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State v. Austin

May 19, 2009

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
AL-MUIZZ AUSTIN, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-06-1445.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 4, 2009

Before Judges Parrillo and Lihotz.

Defendant Al-Muizz Austin appeals from a December 2, 2005 Law Division order denying his motion to suppress evidence, i.e., controlled dangerous substances (CDS), found in his bedroom during a parole officer's home visit. Following a hearing, Judge Kennedy denied motions to suppress filed by defendant and co-defendant Sharif Wright. Thereafter, pursuant to the terms of a plea agreement with the State, defendant entered a guilty plea to two counts of third-degree possession of CDS (cocaine and heroin), N.J.S.A. 2C:35-10a(1). The State agreed to dismiss the remaining counts of the indictment, which included third-degree charges for conspiracy to possess CDS, N.J.S.A. 2C:5-2; two counts of possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and two counts of possession of CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7.*fn1

Defendant was sentenced to two concurrent three-year terms of imprisonment, which were to run concurrently to the sentence resulting from defendant's parole violation. Additionally, defendant's driving privileges were suspended for two years and applicable fines and penalties were assessed.

On appeal, defendant argues:

THE HOME VISIT, WHICH WAS PLANNED AF[T]ER THE PAROLE OFFICER HEARD THAT DEFENDANT HAD BEEN CHECKED FOR WARRANTS[,] WAS A PRETEXT TO ALLOW A SEARCH OF DEFENDANT'S HOUSE AND BEDROOMS WITHOUT HAVING REASONABLE SUSPICION THAT THE CONDITIONS OF PAROLE HAD BEEN VIOLATED, IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE FOURTH AMENDMENT AND HIS RIGHT TO A FAIR TRIAL.

We affirm.

The following facts were presented through the testimony of Senior Parole Officer John Larkin, who was the sole witness appearing at the suppression hearing. Defendant had been paroled in August 2004, and received instruction regarding the supervisory conditions of parole prior to release. Defendant executed the mandatory supervision certificate, which contained the discussed terms. In pertinent part, the agreement requires a parolee to:

B. . . . [6] permit the assigned parole officer to visit [him] at any time at home or elsewhere and permit confiscation of any contraband observed in plain view by the parole officer [and]

F. . . . [2] submit to a search conducted by the assigned parole officer, without a warrant, of [his] person, place of residence, vehicle or other personal property at any time the assigned parole officer has a reasonable or articulable basis to believe that the search will produce contraband or evidence that a condition of supervision has been violated, is being violated or is about to be violated and permit the confiscation of any contraband.

On February 9, 2005, Larkin was assigned as defendant's parole officer. On April 12, 2005, while conducting warrant executions with his partner, Michael Gonzalez, and a Newark Police Department detective, Jose Gonzalez, Larkin heard defendant's name and address broadcast on the police radio. A Newark patrolman asked central communications for a warrant search on defendant.*fn2 Larkin responded to the transmission. First, he confirmed the request involved his parolee. Second, Larkin told the patrol officer that if defendant was not detained to inform him to return home because his parole officer would be visiting him later in the day. Larkin testified he had no prior intention of making a visit to defendant's home, but the patrolman's stop and warrant check prompted him to arrange to speak with defendant.

At approximately 1 p.m., Larkin and the two other officers arrived at defendant's residence. The officers found defendant standing outside the house speaking with two men in a parked car. Larkin approached defendant and the two men drove off. Larkin asked defendant to go inside. Larkin testified he needed to "verify that [defendant] did ...


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