April 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PETER THOMAS LISA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-07-1076.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 22, 2011
Before Judges Baxter and Koblitz.
Following a negotiated plea of guilty, defendant Peter Lisa appeals from his January 29, 2010 conviction on a charge of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), for which the judge sentenced him to a fourteen-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 (NERA). We reject defendant's contentions that the judge erred when he denied defendant's motion to suppress the evidence seized pursuant to a search warrant. We likewise reject defendant's argument that the sentence imposed was excessive and that trial counsel rendered ineffective assistance. We affirm.
On December 17, 2007, defendant's girlfriend sought, and obtained, a domestic violence temporary restraining order (TRO) against defendant pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. The TRO prohibited defendant from possessing firearms and weapons, and authorized police to search for and seize "any and all" firearms, as well as a six-inch knife and a baseball bat, from defendant's home and garage.
Later that day, members of the Paramus Police Department went to defendant's home to execute the search warrant.*fn1 Police ultimately seized sixteen guns, various knives, a sixteen-inch bayonet, a Panther stun gun, and a "robbery bag" that contained two handguns, a black wig, a plastic paintball style protection mask, one black glove, one black hat, and one pair of brown pantyhose with the legs removed. The weapons were recovered from defendant's bedroom, attic, and the attached garage, which was accessible through defendant's bedroom. Lieutenant Kenneth Ehrenberg filed a police report stating that defendant was concerned with turning off his computer located in his bedroom, and that it appeared to Ehrenberg that defendant was attempting to conceal the images or text displayed on the computer screen.
After seizing the weapons, the police checked the National Crime Information Center (NCIC) computer database and discovered that eight of the sixteen guns seized from defendant were reported stolen, six from a residential burglary in Bloomingdale a year earlier, one from a burglary in Howell thirteen years earlier, and one from a burglary in Kingston, New York fifteen years earlier.
During the TRO search, Detective Frank Scott observed a black motorcycle trailer in defendant's garage, and became suspicious both because there was no motorcycle attached to the trailer, and because Scott was familiar with a recently reported theft of a motorcycle trailer from a nearby home. After returning to police headquarters, Scott reviewed the trailer theft report and contacted the owner for more information. The owner described the trailer as a black trailer with "diamond plating," and noted one "unique feature," a white aftermarket plastic plug inserted within the trailer stand.
According to Detective Scott, that same night, December 17, 2007, he and Patrolman Gleason returned to defendant's home "specifically to obtain further information on the motorcycle trailer from the homeowner Eufrasia Lisa," who was defendant's mother. Detective Scott's police report states that defendant's mother was provided with a consent to search form, which she read and which was read aloud to her. Scott's report said she voluntarily signed the form and authorized a search of her home. After she did so, Scott and Gleason inspected the trailer and observed the white plastic plug that the owner of the trailer had described. Scott and Gleason left defendant's home at 10:05 p.m.
The next day, December 18, 2007, Detective Scott applied for a search warrant authorizing police to search and seize the motorcycle trailer, as well as defendant's computer, software and all related peripherals. The affidavit Scott submitted in support of his request for a search warrant described the stolen guns and "robbery bag" that had been recovered during the TRO search the day before. He also described the motorcycle trailer, noting that it "contained specific markings which matched that of a motorcycle trailer reported stolen on September 28, 2007 from . . . Paramus." When describing the motorcycle trailer, Scott did not reveal that the only way he knew that the trailer matched a trailer reported stolen was because he had returned to the premises a second time on December 17, 2007 and had examined the trailer more closely, pursuant to the consent to search form executed by defendant's mother. Scott's affidavit also reported Lieutenant Ehrenberg's observation that upon entering defendant's bedroom, defendant hurriedly went to a computer located in the center of the room and shut it off, leading Ehrenberg to conclude that defendant "was attempting to conceal from view" the images and text displayed on the screen.
A judge issued the search warrant, authorizing police to search the home and garage and to seize the items that Scott had described in his affidavit, including the motorcycle trailer and the computer. The search warrant contained a finding that the computer and trailer were "being used in furtherance of [the] commission of a crime or [were] evidence of the commission of a crime," specifically "burglary," "receiving stolen property" and "domestic violence."
While executing the December 18, 2007 search warrant within hours of its issuance, police observed a hot dog cart, a canoe, assorted jewelry and a 1995 Chevy van, which they believed were stolen. Consequently, on January 4, 2008, Detective Scott applied for a second search warrant enabling him to search for and seize those additional items. The January 4, 2008 search warrant affidavit included a description of Scott's interview of defendant's girlfriend on January 2, 2008, in which she provided a statement about the thefts and burglaries defendant told her he had committed. She asserted defendant had been engaging in such conduct since the spring of 2006, and had admitted stealing the canoe, the hot dog cart, the motorcycle trailer and jewelry. Upon executing the January 4, 2008 search warrant, police seized, among other things, the hot dog cart, the canoe, a shotgun, several video cameras and camcorders, and assorted jewelry. Police ultimately learned that the jewelry belonged to defendant's girlfriend's mother and to defendant's dentist.
On February 14, 2008, Scott reviewed the four videotapes and eleven digital flashcards seized during the January 4, 2008 search. That material depicted defendant assisting an adult female to sexually assault a juvenile male. In the video, defendant was heard referring to the juvenile male by his first name, a name which was highly unusual.*fn2 In the videotape, defendant stated that the child was ten years old. Scott proceeded to conduct a Myspace search for a juvenile male with the first name that defendant had mentioned. Scott was able to locate a Myspace page depicting a juvenile male who closely resembled the juvenile shown on the video. The child lived nearby.
On February 20, 2008, Scott, accompanied by detectives from the Bergen County Prosecutor's Office Sex Crimes Unit, interviewed the child. The child described many of the incidents depicted on the video, and provided additional information regarding incidents that were either not recorded or not located during the seizure of the videotape evidence.
On November 3, 2008, defendant moved to suppress the evidence seized during all three searches, namely, the December 17, 2007 TRO search as well as the December 18, 2007 and January 8, 2008 searches conducted pursuant to search warrants. Defendant argued that the TRO search exceeded the scope of the TRO because the TRO authorized police only to search for and seize weapons, yet police had also seized the "robbery bag." Defendant also maintained that contrary to the State's contention that his mother had authorized the further inspection of the motorcycle trailer on the night of December 17, and that police had inspected the trailer with her consent that night, in fact, the police inspected the trailer without his mother's consent on the night of December 17. According to defendant, police did not seek his mother's consent, or ask his mother to sign the consent form until the next day, December 18, but backdated the form to December 17 to make it appear that the inspection of the trailer on December 17 had been lawful. Defendant asserted that his mother had merely signed the form on December 18, and that the date of "December 17, 2007" was inserted by police. He maintained that the unlawful police conduct -- exceeding the scope of the TRO search and inspecting the motorcycle trailer without authorization -- so tainted the subsequently issued search warrants as to render the fruits of those searches illegal.
At the hearing on defendant's motion to suppress, the State informed the judge that because searches conducted pursuant to a warrant are presumed lawful and the burden of proving otherwise rests upon a defendant, the State had no intention of producing any witnesses at the suppression hearing. Defense counsel advised the judge that he had expected the State to call witnesses, and that he would have cross-examined Detective Scott, Patrolman Gleason and Lieutenant Ehrenberg had the State produced them. Defendant did, however, offer the testimony of his mother, who testified that the police officers did not return to her home on December 17, 2007 at 9:50 p.m., but instead returned on December 18, 2007 at 9:50 a.m. at which time they presented her with a blank consent to search form.
In a written opinion issued on June 12, 2009, the judge denied defendant's motion to suppress, reasoning that the issuance of the December 18, 2007 and January 4, 2008 search warrants was supported by probable cause. The judge pointed to the totality of the circumstances, which included the Paramus Police Department's finding that defendant was in possession of eight stolen weapons, a motorcycle trailer with specific markings matching that of a motorcycle trailer reported stolen, and evidence that defendant hurriedly turned off his computer the moment police entered his bedroom, leading to the inference that he was attempting to conceal what was being displayed on the computer screen.
Next, the judge addressed defendant's contention that the searches were unlawful because there was no nexus between the items seized and the criminal activity that was under investigation. He noted defendant's argument that the search warrants authorized seizure of the motorcycle trailer and any other property deemed to be stolen, but the videotapes and digital flashcards were never stolen from anyone and were the personal property of defendant, and thus there was no nexus between those items and the criminal activity of possession of stolen property and burglary.
The judge rejected defendant's argument, concluding that Detective Scott "was conducting a thorough and complete investigation" and reasonably believed that defendant's behavior with respect to his computer was an indication that the computer would contain further evidence of the theft and burglary crimes that were under investigation. The judge stated, "[t]here is no evidence that Detective Scott sought to conduct an arbitrary, meaningless search of defendant or the premises described in the search warrant." The judge signed a confirming order on June 12, 2009, in which he denied defendant's motion to suppress.
The judge's written opinion did not address defendant's arguments that the TRO search on December 17, 2007 exceeded the scope of the order in question. Nor did the judge address defendant's additional argument that the Paramus police inspected the motorcycle trailer on December 17, 2007 without obtaining the consent of defendant or his mother and without having obtained a search warrant that permitted such an inspection.
On August 13, 2009, defendant entered a negotiated plea of guilty to first-degree aggravated sexual assault based upon the State's agreement to dismiss the remaining thirty-four counts of the indictment, which charged defendant with the burglaries and thefts we have described, as well as additional sexual assault and endangering the welfare of a child charges pertaining to the same male victim. The plea agreement also included the State's promise to recommend a fifteen-year term of imprisonment subject to the eighty-five percent parole ineligibility term (NERA).
At the time of sentencing on January 29, 2010, the judge found the existence of the following aggravating factors, the nature and circumstances of the offense, the seriousness of the harm inflicted on the victim, the risk that defendant would commit another offense, and the need for deterrence, N.J.S.A. 2C:44-1(a)(1), (2), (3) and (9). The judge found the existence of one mitigating factor, the imprisonment of defendant would entail excessive hardship, N.J.S.A. 2C:44-1(b)(11). The judge imposed a fourteen-year NERA sentence.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS PHYSICAL EVIDENCE AS THE POLICE DID NOT HAVE CONSENT TO SEARCH THE RESIDENCE, WHICH WAS THE BASIS FOR THE SUBSEQUENT SEARCH WARRANT TO ISSUE.
II. THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS PHYSICAL EVIDENCE BECAUSE THE SEARCH WARRANT WAS ISSUED ON FICTITIOUS AND FALSE STATEMENTS OF MATERIAL FACTS.
III. THE ITEMS SEIZED WERE OUTSIDE THE SCOPE OF THE SEARCH WARRANT AND, THEREFORE, INADMISSIBLE.
IV. [DEFENDANT] WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO CALL DETECTIVE SCOTT, PATROLMAN GLEASON AND LT. EHRENBERG AS WITNESSES DURING HIS MOTION TO SUPPRESS AND COUNSEL'S FAILURE TO ADEQUATELY ELICIT TESTIMONY FROM [DEFENDANT'S SISTER]. (Not raised below)
V. THE SENTENCE IMPOSED UPON [DEFENDANT] WAS MANIFESTLY EXCESSIVE.
We begin with Points I and II, in which defendant maintains that because the police did not have the consent of defendant or his mother to search the residence, the court erred in denying defendant's motion to suppress. Defendant argues that the inspection of the trailer to look for the white plastic plug was not conducted with defendant's mother's consent; and the presumed consent to search the motorcycle trailer was the basis for the issuance of the two subsequent search warrants. He also argues that because the search warrant "was issued on fictitious and false statements of material facts," the judge erred in denying his motion to suppress. Finally, he contends that the four 8 mm tapes seized do not show a nexus between burglary, receiving stolen property or domestic violence, and therefore the judge erred by refusing to suppress them.
In contrast to warrantless searches, which are presumed to be unlawful, State v. Johnson, 193 N.J. 528, 552 (2008), searches conducted pursuant to a search warrant are presumed valid, State v. Keyes, 184 N.J. 541, 554 (2005). When a search is conducted with a warrant, the burden is placed upon the defendant to demonstrate the unlawfulness of the search. State v. Sullivan, 169 N.J. 204, 211 (2001). Searches with a warrant are "cloaked with an aura of prima facie legality" because when the State seeks a search warrant, such effort demonstrates that "the officer making the search was conscious of the citizen's Fourth Amendment security, and that out of concern for it, he sought and obtained judicial approval of the propriety of his proposed search." State v. Kasabucki, 52 N.J. 110, 122-23 (1968).
An affidavit in support of a request for a search warrant must be supported by probable cause. Id. at 116. Probable cause is "a suspicion of guilt that is well-grounded; a reasonable basis for a belief that a crime has been or is being committed." Ibid. (citations omitted). Here, the search of defendant's residence on December 18 was conducted pursuant to a warrant, and therefore defendant had the burden to prove it was not based upon probable cause. Sullivan, supra, 169 N.J. at 211.
Defendant maintains that in issuing the warrant, the judge relied, at least in part, upon the trailer being stolen, but, according to defendant, the police could not have made that determination without impermissibly returning to defendant's home on the night of December 17 to look for the white aftermarket plug. According to defendant, the search of the trailer on that second visit was not supported by any consent from defendant's mother.
As we have noted, the judge made no findings of fact on the question of whether, as defendant contended, police had the consent of defendant's mother when they viewed the trailer a second time. Even if we were to assume that defendant is correct, that single fact would not be sufficient to invalidate an otherwise valid warrant. As a review of the probable cause section of Detective Scott's December 18, 2007 affidavit makes clear, his reference to the motorcycle trailer having specific markings that matched those of a motorcycle trailer reported stolen a few months earlier was but a small part of the probable cause Detective Scott presented to the issuing judge.
Detective Scott mainly relied upon the fact that defendant was in possession of eight stolen firearms. The affidavit also described defendant hurriedly turning off his computer, and contained the assertion that defendant "was attempting to conceal from view images and/or text displayed on the scene." Thus, even if there was some impropriety by the police concerning their viewing of the trailer without consent, it is beyond dispute that the balance of the information contained in Detective Scott's affidavit was unassailable. If an affidavit is based partly on true, and partly on untrue, statements, the warrant will not be invalidated unless the true statements are insufficient to support a finding of probable cause. State v. Goldberg, 214 N.J. Super. 401, 404 (App. Div. 1986), certif. denied, 107 N.J. 118 (1987). Here, even if the statements concerning the trailer somehow misled the issuing judge into believing that the trailer had been viewed lawfully, the remaining statements were more than sufficient to support a probable cause finding.
Therefore, in light of the presumption of validity that attaches to searches conducted with a warrant, Keyes, supra, 184 N.J. at 554, we reject defendant's contention that the possible misstatements of fact concerning the circumstances under which the police may have viewed the trailer a second time required the judge to invalidate the warrant. We therefore reject defendant's claim in Points I and II that the portion of the affidavit describing the trailer so tainted the warrant issued on December 18, 2007 as to require the judge to grant his motion to suppress.
We turn to Point III, in which defendant maintains that because the items seized pursuant to the December 18, 2007 search warrant were outside the scope of the warrant, the judge erred by denying his motion to dismiss. In particular, he maintains that the four 8 mm videotapes and eleven digital photo flashcards had no logical nexus to the crimes of theft and burglary that were the basis for the issuance of the warrant because the videotapes were labeled in such a fashion as to make it clear that they were nothing other than defendant's "old home videos and personal photographs that were identified as such." The videotapes were labeled "Car.Kew w Gar at 1st Ken's; My apt. [child victim's name] Carm.twister/message date 11/20/02"; "[child's last name] BD 1st time date 12/28"; "Ken's Halloween 02 Pete Car [child's last name]."
Defendant's argument is meritless. As we have already discussed, Detective Scott's affidavit provided ample probable cause to justify a conclusion that defendant had been involved in numerous thefts and burglaries. Defendant's attempt to hurriedly turn off his computer when Lieutenant Ehrenberg entered the room gave police probable cause to believe that the computer contained further evidence of thefts and burglaries. Defendant has provided no authority to support his argument that an otherwise valid search warrant should be deemed invalid merely because the defendant chooses to place innocuous-sounding labels on the outside of the videotapes.
Moreover, the December 18, 2007 search warrant authorized police to seize any "digital cameras" or "digital video recorders" found on the premises. We do not view the videotapes that were seized to be so far afield from images that would have been captured on a digital camera or a digital video recorder as to require the suppression of the search conducted pursuant to the December 18, 2007 warrant. Thus, as the judge correctly found, the items seized, including the videotapes, were within the scope of the December 18, 2007 warrant, as it was reasonable to believe that defendant could have kept records of his stolen items by making videotaped images. We thus reject the claim defendant advances in Point III that the search exceeded the scope of the warrant.
In Point IV, defendant maintains that trial counsel rendered ineffective assistance by failing to call Detective Scott, Patrolman Gleason and Lieutenant Ehrenberg as witnesses during the motion to suppress and by failing to adequately elicit testimony from defendant's sister. As we observed in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), a defendant claiming ineffective assistance of counsel, "must do more than make bald assertions . . . ." When a defendant claims that trial counsel inadequately investigated his case, or performed inadequately at a hearing or at trial, defendant "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.
Here, defendant has not satisfied the requirements imposed by Cummings. He has not submitted certifications from any of the three police officers or from his girlfriend detailing what their testimony would have been had trial counsel called them as witnesses during the suppression hearing. Thus, defendant's arguments are nothing more than the "bald assertions" that we held insufficient in Cummings. We therefore reject the claim of ineffective assistance of counsel that defendant advances in Point IV.
In Point V, defendant argues that the sentence imposed was excessive. In particular, he maintains that the sentence, which was only one year below the midpoint of the range, constituted an abuse of discretion in light of the fact that he has no prior indictable convictions.
When reviewing a claim of an excessive sentence, our role is sharply circumscribed. State v. Bieniek, 200 N.J. 601, 607-08 (2010). As the Bieniek Court stated:
The [New Jersey Code of Criminal Justice] was designed to promote [consistency in sentencing] by providing courts with a system for "structured discretion" in sentencing. State v. Roth, 95 N.J. 334, 345 (1984). And, we have "assured our trial judges that when they 'exercise discretion in accordance with the principles set forth in the Code and defined by us . . . , they need fear no second-guessing.'" State v. Ghertler, 114 N.J. 383, 384 (1989) (quoting Roth, supra, 95 N.J. at 365). [Ibid.]
If the trial judge's findings of statutory aggravating and mitigating factors "were based upon competent credible evidence in the record," and the judge imposed a sentence within the permissible range for the offense, we will not substitute our view of a proper sentence for that imposed by the trial judge. Id. at 608.
With the possible exception of aggravating factor three, the judge's findings of fact concerning the aggravating factors are well-supported by the record. As to aggravating factors one and two, the nature and circumstances of the offense and the seriousness of the harm inflicted on the victim, the record supports the judge's finding that the victim has experienced ongoing trauma as a result of defendant's conduct, including a drop in his grades in school and numerous behavioral problems. These factors are not an element of the offense. Moreover, a sentencing judge is entitled to consider the "psychological harm to the victim." State v. Kromphold, 162 N.J. 345, 357 (2000) (citing State v. Logan, 262 N.J. Super. 128, 132 (App. Div.), certif. denied, 133 N.J. 446 (1993)). We therefore reject defendant's argument that the judge impermissibly double counted aggravating factors one and two.
As to aggravating factor three, the risk defendant will commit another offense, defendant has no prior indictable convictions, and was, at the time of sentencing fifty-seven years old. Therefore, the support in the record for the finding of aggravating factor three is sparse.
Nonetheless, even if aggravating factor three is eliminated from consideration, viewing the sentencing proceeding as a whole, we are satisfied that the sentence imposed, which was one year below the midpoint of the sentencing range for a first-degree crime, represents a proper exercise of the judge's broad discretion. We therefore have no occasion to disturb the sentence imposed.