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State v. Burke

November 4, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALFONSO J. BURKE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-07-1565.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 12, 2010

Before Judges Carchman and Waugh.

Following the denial of his motion to suppress, defendant Alfonso J. Burke entered a plea of guilty to one count of second-degree possession of a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1a. The trial judge sentenced defendant to a seven-year term of imprisonment to run concurrent to a sentence on unrelated offenses, together with statutory assessments and penalties. Defendant now appeals the denial of his motion to suppress narcotics and weapons evidence seized during the execution of a warrant for his arrest. We affirm.

Although some minor factual disputes emerged from the testimony at the suppression hearing, the basic underlying facts as to the search in question are not in significant dispute.

On January 18, 2007, Asbury Park Police Officer Daniel Newman, accompanied by other officers, executed an arrest warrant at defendant's purported residence, the home of defendant's cousin, co-defendant Rashaan Davenport in Asbury Park. The warrant was issued for various offenses that included robbery, carjacking and aggravated assault, all of which involved allegations of the use of a firearm. Specifically, the allegations were: that [defendant] did commit aggravated assault by knowingly, under circumstances manifesting extreme indifference to the value of human life, point a firearm at or in the direction of David Reg, specifically by pointing a black semiautomatic handgun at the victim's throat; did commit robbery by being armed with a deadly weapon in the course of committing a theft, specifically by pointing a black semiautomatic handgun at the victim and taking the victim's personal belongings, which include cash and a cellular phone; in the jurisdiction of the court did commit the offense of theft by unlawfully taking or exercising control over movable property, to wit, a 2005 gold Chevy Cobalt, four-door motor vehicle belonging to Elizabeth Quimby, with the intent to deprive the owner thereof, specifically by carjacking the vehicle and fleeing with the vehicle.

Defendant was considered armed and dangerous.

The officers approached the house, and Lieutenant David DeSane knocked on the front door and announced, "police." Davenport responded and opened the front door. Through a window, Officer Newman observed defendant, whom he recognized from a photograph, going upstairs, and he advised Lieutenant DeSane of this observation. Officer Newman asked Davenport whether anyone else was inside, and Davenport replied that his cousin was upstairs. Knowing defendant was subject to a warrant, armed and dangerous, the officer entered the house, announced, "police" and headed upstairs to arrest defendant.

The house contained three rooms on the second floor, one to the right at the top of the stairs, one to the left, and one ahead at the end of a hall. Officer Newman cleared each room to locate defendant and assure the safety of himself and the other officers. In the first room to the right at the top of the stairs, the officer observed, in plain view, heroin and marijuana on a bedside table, a box marked "American Eagle" pistol cartridges on the floor beside the table, and crack cocaine and a scale next to the door. The officer found defendant in the second bedroom and secured him before clearing the last bedroom.

Officer Newman advised Lieutenant DeSane of the contraband evidence he had discovered upstairs. The lieutenant then contacted Detective Scott Samis of the Monmouth County Prosecutor's Office for assistance with the investigation. Detective Samis proceeded to the house and then to a satellite office of the Prosecutor's Office to speak with Davenport; both Davenport and defendant at that point had been arrested and taken to the Asbury Park Police Department.

At the office, Detective Samis spoke with Davenport, who signed a waiver of his Miranda rights and a consent to search form for his bedroom at the house, specifically "[the Asbury Park address], up the stairs to the left front room to the left." Davenport told the detective that co-defendants Woods and Harriot also resided at the house.

Detective Samis returned to the house with Davenport's consent to search. He and Lieutenant DeSane went to the second floor. Through the opened doorway to the room, toward the right at the top of the stairs, which was determined to be Harriot's, Detective Samis observed the various contraband items that Officer Newman had first discovered, all still in plain view and consistent with Lieutenant DeSane and Office Newman's information as to its location. The police confiscated that evidence but otherwise did not search the room.

The police searched Davenport's bedroom, subject to the consent, where they found various other evidence, including: additional drugs, paraphernalia, packaging material, three ledger books marked "Gang Blood Information," a driver's license belonging to the victim of a carjacking with which defendant had been charged, a knapsack with a wallet containing defendant's driver's license, a.9mm bullet, and a.9 mm Hi-Point ...


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