On appeal from the Superior Court, Law Division, Passaic County.
Conford, Pressler and King. The opinion of the court was delivered by Pressler, J.A.D.
[165 NJSuper Page 306] Defendants appeal from the denial of their petition for postconviction relief. The petition was based on their contention that they were entitled to the benefit of retroactive application of the principles of collateral estoppel enunciated by the New Jersey Supreme Court in State v. Gonzalez , 75 N.J. 181 (1977). We affirm. In our view neither the legal theory nor the public policy considerations upon which Gonzalez was based are evoked by the operative facts here. Moreover, we do not regard Gonzalez as having articulated "new law" but only as having applied well settled doctrine. Hence the question of retroactive
application of its holding does not properly arise at all.
Reduced to its common denominator, the legal problem posed both by this appeal and Gonzalez arises from the situation in which one of several codefendants adversely affected by the same search successfully moves to suppress the evidence thereby obtained against him on the ground that the search violated his Fourth Amendment rights and another codefendant fails to obtain the same relief. The question, stated in its broadest terms, is the extent to which, if at all, the other codefendant may ultimately claim the benefit of the favorable adjudication.
In Gonzalez the indictment of two codefendants was based upon evidence seized during the course of an automobile search. The search was held to be invalid on the suppression motion brought by only one of them, defendant Sanchez, against whom the indictment was dismissed when the State elected not to seek leave to appeal. At the time Sanchez made that motion his codefendant Gonzalez was in prison in New York State. When Gonzalez was returned to New Jersey for trial he moved for suppression of the evidence as to him, contending not only, as had Sanchez, that the search was invalid but also that the State was collaterally estopped from relitigating the issue of its validity. The collateral estoppel claim was rejected by the trial judge, who then proceeded to consider Gonzalez' suppression motion on its merits, reaching a conclusion contrary to that of the judge who had heard Sanchez' motion despite the virtual identity of the proofs. The validity of the search having been sustained, Gonzalez was then tried for the substantive offense and convicted. The conviction was reversed by the Supreme Court on the rationale that in the precise circumstances before it, including Gonzalez' physical inability by reason of his out-of-state incarceration to have joined in Sanchez' motion, "the basic goal of fairness in the administration of justice is better served by requiring consistency in outcome."
75 N.J. at 195-196. The principle of collateral estoppel was invoked in support of this determination by way of suggesting that, in limited situations at least, the rule of mutuality, abandoned as a sine qua non for applicability of the doctrine in civil matters, might also be deviated from in criminal matters.*fn1
In our view comparison of the facts here with those in Gonzalez readily demonstrates the inapplicability to the case before us of the Gonzalez result. In this case an indictment was returned against six defendants charging them with various gaming offenses. The indictment was based on evidence obtained during a warranted search of an apartment. The three defendants here, referred to for convenience as the Boyd defendants, made an oral application during the calendar call for leave to file an untimely motion to suppress. The judge, relying on R. 3:5-7(a), denied the motion on the ground that good cause had not been shown to warrant an enlargement of the time requirements of that rule. That determination, which we are satisfied was wholly unexceptionable, was not then contested by way of a motion addressed to this court seeking leave to appeal. Nor was the propriety of that determination ever subsequently contested. Thus, insofar as the Boyd defendants were concerned there was never an adjudication addressed to the validity of the search at all but only one denying them the opportunity to make an untimely challenge. Several months later the other three defendants, referred to as the Roane defendants, without seeking preliminary leave to so do, simply moved before another judge to suppress the evidence obtained in the common
search. The timeliness issue was not raised by the prosecutor until after the motion was fully heard, and the judge refused to consider that issue because it was itself untimely raised. The suppression motion was then granted on its merits, the judge concluding that the warrant had been overbroad in identifying the persons subject to the authorized search. The State did not seek leave to appeal but moved to dismiss the indictment as to the Roane defendants. Some four months after the granting of the suppression motion, the Boyd defendants, later claiming to have been then unaware of the disposition as to the Roane defendants, went to trial and were convicted. No direct appeal was taken. This application, seeking post-conviction relief, was made shortly after the Gonzalez opinion was rendered.
The absence here of the critical motivating factors of Gonzalez are obvious. On its simplest level, there is not here implicated the offense to logic and sensibility which inheres in a situation, as in Gonzalez , where opposite conclusions are reached with respect to a claimed violation of the substantial constitutional rights of codefendants identically situated. The same search here was not, contrary to the facts in Gonzalez , declared valid by one judge in respect of one defendant and invalid by a different judge in respect of the other. As to the Boyd defendants, the merits of the search and seizure issue were never reached because they had failed to take those timely procedural steps upon which their right to raise the constitutional question depended.
It is implicit in our criminal jurisprudence that the failure of timely assertion even of constitutional rights may result in their waiver, and our rules of practice recognize that a meritorious challenge to an illegal search may be lost if not made when required. As Chief Justice Weintraub observed in State v. McKnight , 52 N.J. 35, 48 (1968), "So in criminal matters, we have rules within which a defendant must assert his rights, even though they may be of ...