STATE OF NEW JERSEY v. KENNETH G. MURILLO

 

(NOTE: The status of this decision is Published.)

                                NOT FOR PUBLICATION WITHOUT THE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-0184-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KENNETH G. MURILLO,

     Defendant-Appellant.
____________________________

                    Submitted December 2, 2019 – Decided December 11, 2019

                    Before Judges Fasciale and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment Nos. 17-09-
                    1087 and 18-01-0045.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Rochelle Mareka Amelia Watson, Assistant
                    Deputy Public Defender, of counsel and on the brief).

                    Christopher L.C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for respondent (Patrick F.
                    Galdieri, II, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from his conviction for second-degree unlawful

possession of a handgun,  N.J.S.A. 2C:39-5(b)(1).1 Police found the gun stashed

in a wall of a commercial establishment on a public street, where defendant had

no privacy interest. He mainly contends that Judge Benjamin S. Bucca, Jr.

erroneously denied defendant's motion to suppress. We disagree and affirm.

      The judge conducted a hearing, denied the motion to suppress, and

rendered an oral opinion. Defendant then pled guilty. In accordance with his

plea agreement, Judge Bucca sentenced defendant to a five-year prison term

with a forty-two month parole disqualifier.

      On appeal, defendant argues:

            POINT I

            THE POLICE DID NOT POSSESS REASONABLE
            SUSPICION SUFFICIENT TO STOP [DEFENDANT]

1
   Defendant was charged under indictment number 17-09-1087 with second-
degree unlawful possession of a handgun,  N.J.S.A. 2C:39-5(b)(1) (count one);
second-degree possession of a firearm for unlawful purposes,  N.J.S.A. 2C:39- -
4(a)(1) (count two); third-degree terroristic threats,  N.J.S.A. 2C:12-3(a) (count
three); fourth-degree aggravated assault,  N.J.S.A. 2C:12-1(b)(4) (count four);
and fourth-degree possession of hollow-nosed bullets,  N.J.S.A. 2C:39-3(f)
(count five). Under indictment number 18-01-0045, defendant was charged with
fourth-degree possession of marijuana,  N.J.S.A. 2C:35-10(a)(3) (count one);
third-degree possession of cocaine,  N.J.S.A. 2C:35-10(a)(1) (count two); third-
degree possession of Xanax,  N.J.S.A. 2C:35-10(a)(1) (count three); and fourth-
degree hindering the apprehension or prosecution of another,  N.J.S.A. 2C:29- -
3(a)(7) (count four). Defendant also pled guilty to fourth-degree possession of
marijuana,  N.J.S.A. 2C:35-10(a)(3), which is not the subject of this appeal.
                                                                         A-0184-18T4
                                       2
             AND THE EVIDENCE OBTAINED AFTER THE
             UNCONSTITUTIONAL    SEIZURE     WAS
             INADMISSIBLE UNDER THE DOCTRINE OF
             PLAIN VIEW.

We conclude that defendant's argument is without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). We nevertheless add the

following brief remarks.

      "[O]n appellate review, a trial [judge's] factual findings in support of

granting or denying a motion to suppress must be upheld when 'those findings

are supported by sufficient credible evidence in the record.'" State v. S.S.,  229 N.J. 360, 374 (2017) (quoting State v. Gamble,  218 N.J. 412, 424 (2014)). This

court "accord[s] deference to those factual findings because they are

substantially influenced by [an] opportunity to hear and see the witnesses and to

have the feel of the case, which a reviewing court cannot enjoy." State v. Lamb,

 218 N.J. 300, 313 (2014) (alteration in original) (internal quotation marks and

citations omitted).   This court "should not disturb a trial [judge's] factual

findings unless those findings are 'so clearly mistaken that the interests of justice

demand intervention and correction.'" S.S.,  229 N.J. at 374 (quoting Gamble,

 218 N.J. at 425). "[A] trial court's legal conclusions are reviewed de novo."

Lamb,  218 N.J. at 313.



                                                                             A-0184-18T4
                                         3
      Here, police responded to a 9-1-1 call and spotted defendant. The officer

asked defendant if he was in a fight, defendant replied no, and the officer left

the scene. Twenty minutes later, police returned in response to another call,

specifically involving a gun. They detained defendant and two others—and

asked for their identification. In conducting a protective sweep of the area,

police then found the gun.

      The law on whether one has an expectation of privacy is settled. "One

seeking to invoke the protection of the [F]ourth [A]mendment must establish

that a reasonable or legitimate expectation of privacy was invaded by

government action." State v. Marshall,  123 N.J. 1, 66 (1991). To determine

whether an expectation of privacy is protectable, federal courts "employ[] a two-

prong test: first, a person must have exhibited an actual expectation of privacy,

and second, the expectation must be one that society is prepared to recognize as

reasonable or legitimate." State v. Sencion,  454 N.J. Super. 25, 32 (App. Div.

2018). In New Jersey, "[o]ur Supreme Court, however, has defined an objective

test asking only whether a person has a reasonable expectation of privacy." Ibid.

Such "'[e]xpectations of privacy are established by general social norms,' and

must align with the 'aims of a free and open society.'" State v. Taylor, 440 N.J.




                                                                         A-0184-18T4
                                        4 Super. 515, 523 (App. Div. 2015) (quoting State v. Hempele,  120 N.J. 182, 200-

01 (1990)).

      Here, defendant had no reasonable expectation of privacy in the public

wall, which was located on a sidewalk accessible to any person. Therefore, the

seizure of the gun—even though not in plain view—was constitutional. Indeed,

the judge found that there was no reasonable expectation of privacy in the wall

because the firearm was hidden in a public area to which the general public has

access.

      Affirmed.




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