November 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NATALIA ALVAREZ, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 search was suspended in favor of applying for a formal search warrant.
The suppression hearing revealed dramatic differences between the State's and defendant's proofs. Defendant testified that when the police investigators arrived at her home, "[she] was smoking weed . . . [with her] stepdad and [her] boyfriend." After knocking on her door and defendant "open[ing] the door a little bit just to see who it is," the police rushed inside, "searching everybody," and "asking all type[s] of questions." Believing that she was under arrest, defendant got dressed and left with the investigators. Defendant's version of events was corroborated by defendant's stepfather, including his testimony that the police canvassed the apartment as soon as they entered.
Defendant's other witness at the suppression hearing was her mother. Castellano testified about being questioned by investigators, stating that she was ordered to leave her job and accompany them to her home, where they insistently wanted to conduct a search. Castellano indicated that she did not read or write English and did not understand the consent to search form. Indeed, she testified that she signed "that paper" solely so that she could see her daughter who was being held inside the apartment by other police officers. Castellano testified further that she was neither advised that she had a right to refuse to sign the consent to search form nor instructed that she could tell the police to stop the search at any time.
The motion court reviewed the evidence and arguments of counsel. It denied defendant's motion, after observing that there were "[c]learly some inconsistencies between the testimony of various witnesses. There are clearly some issues for the court to resolve." Rejecting defendant's claim that her apartment was invaded by the investigators, the court determined that the State's evidence was credible and concluded "that the police were allowed in."
The court further assessed the respective versions of events from the witnesses and concluded:
I found that [Castellano], in fact, . . . did sign the consent to search. . . . .
I don't find credible threats of deportation or likewise were made, nor do I find that this was the reason it was signed. Rather I do find that she was asked for consent, told she didn't have to [consent], told she could withdraw the consent, and in essence, . . . she voluntarily and knowingly authorized [the consent to search].
The motion court expressly made credibility findings regarding Castellano, finding that she was often not responsive to questions and provided inconsistent testimony at times. Ultimately, the court denied the motion to suppress, "find[ing] that the State has met its burden with respect to the consent to search." This appeal followed.
On appeal, defendant raises the following two points for our consideration:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S SUPPRESSION MOTION BECAUSE THE STATE FAILED TO PROVE THAT EITHER DEFENDANT OR HER MOTHER VALIDLY CONSENTED TO THE SEARCH OF DEFENDANT'S RESIDENCE.
POINT II: THE TRIAL COURT FAILED TO CONSIDER IN MITIGATION DEFENDANT'S LACK OF A CRIMINAL RECORD, RESULTING IN AN EXCESSIVE SENTENCE REQUIRING A REMAND FOR RESENTENCING.
We conclude that both arguments are unpersuasive and we will disturb neither the conviction nor the sentence.
"A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search of a home." State v. Domicz, 188 N.J. 285, 305 (2006). Furthermore, "consent searches are considered a 'legitimate aspect of effective police activity.'" Ibid. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854, 863 (1973)).
"[T]o determine whether a person's consent was voluntarily given or coerced, the proper analytical framework is whether a person has knowingly waived his [or her] right to refuse to consent to the search." Id. at 308. An essential element of whether consent was voluntary is "'knowledge of the right to refuse consent.'" Id. at 317 (quoting State v. Johnson, 68 N.J. 349, 353-54 (1975)).
A motion court's findings are binding on appeal when they "'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We apply a deferential standard to the findings of fact of the motion court that "'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting Johnson, supra, 42 N.J. at 161).
Here, the motion court found that Castellano knew that she had the right to refuse consent and to suspend the search at any time. Although Castellano said that she did not read the consent form, Sergeant Corrado testified that he read and explained the consent form to her in full, and Castellano appeared to understand and engage herself in their discussion. We are satisfied that there is sufficient credible evidence in the record to support the motion court's determination that the recovery of physical evidence from defendant's apartment was the result of a permissible search, bottomed upon valid consent.
With respect to defendant's sentence, she argues that it is excessive because the sentencing court (1) failed to apply mitigating factor seven (N.J.S.A. 2C:44-1(b)(7)),*fn2 (2) misapplied defendant's drug abuse as a non-statutory aggravating factor, and (3) mischaracterized defendant's remorse, such that the matter should be remanded for resentencing. We do not agree.
Defendant's aggregate sentence was fifteen years, at the midpoint for a first-degree crime. Thus, we are not confronted with a facially harsh sentence. Notwithstanding her arguments to the contrary, this is not a case where the sentencing judge overlooked defendant's circumstances (her age and lack of criminal history) or abused his discretion in assessing them. Although the sentencing court expressed strong estimations of defendant's character that were exposed during the course of the proceedings, overall this sentence and the manner of its imposition were unremarkable.
In imposing sentence, the court stated the following:
I would find the aggravating factors here to be three [N.J.S.A. 2C:44-1(a)(3)] and nine [N.J.S.A. 2C:44-1(a)(9)] at a rock bottom minimum. I really don't find any material mitigating factors and that may seem a bit strange to someone who's [eighteen] years of age and has no prior convictions. My reasons are these, very obviously the defendant caused serious harm, the victim's dead. It was a plan to, accepting her -- well, accepting one of her many versions, there was a plan to commit a robbery that went bad. There are no grounds to excuse it. To say that the victim facilitated this commission I think would be unjust to the victim. No real compensation can occur here. This is a defendant [who] has a long history of chemical dependency and drug use and involvement with drug dealing and drug dealers, so I don't find mitigating factor seven.
As we have already noted, during the suppression hearings, defendant testified that on the day the investigators arrived and inquired about Rollins' death, she had been ingesting marijuana with her stepfather and boyfriend. When asked whether this was a common occurrence, defendant responded that she smoked marijuana, "[e]very day, all day." Additionally, defendant testified that she sold marijuana to customers "through the window" of her apartment. With this background we cannot discern an abuse of discretion by the sentencing court's minimization of mitigating factor seven. Although defendant had no history of juvenile adjudications or criminal convictions, she had certainly not been divorced from criminal activity, as evidenced by her own words. Furthermore, we do not share defendant's point of view that the sentencing court transformed defendant's illicit drug use and distribution activities into an aggravating factor. Instead, from our reading of the sentencing record, we are convinced that the court confined those circumstances to modulating the effect of defendant's lack of criminal convictions.
We also observe that the sentencing court's treatment of defendant's late-stage remorse was within its discretion. The Adult Presentence Report that was available to the court did contain statements of regret for her participation in the crime that resulted in Rollins' homicide. When permitted to speak at sentencing, defendant started by stating, "I could sit here and say a thousand sorries, but I know you probably heard that before." She also expressed responsibility, "even though I did not kill Johnny [Rollins], I know my action led to his death." She asked Rollins' family for forgiveness but avowed, "I know that I did right [be]cause I spoke the truth."
When it imposed sentence, the court noted, "[defendant's attorney] has endeavored to argue on his client's behalf an explanation for why she appears cold and remorseless, but my take on her and from what I've seen is someone who is cold and remorseless, engaging in sociopathic conduct." From our distance, we cannot say that the sentencing court was so wide of the mark as to warrant our intervention and require resentencing. It was the sentencing court that had the immediate opportunities to observe defendant on multiple occasions; our review of a cold transcript does not suffice to commend defendant's argument that either her sentence is excessive or the sentencing court was animated by improper considerations.
Although our review of a sentence must be "careful and vigorous," we may not substitute our judgment for that of the sentencing judge. State v. Kirk, 145 N.J. 159, 175 (1996). The test is not whether this court would have imposed a different sentence, but rather "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989). A trial judge is given "wide discretion" to impose a sentence provided it is within the statutory framework, and the reviewing court must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). However, we must make sure that the sentencing guidelines set forth in the statute have been met, that the aggravating and mitigating factors found below are based upon "'competent credible evidence in the record,'" and that the sentence is not "'clearly unreasonable so as to shock the judicial conscience.'" Id. at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
We also note that our Supreme Court has recently fortified the authority of sentencing judges, State v. Bieniek, 200 N.J. 601, 608-09 (2010), and has reminded our court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division:
Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence. [Ibid.]
Overall, we discern neither a misapplication of sentencing principles nor an inappropriate exercise of discretion. The sentencing court explicated the reasons for imposing the term of incarceration, and we are not free to lightly disregard them. The sentence is neither unduly harsh nor unreasonable in light of the circumstances of the crimes for which defendant pled guilty.