On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-06-1296.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 10, 2010 - Decided Before Judges Lihotz and J. N. Harris.
Johnny Lee Rollins -- an erstwhile friend of defendant Natalia Alvarez -- was found dead wrapped in bed sheets inside a shopping cart located in the back of a Jeep on January 23, 2006.
Defendant was indicted for several crimes associated with Rollins' death on June 7, 2006. An Atlantic County indictment charged defendant with murder, N.J.S.A. 2C:11-3(a)(1) and -3(a)(2) (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d) (count four); fourth-degree possession of a weapon under circumstances not manifestly appropriate, N.J.S.A. 2C:39-5(d) (count five); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(l) (count six).
Defendant filed a two-pronged motion to suppress the physical evidence seized in her apartment and prohibit the use of her statements given to police. After the motion was denied on June 28, 2007, defendant pled guilty on December 11, 2007, to reckless manslaughter, N.J.S.A. 2C:11-4(b)(1) (as amended through count one), and to a new accusation charging her with first-degree robbery, N.J.S.A. 2C:15-1, both relating to Rollins' homicide. Subsequently, defendant was sentenced to an aggregate term of fifteen years incarceration, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant contends, "the State failed to meet its heavy burden of showing that the consent [to search] was voluntary." In addition, because defendant "appeared before the court for sentencing with no prior criminal record of any kind," defendant claims that her sentence is tainted by the failure of the sentencing judge to consider mitigating factor seven N.J.S.A. 2C:44-1(b)(7) (no prior criminal history). Based upon our examination of the record, the arguments of counsel, and the applicable law, we affirm in all respects.
At the suppression hearing, the State presented the following evidence. After discovering the body of Rollins and determining that phone records revealed calls made between Rollins' cellular telephone and an address -- defendant's residence -- in Atlantic City, homicide investigators placed the locale under surveillance. The investigators also had developed information suggesting that defendant and the decedent had been acquainted.
Three members of the Atlantic County Prosecutor's Office and an affiliated member of the Atlantic City Police Department -- Sergeant Michael Quigley, Sergeant Michael Corrado, Investigator Heather McManus, and Investigator Michael Graham -- approached defendant's basement apartment in plain clothes and knocked on the door. Defendant answered and opened the door to find all four investigators outside. After identifying themselves as members of the Major Crimes Section of the Atlantic County Prosecutor's Office who were investigating a homicide, defendant was asked "if [the investigators] could step in," and defendant "complied and let [the investigators] inside." Sergeant Corrado expressly testified, "[w]e were invited in," and so they went inside.
After conducting a protective sweep of the apartment, which was then occupied by defendant and two other persons, two of the investigators asked defendant to accompany them to the Margate Police Department for further questioning about Rollins' death. No physical evidence was observed, collected, or seized from the apartment at that time. Defendant changed her clothes and left with investigators Quigley and Graham after approximately thirty minutes. Defendant was not placed under arrest, restrained, or handcuffed on the trip to Margate. Later, she was transported to the Atlantic County Prosecutor's Office in Mays Landing, given her Miranda*fn1 warnings, and eventually gave a videographed statement that implicated defendant in the death of Rollins.
After learning that the apartment was leased to defendant's mother, Adelia Castellano, investigators Corrado and McManus left the apartment to try and find her to obtain consent to fully search the apartment. Castellano, who was also known as Tania Denizard, was located at her place of employment, an eating establishment at the Tropicana Hotel and Casino. After introducing themselves, the investigating officers told Castellano of their homicide inquiry and the reasons why they wanted to search her apartment. Even though English was not her first language, Castellano was able to communicate freely with the investigators and cooperatively executed a written consent to search her premises. Sergeant Corrado testified,
I read the whole consent to search form to her, and we obtained consent to search form there, I asked her if she understood the consent form. She said she did. I, during that time, I explained to her that she had the right to refuse to give consent and that if she refused us we would have to apply for a search warrant. I also explained to her that she had the right to stop the search at any time once we started the search, if she gave consent.
Armed with this consent form, the search ensued. Within minutes, Sergeant Corrado located a bed sheet on the top shelf of the living room closet that appeared to match the bed sheet in which the victim's body was wrapped. After locating the bed sheet, the ...