholding entry into

the defendant's residence by breaking down the door where police

had observed defendant selling drugs on the street outside his

house).

      Therefore, the manner of entry does not create a material

issue of fact, under the circumstances of this case, because it

does not bear upon the claim being advanced.                  See State v. Behn,


375 N.J. Super. 409, 431 (App. Div. 2005) (citing State v. Henries,



1
  In affirming Gantt's direct appeal, in part from his conviction
on the same indictment here, another panel of our court upheld the
search of Gantt's residence without holding a testimonial hearing.
State v. Gantt, No. A-6014-12 (App. Div. July 20, 2015) (slip op.
at 6-9). While we agree with the reasons expressed by that panel,
we have independently considered defendant's arguments on appeal
before us, arriving at the same conclusion.

                                          7                                 A-3869-15T1

306 N.J. Super. 512, 531 (App. Div. 1997) (observing a material

fact   is   one   which   has    "some        bearing   on   the   claims     being

advanced")).       Further,     "[conclusory]       assertions     contained       in

defendant's counterstatement of facts are insufficient to create

a material factual dispute" for purposes of Rule 3:5-7(c).                    State

v. Hewins, 
166 N.J. Super. 210, 215 (Law Div. 1979).

       Nor are we persuaded by defendant's argument that the police

impermissibly created the exigency through unreasonable tactics.

Rather,     the   exigency    was   the       "result   of   reasonable      police

investigative conduct intended to generate evidence of criminal

activity."    State v. Hutchins, 
116 N.J. 457, 460 (1989); see also

State v. Stanton, 
265 N.J. Super. 383 (App. Div. 1993) (finding

police conduct was reasonable under the exigent circumstances

warrant exception where police received a tip that a suspect was

dealing drugs from a motel room, observed the suspect through the

window in plain view, and entered the room after knocking).

       After Cotto pulled his car into Gantt's garage, the Howell

detective attempted to stop Cotto and determine if the pink plastic

bag contained cocaine.        Approaching Cotto and identifying himself

as an officer was a reasonable investigative technique.                Further,

police were aware Gantt utilized surveillance cameras to monitor

the area outside his home.          Had officers waited until Cotto was

inside the house, Gantt and Cotto could have observed officers

                                          8                                 A-3869-15T1
approach   and   destroy   evidence.   Given   the   entirety   of   the

circumstances, the officers did not create the exigency.

    Affirmed.




                                   9                            A-3869-15T1