On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-12-1204.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and Baxter.
Defendant Kenny Frias appeals from an October 24, 2005 order denying his first petition for post-conviction relief (PCR). He presents the following arguments for our consideration:
I. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
II. AN EVIDENTIARY HEARING IS NECESSARY TO DECIDE WHETHER A REASONABLE PROBABILITY EXISTS IN LIGHT OF COUNSEL'S ERRORS AND NEWLY DISCOVERED EVIDENCE THAT THE RESULT OF THE PROCEEDING WOULD HAVE BEEN DIFFERENT.
III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE FOLLOWING AN ENTRY INTO A THIRD PARTY'S HOME PURSUANT TO AN ARREST WARRANT.
IV. THE TRIAL COURT ERRED IN RELYING ON THE RULE OF APPARENT AUTHORITY IN DENYING DEFENDANT AN EVIDENTIARY HEARING.
V. DEFENDANT WAS DENIED HIS RIGHT TO A JURY TRIAL WHEN HE WAS SENTENCED ABOVE THE PRESUMPTIVE TERM BASED ON FACTS NOT SUBMITTED TO THE JURY.
We agree with defendant's contentions in Points I, II and IV, and remand for an evidentiary hearing. State v. Preciose, 129 N.J. 451, 459-64 (1992). We need not reach the argument defendant presents in Point III because the trial court will be reconsidering on remand its previous denial of defendant's motion to suppress. We reject the sentencing argument presented in Point V.
On August 6, 1996, approximately 390 guns were stolen from Precinct 75 of the New York City police department in Brooklyn.
A judge of the United States District Court for the Eastern District of New York issued a federal arrest warrant for Regino Luis Frias (Regino)*fn1 under the belief that Regino had stolen the guns. New York police also issued a wanted poster with a picture of Regino on it. The poster stated that "subject is driving a late model gray Maxima Station Wagon NY Lic. No. M10-ODF. Information is that subject is in a motel in New Jersey . . . ."
The Clifton police department was notified of the arrest warrant. A confidential informant (CI) had told police that Regino was residing at 131 Mahar Avenue in Clifton with his brother defendant Kenny Frias, and that defendant had been using a green Honda that was parked outside that address. Consequently, police went to the Mahar Avenue address on August 14, 1996 to execute the arrest warrant for Regino. Detective Stuart Kennedy testified at the suppression hearing that he spoke with the landlord of the building, who resided on the first floor of the two-family, two-story structure. According to Kennedy's testimony, the landlord identified a picture of Regino, said that Regino lived in the apartment on the second floor, and voluntarily gave police a key to the apartment. Kennedy testified, as did Officer Michael McLaughlin, that they did not hear any voices, see any lights, or hear or see anything else that would have indicated that there was anybody inside the second floor apartment. Nonetheless, Kennedy and McLaughlin used the key to enter the apartment. Upon entering, they engaged in a protective sweep. During the course of that sweep, they saw in plain view a large amount of money and narcotics paraphernalia. No one was present in the apartment. One of the supervising officers ordered police to suspend further activity and to exit the apartment until they were able to secure a search warrant. A municipal court judge issued the warrant about two hours later, at 1:15 a.m. on August 15, 1996.
Shortly before the warrant was issued, a 1995 Toyota pulled up to the house. Defendant was a passenger in that car. Police stopped him, frisked him and asked him to identify himself. A police officer returned with a search warrant and gave defendant a copy. The resulting search of the apartment produced more than six ounces of heroin, drug paraphernalia, more than ...