On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-09-2255.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Wefing, Parker and Lyons.
Defendant Christian Vasile (Vasile) appeals a March 2, 2006, judgment of conviction sentencing him to an aggregate custodial term of seven years, ordering restitution to various victims, and assessing the appropriate fines and penalties. We affirm.
The following factual and procedural history is relevant to our determination of the issues advanced on appeal. On June 16, 2004, Detective Gary Kronenberger (Kronenberger) of the Keansburg Police Department responded to a reported burglary in Keansburg. The home belonged to Norma Rahner (Rahner), who reported to the detective that she left her home at approximately 2:30 p.m. and, upon her return, discovered that her home was burglarized. Rahner reported that jewelry, two antique guns, foreign currency (either Canadian or Hungarian), and a blue cooler bag were stolen from her residence.
Kronenberger found no signs of forced entry. He concluded that entry was gained through the back window. He "dusted" the window for fingerprints and successfully lifted a partial latent fingerprint from the window.
Several eyewitnesses were also identified by the police. Dorothy Lupino (Lupino) testified that she saw defendant and Michelle VanDuysen (VanDuysen) in front of Rahner's house at approximately 2:50 p.m. Lupino worked as a taxi dispatcher and knew defendant as he worked with her for a couple of months. She saw VanDuysen, wearing a pink shirt and dungarees, walk to Rahner's door, while defendant waited at the end of the property.
Another witness, Anthony Riccardo, testified that he saw an individual fitting the physical description of defendant, who was wearing jean shorts, a hat, and had a tattoo on his right leg, in front of Rahner's house.
Later, the fingerprint lifted from the scene was compared with the suspects' fingerprints, including those of VanDuysen. At the police station, the police identified the fingerprint as belonging to VanDuysen. The fingerprint card was then sent to the Monmouth County Prosecutor's Office, where it was confirmed that the print belonged to VanDuysen.
On June 17, 2004, VanDuysen was arrested at approximately 1:30 p.m. She was given her Miranda warnings and she signed a waiver. VanDuysen then gave a statement to the police implicating defendant. That statement was then utilized by Kronenberger in his affidavit in support of a search warrant to search defendant's room in the Belvedere Hotel. A search pursuant to a warrant of the hotel room yielded jewelry, a blue cooler, and a woman's pink shirt that VanDuysen had been wearing that day. Following the execution of the search warrant, defendant was arrested. When arrested, he was found with Canadian currency and a tattoo on his right leg.
Detective Robert Sheehan (Sheehan) was working the 7:00 p.m. to 3:00 a.m. shift on June 19, 2004. When Sheehan reported to work that evening, he met with Captain Mike Pigott (Pigott) and Kronenberger. Kronenberger advised Sheehan that he was conducting a burglary investigation, and that he had received some information that there were some handguns concealed in the ceiling of the second floor common bathroom at the Belvedere Hotel.
At approximately 7:30 p.m., Pigott and Sheehan arrived at the Belvedere Hotel without a search warrant for the second floor common bathroom. The manager was not around, and the front door was locked. A resident was looking out of the second floor window, however, and Sheehan asked that resident to come down and open the door and let them in the hotel. The hotel has three floors, each with approximately thirteen rooms. The second floor has two common bathrooms, which contain a toilet and a shower. To Sheehan's knowledge, anyone entering the hotel could use the common bathrooms.
Sheehan entered one of the second-floor bathrooms, whose door was propped open and no key was needed for entry. The bathrooms did not contain any personal items. The bathroom had a drop ceiling of standard two-by-four-foot foam ceiling tiles, suspended by a track system. When Sheehan popped a tile above the sink, he saw and retrieved a clear plastic bag which contained handguns.
Subsequent police investigation revealed that defendant and VanDuysen were also involved in three other burglaries. Based upon the evidence produced by the police, the grand jury indicted defendant and VanDuysen for burglarizing four homes.
Defendant Vasile was charged on Monmouth County Indictment Number 04-09-2255 as follows: third-degree conspiracy, contrary to N.J.S.A. 2C:5-2 (count one); third-degree burglary, contrary to N.J.S.A. 2C:18-2 (counts two, four, and six); third-degree theft, contrary to N.J.S.A. 2C:20-3(a) (counts three, five, seven, and nine); second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count eight); second-degree possession of a weapon by certain persons not to have a weapon, contrary to N.J.S.A. 2C:39-7(b) (count ten). Co-defendant VanDuysen was jointly charged in all counts, except count ten.
Prior to defendant's trial, VanDuysen entered a plea of guilty. She agreed to testify against defendant at trial. In addition, those counts relating to the Rahner burglary on June 16, 2004, were severed and trial on those charges was scheduled to begin on October 25, 2005. The remaining counts of the indictment related to the three other burglaries.
A pretrial motion to suppress evidence was heard on June 3, 2005. Counsel for defendant argued that the police should have secured a warrant before searching the bathroom in the Belvedere Hotel where the guns were found. The State argued that there was no reasonable expectation of privacy in the common bathroom. The trial court found that although the hotel door itself was locked, once inside the hotel, everybody had access to the common bathrooms and noted that there were no personal items in the bathrooms. Therefore, the court denied the motion to suppress evidence because defendant had no expectation of privacy with respect to the common bathroom.
On October 27, 2005, after a jury trial, defendant was found guilty of third-degree conspiracy and third-degree theft. Defendant was found not guilty of second-degree burglary and the weapons charge was dismissed.
On January 30, 2006, defendant entered pleas of guilty to counts three, five, and seven pursuant to a plea agreement. Pursuant to the plea agreement, counts three, five, and seven were amended to charge third-degree receiving stolen property. The State agreed to dismiss counts two, four, and six against defendant. The State also agreed to "recommend a maximum sentence on all outstanding charges including convictions at prior trial, not to exceed 7 years in the aggregate." The State further agreed to withdraw its motion for an extended term. After questioning defendant and finding that he was knowingly and voluntarily entering the pleas, and that there was a factual basis for the pleas, the trial court accepted the guilty pleas.
On March 2, 2006, defendant was sentenced. The trial court found the aggravating factors "to be the risk that the defendant will commit another offense; the extent of his prior record; and the seriousness of the offenses [of] which he has been convicted; and the need to deter this defendant and others from violating the law." Therefore, the court concluded that the aggravating factors outweigh the mitigating factors. And this was a negotiated plea. I also think that a consecutive sentence is necessary here.
These were separate offenses. The defendant continued to commit offenses after he was found -- well he was found guilty of a conspiracy and a theft, and then the others are receiving stolen property. And the record shows that he continued to receive property from others who were burglarizing and stealing from people. And he took those items and sold them for either drugs or money, or whatever possible.
For the conviction on count one, the conspiracy charge, defendant received four years. For count nine, a theft charge, defendant received four years to run concurrent with count one. For the plea on counts three, five, and seven, theft charges, defendant received three years to run concurrent with each other, but consecutive with counts one and nine. Defendant was also assessed fines, restitution, and ordered to give a DNA sample.
Defendant subsequently filed a motion for reduction of sentence. On May 12, 2006, the trial court heard argument and denied defendant's motion. Defendant filed this appeal on May 22, 2006.
In his appeal, defendant raised the following points for the court's consideration:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE DETECTIVE SHEEHAN'S INITIAL ENTRY INTO THE BELVEDERE HOTEL WAS PRETEXTUAL AND WITHOUT LEGAL JUSTIFICATION, AND BECAUSE THE DEFENDANT ...