STATE OF NEW JERSEY v. RODNEY B. PERKINS

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0520-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RODNEY B. PERKINS,

          Defendant-Appellant.


                   Submitted October 31, 2019 – Decided November 25, 2019

                   Before Judges Alvarez and Nugent.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 15-06-0458.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Tamar Yael Lerer, Assistant Deputy Public
                   Defender, of counsel and on the briefs).

                   Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                   attorney for respondent (Michele C. Buckley, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      Defendant Rodney B. Perkins appeals the trial court's order denying his

motion to suppress cocaine, heroin, and other items related to narcotics sales,

seized pursuant to a search warrant. After the denial, defendant entered a guilty

plea to second-degree possession of cocaine with intent to distribute,  N.J.S.A.

2C:35-5(a)(1), and 2C:35-5(b)(2). He was sentenced June 17, 2016, in accord

with the agreement to eight years imprisonment, subject to four years of parole

ineligibility. Defendant also contends the sentence was excessive. We affirm.

      As described in Plainfield Police Detective Christopher Fortunka's

twelve-page detailed affidavit submitted in support of the application for a

search warrant, he received intelligence from a reliable confidential informant

(CI) that "Black," later identified as defendant, was distributing cocaine from a

specified address. The CI also stated that defendant would drive the narcotics

to a meeting place with the buyers. Under Fortunka's direction, the CI made two

controlled buys.    During both, defendant was observed leaving from the

specified premises and meeting the CI in his car at a different location. During

one transaction, defendant drove a sedan, and during the second, he drove a

pickup truck. The officer learned during the investigation that the "current

subscriber for utilities" of the specified premises was a woman with whom

defendant was in a dating relationship.     Based on these and other details,


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including the officer's description of his extensive training and experiences over

nine years of service, a Law Division judge issued a no-knock warrant

authorizing a search of the premises, defendant's person, and two vehicles.

      The search warrant defined the area to be searched as "all areas of ingress,

access and egress" of the premises. The affidavit stated the detective witnessed

defendant placing suspected narcotics in the recycling bin to the rear of the

home. Defendant challenged the overall sufficiency of the affidavit, and the

search of the recycling bin specifically, at the motion hearing on the same basis

as he challenges the search on appeal. The Law Division judge found in his

cogent written decision on the motion that the recycling bin:

            was located within the rear yard, not on the curb or
            street out for collection. Therefore, the bin was in the
            home and curtilage, making the search of the bin valid.
            To ask police to secure a separate warrant for a bin
            located on the property already subject to search would
            be inefficient and unnecessary.

      At the time of sentence, defendant was fifty-two years old. He had been

convicted of nine prior indictables dating back to 1989, and sentenced to

probation and state prison, in the main for drug offenses. The sentencing judge

found aggravating factors three, six, and nine given defendant's "extensive"

prior criminal history, and further found mitigating factor eleven based on the

hardship his family, like all others of incarcerated persons, would experi ence

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during service of his sentence.     N.J.S.A. 2C:44-1(a)(3), (6), (9);  N.J.S.A.

2C:44-1(b)(11). The judge opined that defendant's sentence was reasonable, and

that he would otherwise face "a lot more time."

      Now on appeal, defendant raises the following points for our

consideration:

            POINT I
            THE AFFIDAVIT IN SUPPORT OF THE SEARCH
            WARRANT FAILED TO PROVIDE PROBABLE
            CAUSE TO SEARCH EITHER THE TARGET
            RESIDENCE OR DEFENDANT'S CAR.

            POINT II
            THE MATTER SHOULD BE REMANDED FOR
            ADDITIONAL FACTUAL FINDINGS AND A NEW
            DECISION REGARDING SUPPRESSION OF
            EVIDENCE BECAUSE THE TRIAL COURT DID
            NOT    RESOLVE A   CRITICAL   FACTUAL
            QUESTION.

      We begin our discussion with principles the Supreme Court recently

reiterated regarding search warrants.       The Court said:   "[a] search that is

executed pursuant to a warrant is 'presumptively valid,' and a defendant

challenging the issuance of that warrant has the burden of proof to establish a

lack of probable cause 'or that the search was otherwise unreasonable.'" State

v. Boone,  232 N.J. 417, 427 (2017) (quoting State v. Watts,  223 N.J. 503, 513-

14 (2015)). Furthermore, we "accord substantial deference to the discretionary


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determination resulting in the issuance of the warrant." Ibid. (quoting State v.

Jones,  179 N.J. 377, 388 (2004)). On review, we consider the totality of the

circumstances, and sustain the validity of the search so long as the issuing

judge's finding of probable cause relied on adequate facts. Ibid.

      In this case, defendant contends, in reliance upon Boone, that the issuing

magistrate did not have sufficient probable cause to believe that drugs would be

found either at the specified address or in defendant's vehicles. But when under

surveillance, defendant on several occasions drove to a meet site to sell drugs,

including the CI's two controlled drug buys. The officer said defendant drove

in one or the other of his vehicles to "pre-arranged meet locations, where he

engaged in hand-to-hand narcotics transactions with waiting individuals," and

returned home.    As a result of these observations, the officer concluded

defendant was engaging in narcotics distribution from the residence. A review

of the affidavit convinces that conclusion is warranted. The officer provided

sufficient information to establish probable cause to search "within the four

corners of the supporting affidavit[.]" State v. Marshall,  199 N.J. 602, 611

(2009) (quoting Schneider v. Simonini,  163 N.J. 336, 363 (2000)).

      Defendant challenges the bin as not having been included in the

description of the area to be searched in the warrant, and at a minimum, requires


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a remand to be established. We disagree. The search warrant affidavit refers to

the bin being located in the rear yard. The issue requires a common sense

analysis. See State v. Evers,  175 N.J. 355, 385 (2003) ("[T]he proofs in support

of a search warrant will continue to be examined in a common-sense and not a

hypertechnical manner."). No purpose would have been served in requiring the

procurement of a separate warrant for that area, included in the curtilage. The

argument that the bin may not have been located within the curtilage is based on

speculation, and not on any actual fact in the record. Thus, it was not a material

issue requiring a separate hearing. State v. Fuentes,  217 N.J. 57, 70 (2014). We

do not substitute our judgment for that of the sentencing court. Ibid. (citing

State v. O'Donnell,  117 N.J. 210, 215 (1989)). The court here provided a

qualitative analysis of the relevant sentencing factors, finding aggravating and

mitigating factors supported by the credible evidence in the record. State v.

Dalziel,  182 N.J. 494, 505 (2005). Thus, defendant has not established any

reason for us to disturb the sentence. Given defendant's sentencing exposure, as

a mandatory extended-term offender,  N.J.S.A. 2C:43-6(f), defendant received

an eminently reasonable sentence. It does not shock the conscience.

      Affirmed.




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