On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-08-0774 and 06-08-0773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges A. A. Rodríguez and Payne.
Following a jury trial, defendant, Khori Williams, was convicted of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and of fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d. Following his conviction for those crimes, pursuant to agreement, defendant pled guilty to a separate indictment charging second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. He was sentenced to a term of imprisonment of five years for unlawful possession of a weapon, to a concurrent term of eighteen months for possession of a defaced weapon and to a concurrent term of five years for the second-degree "certain persons" crime. On appeal, defendant raises the following issues:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S APPLICATION FOR A MISTRIAL.
At the suppression hearing conducted in this matter, it was established by Elizabeth police officer Raul DeLaPrida that, on April 5, 2006, at approximately 3:30 to 4:00 a.m., he and Elizabeth police officer Franklin Idrovo were on patrol in plain clothes at a housing complex located at 400 Irvington Avenue as the result of citizen complaints of trespassers and past arrests at the location arising from drug sales and violent crimes. While on the fourth floor of the building, the officers observed Reinaldo Bonilla exit from one of the apartments, "sweating profusely" and holding a handgun in his left hand. DeLaPrida recognized Bonilla from a recent arrest for narcotics distribution. As Bonilla started walking toward the officers, they identified themselves and ordered Bonilla to stop. Bonilla ignored the police officers' order, running back toward the same apartment that he had just left.
According to DeLaPrida, Bonilla's actions suggested to him [t]hat there's possibly somebody else in the apartment he wants to warn, possibly something else going on, some kind of criminal activity inside the apartment, or even somebody else is hurt in that apartment.
DeLaPrida also recognized a possibility that somebody had already been shot in the apartment -- a possibility that was heightened by the fact that Bonilla was a known drug dealer and that he was armed. The officers handcuffed Bonilla before he could re-enter the apartment and called for backup. A post-arrest search disclosed a silver handgun in Bonilla's possession as well as sixty-seven baggies of cocaine.
DeLaPrida then knocked on the apartment's door "to check if anybody was hurt inside or any . . . activity was going on." Victoria Tankard, defendant's aunt, responded. DeLaPrida testified that he identified himself as a police officer and asked for permission to enter, which was given. According to DeLaPrida, while he was speaking to Tankard about what he had just observed, DeLaPrida observed two adult males inside the apartment run from one bedroom, across a hall, and into another bedroom. DeLaPrida testified that he alerted his partner Idrovo to what was occurring and then ran down the hall to the bedroom into which the two men had run, observing two males and two females lying in bed with the covers pulled over their heads. The men were fully dressed with their boots on. DeLaPrida, who had drawn his gun as he approached the bedroom, ordered the four out of the bed and out of the bedroom. Idrovo then patted down the men, finding a handgun on defendant, as well as another handgun and marijuana on the other man.
According to DeLaPrida, and as confirmed by Victoria Tankard, he then obtained written consent from Aaliya Tankard, Victoria's daughter, to search the bedroom. The State did not enter a consent to search form into evidence at the suppression hearing or at trial. However, no additional evidence was obtained as the result of the search. Bonilla, defendant, and the third man were then taken to police headquarters and charged with various offenses.
Victoria Tankard's testimony differed from that of DeLaPrida. She testified that she was awakened by a knock on the door and a command that it be opened. Upon obeying the command, two men whom she later determined to be police officers ran past her and into the apartment. When she asked who they were looking for, the officers identified themselves as police, but then kept on going. Tankard testified that, at that point, she stated that she was a paralegal and told the police "that's illegal what you're doing." She then testified that one of the officers explained that they had just detained an Hispanic male with a gun and drugs on him, and the officer inquired whether Tankard was safe.
Tankard testified further that she called her employer, Randy Davenport, a criminal defense attorney, who advised her to tell the police to leave because they lacked a warrant. Tankard then testified that the officers requested that she sign a consent to search form, which she refused to do. Tankard said the officer explained that if she gave consent and he found anything illegal, "I'll put it all on the Hispanic boy outside," apparently referring to Bonilla. Tankard testified that the officers searched the apartment without her consent.
Attorney Davenport, who also testified at the hearing, stated that when Tankard called him, the police had already detained the three men, and he confirmed that he advised Tankard not to consent to a search. Davenport then spoke to DeLaPrida on the telephone, who told him that if Tankard consented to the search and the police found anything in the apartment, they would not charge the women, whereas if a warrant were required and evidence of criminal activity were found, everyone would be charged. After that conversation, Davenport advised Tankard that "if there is nothing in the house go ahead and consent." Tankard told Davenport, "I don't think ...