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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...