On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-05-006001.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 3006
Before Judges Lintner, S.L. Reisner and C.L. Miniman.
This appeal requires us to address for the first time the issue of whether evidence of a defendant's confession, made at the police station, must be suppressed because the police arrested him pursuant to an arrest warrant but without a search warrant for the third party's residence in which they found him. Applying New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed. 2d 13 (1990), we conclude that the illegal search does not justify suppression of defendant's confession, and we affirm his conviction.
Following a jury trial, Darnell Bell was convicted of murder and related offenses. His conviction was affirmed on appeal, State v. Bell, No. A-4932-99T4 (App. Div. October 10, 2002), certif. denied, 175 N.J. 433 (2003). He now appeals from a trial court order denying his petition for post-conviction relief (PCR).
The details of the crime are set forth in our earlier opinion and need not be repeated here. For purposes of this opinion, these are the pertinent facts. Elizabeth police officers obtained a valid warrant for defendant's arrest in connection with the shooting death of Stephanie Hosley. When the police were unable to find defendant at his residence, they went to defendant's aunt's house at 933 Olive Street, where they had reason to believe defendant stayed on occasion. They did not have a warrant to search for defendant at this address.
On this record, there is a factual dispute whether the aunt voluntarily admitted the police or whether they entered without her consent. There is also an issue as to where defendant lived. In support of his PCR petition, defendant submitted the report of an investigator who had interviewed the aunt.
According to the report, the aunt told the investigator that when she opened the door, the police asked for defendant and then "just walked in," although she told them that defendant was not "home." Although there is some evidence that defendant lived at 933 Olive Street, and his certification in support of his PCR does not deny that he lived there, we assume for purposes of this opinion that the house was not his residence for Fourth Amendment or State constitutional purposes.*fn1
The police did not discover any evidence of the crime during their search. However, they found defendant hiding in the attic, arrested him, and brought him to police headquarters.
Three hours later, he signed a waiver of his Miranda*fn2 rights and confessed to shooting the victim. Following a pretrial evidentiary hearing at which defendant and the arresting officer testified, Judge Barisonek held that the confession was voluntary and was not the product of police coercion or other improper tactics.*fn3 We upheld that ruling on defendant's direct appeal.
In his PCR petition, defendant's principal contention was that his confession was the result of an arrest made pursuant to an unlawful search and that his trial counsel was ineffective for failing to raise that issue at the Miranda hearing. In a lengthy, detailed and cogent oral opinion, placed on the record on February 22, 2005, Judge Barisonek rejected that contention, holding that under New York v. Harris, supra, an otherwise lawful arrest made by entering the premises without a search warrant did not justify suppression of defendant's confession.
On this appeal, defendant raises the following arguments:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL AND APPELLATE LEVELS.
B. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND ...