On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Miscellaneous No. 09-862.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2010
Before Judges Axelrad and Lihotz.
We review challenges by appellant W.J.M. to a Criminal Part order granting the State's application ordering him to submit to non-testimonial identification procedures, that is, a buccal swab, for the purpose of comparing DNA to evidence obtained in an ongoing criminal investigation. W.J.M. asserts the State's application seeking investigative detention failed to satisfy the four-pronged prerequisites of Rule 3:5A-4, and included an "invalid" supporting affidavit in contravention of Rule 3:5A-2.
Following our examination of the record in light of the applicable law, we reject W.J.M.'s arguments and determine the State fully met its burden to establish a well-grounded basis supporting its request that W.J.M. submit to investigative detention. Accordingly, we affirm.
The facts are taken from the record comprised of the affidavit of Monmouth University Police Detective Corporal Jeffrey Layton filed with the State's application. On the evening of July 25, 2008, Monmouth Police Patrolman James Gaul responded to a report of a man hiding in the women's locker room. When Patrolman Gaul arrived at the scene, Kevaney Martin, the victim, advised Patrolman Gaul that as she returned from the pool she noticed the locker room door was propped open with a garbage can. Martin removed the garbage can, and heard a noise coming from the far side of the locker room. Upon investigation, Martin discovered a man hiding in a storage area of the showers. Martin screamed, left the locker room and ran toward the pool for help.
Martin described the suspect as a "white male, about forty years old, 5'9" to 6' tall, medium build, with brown or dark curly hair." She stated she did not get a good look at the man's face because "the room he was hiding in was dark." A fourteen-year-old girl, who had been playing basketball in the parking lot adjacent to the gym at the same time, told Monmouth Police Sergeant Milton Morris she saw a man run out of the gym "very quickly" and drive away from campus in a late model, four-door silver sedan.
The next morning, Patrolman Gaul and Sergeant Morris briefed Detective Corporal Layton before he commenced an investigation of the scene. Detective Corporal Layton's search yielded three items found on a counter just outside the storage room where the suspect was found: a white towel, a Trojan brand condom wrapper, and a mini vibrator. Photographs were taken and the evidence was secured.
On March 29, 2009, a similar event occurred at another college campus. Brookdale Community College Police Officer Shawn White responded to a report of a man discovered in the women's locker room of the Collins Arena. Catherine Folio, the victim, told Officer White she heard and saw something "out of the corner of her eye" in the shower area. When Folio pulled back a shower curtain, she saw a man sitting in a stall. Folio screamed. The man asked her to direct him to the men's locker room. As Folio began to walk him toward the men's room, he headed in the opposite direction, leaving the locker room and exiting the building. Folio described the suspect as a white male in his late thirties or early forties with short dark hair, 5'4" tall, and a chubby build. An unidentified eyewitness told Officer White a man ran into the parking lot and entered a small, silver, four-door vehicle and exited the area.
After further investigation of the shower area, Officer White, along with Officer Joseph Szotak, discovered an empty Trojan brand condom wrapper, a pair of women's white underwear, and a vibrator. In a locker outside the shower area, the officers also discovered a second vibrator.
On April 6, 2009, Brookdale Police Detective Risheen Whitten advised Monmouth Police Sergeant Kenneth Kennedy of the March 29, 2009 incident. Detective Whitten told Sergeant Kennedy he suspected W.J.M. was involved in the incident because the Brookdale Police had previously arrested W.J.M. twice for similar incidents. On April 15, 2009, Detective Corporal Layton met with Brookdale Police Captain Thomas Hartman to discuss the investigation of the March 29, 2009 campus incident. Detective Corporal Layton reviewed the evidence Brookdale retrieved, noting the similarity of the items recovered to those found at Monmouth University. Detective Corporal Layton also learned of several similar prior incidents involving W.J.M., including at least six arrests for lewdness or trespassing in women's locker rooms, at Monmouth University, Brookdale Community College or area high schools from 1991 to the present. One incident occurred on March 14, 1991 at Manasquan High School, where W.J.M. was arrested and pled guilty to criminal trespass. That year, he also pled guilty to a charge when caught in the university women's locker room by Monmouth University Police, and gave a statement admitting he had done this approximately five times in the prior week. Detective Corporal Layton reviewed the records of an incident at Brookdale Community College, where W.J.M. was found in the locker room area and escorted off the college campus. Detective Corporal Layton compared the victims' descriptions of the suspect in these and the unresolved similar incidents, many of which matched W.J.M.'s description.
Brookdale Community College Patrolman Casey Willms told Detective Corporal Layton of an August 2006 incident at the school. Patrolman Willms had spoken to W.J.M.'s employer, who confirmed W.J.M. left work, driving a silver Honda Civic and stated the plate number. Using the tag number, Detective Corporal Layton checked New Jersey Motor Vehicle Commission records and found the tag matched a 1998 four-door, silver Honda Civic, registered to W.J.M.'s wife. During a subsequent drive past W.J.M.'s residence, Detective Corporal Layton observed the Civic ...