On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
King and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
Defendant was convicted by a jury of second degree robbery, in violation of N.J.S.A. 2C:15-1, and resisting arrest, in violation of N.J.S.A. 2C:29-2. A codefendant, James Michael Mazza, was acquitted of the robbery charge. On the robbery conviction, defendant was sentenced to an indeterminate term not to exceed 10 years to be served at the Youth Correctional Institution Complex. On the conviction for resisting arrest, defendant was sentenced to a concurrent 350 day term.
The robbery was committed upon Michael Sekulic, a taxicab driver. Sekulic picked up defendant and Mazza at Nardone's Bar in Avenel, one of several places the two young men had been drinking on the night of the crime. When the cab stopped at an intersection, defendant grabbed Sekulic around the neck, pulled his head by the hair and demanded his money. After a brief struggle, Sekulic placed his money ($135 to $140) into a hand (he could not tell who took the money but thought it was Mazza). Mazza then fled from the cab on foot. Defendant remained in the cab, demanded more money and struck Sekulic several times with his forearm on the back of his head. Defendant then also fled from the cab on foot.
Sekulic called his dispatcher and reported the robbery. The Woodbridge police responded to the scene and discovered two
sets of footprints in the snow leading a short distance to 25 Pershing Avenue in Iselin, where Mazza resided with his parents. The officers knocked and a short time later Mazza opened the door. The police observed that the clothing worn by defendant and Mazza matched Sekulic's description of the robbers' clothing. Consequently, the police placed both men under arrest.
After administering Miranda warnings, the police asked Mazza where the proceeds of robbery were hidden. Mazza stated that the money might be in the basement. Consequently, the police went into the basement where they observed mud on a cabinet door under the staircase. The police opened the door and $67 in bills, later identified as proceeds of the robbery, fell out of the cabinet.
Both defendants testified on their own behalf. Mazza testified that defendant suggested that they rob the taxicab driver, but that he urged defendant not to do it. This was corroborated by Sekulic's testimony that he thought he heard Mazza whisper: "Don't do it." According to Mazza, defendant nevertheless robbed Sekulic and attempted to hand the money to Mazza. However, Mazza refused to accept the money and fled from the cab.
Defendant testified that at one point during the evening Mazza suggested that they call a taxicab and try to "beat the taxicab driver" (a slang expression referring to the commission of a robbery). However, defendant had an alcohol blackout during the time period when the robbery was committed and, therefore, had no recollection of the crime.
On appeal, defendant argues that the trial court erred in denying his motion to suppress evidence of the proceeds of the robbery found in Mazza's basement. We agree with defendant that the warrantless search of Mazza's basement violated the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution. However,
we conclude that admission of the evidence obtained by that search ...