On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-06-0453.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2009
Before Judges Grall, Messano and LeWinn.
A jury found defendant Orion T. Brabham guilty of second-degree burglary, N.J.S.A. 2C:18-2a(1), b(1), second-degree robbery, N.J.S.A. 2C:15-1a, and fourth-degree theft, N.J.S.A. 2C:20-3a. The judge merged defendant's conviction for theft with his convictions for burglary and robbery, granted the State's motion for sentencing as a persistent offender on the robbery conviction, N.J.S.A. 2C:44-3a, and sentenced defendant to a ten-year term of imprisonment for burglary and a concurrent eighteen-year term for robbery. Both sentences are subject to terms of parole ineligibility and parole supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate fines, penalties and assessments.
Defendant primarily objects to the denial of his motions to suppress physical evidence seized by a New York parole officer during a search of his home and statements he made to New Jersey law enforcement officers. Accepting the judge's factual findings, we conclude that the physical evidence was properly admitted but the statements defendant made during a meeting he requested to negotiate a plea should have been excluded pursuant to N.J.R.E. 410.
At about half-past eight on the morning of February 21, 2006, Catherine Zahos heard a noise on the second floor of her home, which is located on Martinsville Road in Basking Ridge. After she called upstairs to find out who or what she had heard, a man she did not know ran down the staircase carrying a bundle. As he reached Zahos, he grabbed her hair and necklace, pushed her head down, dragged her to the living room and forced her to the floor. Threatening to kill her, he demanded money. He then went to the kitchen to get cash from her purse. Zahos followed and was again knocked to the floor. The intruder left with the bundle, but Zahos went outside and saw him leave in a green Altima with a New York license plate. An employee working in the Zahos family business, which is located behind the residence, also saw the man leaving with a bundle in a green Altima with a New York license plate.
When the police arrived at the Zahos home, they found damage to the rear door of the house leading from a breezeway to the kitchen and a piece of the broken lock on the kitchen floor. Zahos was shaking, smoking a lot and appeared to be "very distraught." The police were not able to obtain a fingerprint with sufficient detail to permit identification of a suspect. According to Zahos, jewelry, including a gold medallion with a starburst design on one side and a depiction of the Parthenon on the other, as well as rings, pins and crosses were taken. In addition, a.38 caliber handgun and a comforter were missing. Neither Zahos nor her employee was able to give more than a general description of the intruder or provide the number of his New York license plate.
Others saw a green Altima with a New York license plate in the vicinity of the Zahos home on the morning of the burglary. Cheryl Himmelrich, who lives about a five-to-ten minute drive from the Zahos property, was outside with her Labrador Retriever and approached the driver of a blue-green Altima with a New York license plate who backed into her driveway. He left after asking her about a family that did not live on her street. On the same morning, Debra Albanese was driving to work via Martinsville Road. She noticed a green Altima with New York plates in front of her car because it was being driven at varying speeds and saw the driver turn into a driveway and toward the back of the house. The following day, in response to a flier distributed by police stationed near that driveway, Albanese reported what she had seen.
None of these witnesses could identify defendant as the man they saw on the morning of the Zahos home invasion. The evidence linking defendant to the crimes was a gold medallion identified by Zahos as hers, which was recovered during a search of defendant's home conducted by his parole officer in New York, and statements defendant made to New Jersey law enforcement officers after he was incarcerated as a consequence of violating conditions of his parole in New York.
New Jersey law enforcement officers, who testified at trial, repeated what they recalled about statements defendant made during two meetings. In April 2006, defendant told the officers that they had done their job by finding the person that did this, meaning himself. In May, defendant told the officers that he got the idea to use the back door from a television show, described the odor of smoke in the home of an old lady, "laugh[ed] about the fact that [she] kept getting up and coming back after him," and spoke of an encounter in a driveway with a woman accompanied by a large dog that caused him to abandon his plan to burglarize a home in her neighborhood.
Defendant's testimony at trial contradicted the officers' account of their meetings and his statements. He denied meeting with them in April. Although he acknowledged a meeting in May, he contended that he was transported there from Rikers Island, could not refuse to go and, other than asking for his lawyer, had said nothing.
At trial, defendant also described his background and addressed circumstantial evidence pointing to him as the perpetrator of the Zahos burglary. He is a college graduate with a paralegal certificate and works for a real estate management company in Larchmont. He collects jewelry, is part Greek and acquired his gold medallion while visiting family in Greece. He lives with his wife and daughter. His lawyer introduced a "Navy" ring, which was seized by the parole officer along with Zahos's gold medallion, and defendant testified that the ring was a gift from his father-in-law. He also explained that the Altima is his wife's car, and during the work week she leaves it at a ferry terminal.*fn1
The jury found defendant guilty of burglary, robbery and theft of property with a value in excess of $500 but not guilty of taking a gun from the Zahos residence.
Defendant challenges the search. His attorney contends:
I. THE NEW YORK WARRANTLESS PAROLE SEARCH WAS UNLAWFUL BECAUSE IT WAS A PRETEXT TO AID NEW JERSEY DETECTIVES IN THEIR INVESTIGATION OF THE INSTANT BURGLARY.
In addition, defendant has filed a pro se supplemental brief in which he argues:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING DEFENDANT'S MOTION TO SUPPRESS THE WARRANTLESS SEARCH OF HIS HOME AND THE ITEMS SEIZED THEREIN BY PAROLE AND OTHER LAW OFFICERS.
A. The search of defendant's home was done by New York Parole Officers who were acting as agents of various New Jersey Law Enforcement agencies, not to ascertain proof of parole violations, but to unlawfully seek contraband and/or evidence in aid of prosecutions for criminal activity.
B. The search of defendant's home was conducted in violation of rules and regulations promulgated by the New York State Division of Parole, New York Criminal Procedure Law, and case law developed by New York courts.
The facts relevant to defendant's challenge to the admission of evidence seized from his home were presented at a pre-trial hearing on defendant's motion to suppress. Detective Jon Burger and Lieutenant Edward Byrnes of the Bernards Township Police Department, Sergeant Sean Brown of the Long Hill Township Police Department, New York State Parole Officer John Zwaryczuk and defendant testified.
Defendant was identified as a suspect in the Zahos crimes through the cooperation of several New Jersey police agencies investigating a series of residential burglaries in various municipalities. When the Zahos crimes were committed on February 21, 2006, defendant was on parole for a crime committed in New York and had been charged with a burglary in Middlesex County and released on bail.*fn2 Someone who saw the perpetrator of the Middlesex burglary leave the residence provided a New York license plate number of the car and selected defendant's photograph from an array.
On March 2 and 3, 2006, Burger and Brown traveled to defendant's home in Staten Island and saw him driving a green Altima with a license plate number matching the one they had acquired. On March 3, 2006, Byrnes obtained documentary evidence confirming that the State of Virginia had issued a driver's license to defendant on February 26, 2006, but the officers knew that defendant was on parole in New York.
Defendant had been on parole for armed robbery since September 2000. His parole had been revoked for failure to comply with his 9:00 p.m. to 7:00 a.m. curfew and failure to report in December 2005, but he was again released to complete service of his sentence on parole in early February 2006 when he responded to the Middlesex charge.
On March 6, 2006, Burger and Brown met with Zwaryczuk, who was then the supervisor of defendant's parole officer. Although it is not clear from the testimony whether Burger and Brown gave Zwaryczuk a copy of the Virginia driver's license they had obtained from that state, they told him that they had learned one had been issued. They also shared the information that led them to suspect defendant was involved in a series of residential burglaries in New Jersey, including one in which a.38 caliber handgun and jewelry were reportedly stolen.
When defendant was paroled in 2000, he signed a document acknowledging his agreement to abide by specified conditions including the following:
I will permit my parole officer to visit me in my residence and place of employment and I will permit the search and inspection of my person, residence and property.
I will not leave the State of New York or any other state [to] which I am released without the written permission of my parole officer.
I will discuss any proposed changes in my residence, employment or program status with my parole officer.
I understand I have an immediate and continuing duty to notify my parole officer of any changes in my residence, employment or program status[,] [w]hen circumstances beyond my control make prior discussion impossible.
I will not own, possess or purchase any shotgun, rifle, or firearm of any type without the written permission of my parole officer. Nor will I possess or purchase any deadly weapons as defined by the penal law.
In addition, defendant agreed not to apply for or possess a driver's license without the written permission of his parole officer and to abide by his curfew.
According to Zwaryczuk, based on the information provided by Burger and Brown, he suspected that defendant had violated several conditions of his parole - leaving the State of New York without the permission of his parole officer, obtaining a Virginia driver's license without permission, possessing a.38 caliber handgun and committing burglaries in New Jersey. Zwaryczuk planned to confirm that defendant had acquired a Virginia driver's license and to "look for a gun" and "jewelry," but he did not have a description of the jewelry. Zwaryczuk determined to do a curfew check and a parole search the following morning. He arranged for other parole officers, police officers who are members of a New York warrant squad and often accompany him as "back-up" during a home visit and search, and the New Jersey officers to meet at his office the next morning. Zwaryczuk did not say why he invited the New Jersey officers to come along. They said they went to observe defendant's arrest and waited outside in conformity with directions given by an assistant prosecutor from Morris County.
Zwaryczuk gave the following testimony about the purpose of the search and the role of the New Jersey law enforcement officers. "[T]he decision to search and the search was totally [a] New York State Division of Parole search. I initiated it based on the information we had. I conducted it[;] they [the New Jersey officers] didn't orchestrate anything." When asked whether he was searching primarily for violations of defendant's parole or if the search involved the New Jersey crimes, Zwaryczuk responded: "One in the same to me. To see if he violated the conditions of his parole and being in New Jersey would have been a violation."
On March 7, 2006, Byrnes, Burger and Brown went with Zwaryczuk, other parole officers and members of the warrant squad to defendant's home. They arrived at about 6:45 a.m. as defendant and his wife were leaving the driveway. According to Zwaryczuk, the car was stopped and defendant was placed in handcuffs and advised that, although he was not under arrest, they were going to conduct a parole search. The New Jersey officers waited outside while the New York officers, defendant and his wife were in the house. According to defendant, however, two officers from New Jersey were also inside his home during the search.
Zwaryczuk found the only physical evidence introduced at trial on a computer table in the living room. Defendant's wallet contained the Virginia driver's license and the pawn shop tickets. The gold medallion and "Navy" ring were next to the computer. Because neither defendant nor his wife acknowledged ownership of the jewelry and Zwaryczuk knew that defendant's background did not include service in the Navy, he believed the jewelry was stolen and evidence of a violation of parole.
Additional items not introduced into evidence were also recovered. A New Jersey driver's license found in defendant's wallet was taken outside to the New Jersey officers who confirmed that it was one taken in a New Jersey burglary. A BB gun was found on top of the entertainment center near the computer table. The New Jersey officers linked the gold medallion with ...