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State v. Gonzalez

April 7, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN A. GONZALEZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-07-977.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 15, 2010

Before Judges Rodríguez and Yannotti.

Defendant John Gonzalez was tried before a jury and found guilty of violating N.J.S.A. 2C:39-7(b), which makes it unlawful for persons who have been convicted in this State of certain offenses to own, possess or control a firearm. The trial court granted the State's motion for imposition an extended term of incarceration as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), and sentenced defendant to fifteen years in jail, with a seven-year period of parole ineligibility. Defendant appeals from the judgment of conviction dated August 17, 2007. He raises the following issues for our consideration.

POINT I THE TRIAL COURT [ERRONEOUSLY] DENIED THE MOTION TO SUPPRESS, THEREBY VIOLATING DEFENDANT'S STATE CONSTITUTIONAL [RIGHT] TO BE FREE OF ILLEGAL SEARCHES AND SEIZURES (N.J. Const. Art. I, Para. 7)[.]

POINT II DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.

For the reasons that follow, we find no merit in these arguments and affirm.

I.

We begin with a summary of the evidence presented at the suppression hearing, which took place on August 31, 2006. Patrolman Leroy Marshall (Marshall) of the Lakewood Police Department (LPD) testified that, around 6:55 p.m. on November 20, 2004, he and Officer Robert Shomonovich (Shomonovich) responded to a report of a domestic violence dispute and possible possession of a firearm.

Marshall said that he and Shomonovich went to the door of the house and were greeted by defendant's mother, Ada Gonzalez. Ms. Gonzalez took the officers to an apartment at the side of the house, where defendant lived. The officers knocked on the door and defendant answered. The officers explained why they were there and asked Ms. Gonzalez to consent to a search for a weapon.

At that point, Patrolman Joseph Qualiano (Qualiano) arrived with a consent-to-search form. According to Marshall, Ms. Gonzalez read the form and signed it. The form stated that Ms. Gonzalez had been informed of her constitutional right "NOT TO HAVE A SEARCH MADE OF THE PREMISES[,]" which were identified on the form. The form also stated that Ms. Gonzalez had "AUTHORIZE[D]" Marshall and Shomonovich "TO CONDUCT A COMPLETE SEARCH OF [HER] RESIDENCE OR VEHICLE[.]" and "TO TAKE FROM [HER] RESIDENCE OR VEHICLE, ANY LETTERS, PAPERS, MATERIALS, OR OTHER PROPERTY WHICH THEY MAY DESIRE." The form additionally stated that the "WRITTEN PERMISSION" had been given "VOLUNTARILY AND WITHOUT THREATS OR PROMISES OF ANY KIND."

Marshall testified that Ms. Gonzalez was present while the officers searched the premises. Ms. Gonzalez told the officers that if there was a gun on her property, she wanted them to find it. The officers did not find anything of evidential value in the house. They searched the back yard. The officers found a black bag under a shed in the back yard. They opened it and found a firearm. Marshall said that no one told them to stop the search at any time.

Qualiano testified that Marshall and Shomonovich were present when he arrived at the Gonzalez home. Shomonovich approached him and asked if he had the consent-to-search form. Qualiano retrieved the form from his car and started to fill it out, indicating the premises to be searched. Qualiano stated that he had Marshall and Shomonovich ...


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