On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-02-00109.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2010
Before Judges Rodriguez and LeWinn.
Appellant filed a pro se supplemental brief.
After defendant Willie Tanner's motion to suppress evidence seized from his bedroom on October 3, 2003, was denied by Judge Frank W. Gasiorowski, defendant pleaded guilty to two counts of first-degree robbery pursuant to N.J.S.A. 2C:15-1. These charges arose from separate incidents on different dates. In exchange for defendant's plea, the State agreed to recommend concurrent twelve-year terms with a NERA*fn1 parole disqualifier to run concurrent with a term defendant was already serving arising from a Middlesex County conviction. Judge Julie M. Marino imposed the sentence recommended by the agreement.
Defendant appeals contending that:
THE JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE IT WAS NOT IMMEDIATELY APPARENT TO THE SEARCHING OFFICERS THAT THE MATERIALS SEIZED FROM DEFENDANT'S BEDROOM AREA WERE EVIDENCE OF ANY CRIME WITHIN THE MEANING OF ARIZONA V. HICKS.
Defendant filed a pro se supplemental brief contending:
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN HE DENIED DEFENDANT'S MOTION TO SUPPRESS. (raised below)
A. MS. DARBY LACKED ACTUAL OR APPARENT AUTHORITY TO CONSENT TO A SEARCH OF THE DEFENDANT'S PERSONAL ITEMS.
B. THE STATE FAILED TO PROVE THAT MS. DARBY WAS AWARE OF HER RIGHTS TO REFUSE OR WITHHOLD THE SEARCH UNTIL A WARRANT WAS OBTAINED.
At a hearing on the motion to suppress, Franklin Township Police Detective Brian Gilmurray testified about the police investigation and subsequent search. On August 28, 2003, two employees at a 7-Eleven convenience store called the police and reported a robbery by an African-American man wearing a black ski mask, white t-shirt and black pants and armed with a silver revolver. The robber took an undetermined amount ...