On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-03-0413.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and Koblitz.
Appellant filed a pro se supplemental brief.
Tried to a jury, defendant was convicted of unlawful possession of a weapon, a crime of the third degree, N.J.S.A. 2C:39-5b; possession of a weapon for an unlawful purpose, a crime of the second degree, N.J.S.A. 2C:39-4a; and endangering the welfare of a child, a crime of the second degree, N.J.S.A. 2C:24-4a. He was found not guilty of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a; possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), -b(5); and possession of a firearm while engaged in a CDS-related distribution activity, a crime of the second degree, N.J.S.A. 2C:39-4.1a. Defendant subsequently filed a motion seeking a new trial or acquittal. The trial court denied the motion for a new trial. Recognizing that it had given an incorrect instruction to the jury on the charge of second-degree child endangerment, it granted defendant an acquittal with respect to that charge but denied the motion with respect to the balance of defendant's convictions. Thereafter, at sentencing, the trial court denied the State's motion to impose an extended-term sentence. It merged the conviction for unlawful possession of a weapon into the conviction for possession of a weapon for an unlawful purpose and sentenced defendant to eight years in prison, with a four-year period of parole ineligibility. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On appeal, defendant raises the following issues for our consideration:
POINT I THE SUPPRESSION COURT ERRED BY FAILING TO MAKE SPECIFIC FACTUAL FINDINGS AND CONCLUSIONS OF LAW TO SATISFY THE REQUIREMENTS OF R. 1:7-4(a)
POINT II THE SUPPRESSION COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS AS THE POLICE DID NOT HAVE AN OBJECTIVELY REASONABLE BASIS FOR BELIEVING DEFENDANT WAS A RESIDENT OF 16 SOMERSET STREET OR THAT HE WAS PRESENT IN THE HOME AND DID NOT HAVE A SEARCH WARRANT FOR THE PREMISES POINT III THE TRIAL COURT ERRED BY NOT ALLOWING DEFENSE COUNSEL TO ELICIT RELEVANT EVIDENCE REGARDING THE FACT THAT THE POLICE ALSO HAD AN ARREST WARRANT FOR A HOMICIDE SUSPECT POINT IV THE TRIAL COURT ERRED BY NOT GRANTING [C.S.'S] MOTION PURSUANT TO R. 3:18-2 TO SET ASIDE THE VERDICT AS TO COUNTS ONE AND FOUR OF THE INDICTMENT POINT V THE TRIAL COURT ERRED IN ALLOWING INVESTIGATOR LEVY TO OFFER EXPERT TESTIMONY AND ANSWER CERTAIN QUESTIONS BECAUSE THE TESTIMONY DID NOT ASSIST THE JURY IN UNDERSTANDING THE FACTS AND WAS UNDULY PREJUDICIAL POINT VI THE COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A NEW TRIAL POINT VII THE TRIAL COURT'S ERRONEOUS CHARGE TO THE JURY REGARDING THE CHILD ENDANGERMENT COUNT DEPRIVED [C.S.] OF HIS RIGHT TO A FAIR TRIAL (Not Raised Below)
POINT VIII THE SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE
We shall initially deal with the issues relating to defendant's motion to suppress; our factual recitation at this point is limited to the facts adduced during the course of the motion hearing.
Two witnesses testified at the motion to suppress--Officer Jose Segarra of the Human Services Police and Officer Erik Finne, a member of a task force created by the U.S. Marshal Service to arrest fugitives. Their testimony established the following facts. Defendant was the father of a four-month-old baby girl, A.S., who, for reasons not pertinent to this matter, was in the legal custody of the New Jersey Division of Youth and Family Services (DYFS). Despite the order placing the child in the custody of DYFS, defendant took the baby; DYFS, in turn, filed a complaint charging him with interfering with its custody; and a warrant was issued for his arrest. Officer Segarra of the Human Services Police set about attempting to locate defendant to execute that arrest warrant.
As part of that investigation, Officer Segarra spoke with a woman in Newark who turned out to be defendant's grandmother. She told him that defendant was not living with her, and she did not know where he was living. Officer Segarra left his business card with her and received a telephone call from her a few days later in which she said defendant might be living in Carteret with a relative named "Scooby." Based upon that information, Officer Segarra went to the Carteret police to see if they knew of anyone in the area named Scooby. From the Carteret police, he learned that Scooby lived at 16 Somerset Street, a multi-family dwelling. During his investigation, he learned as well that there were two other outstanding warrants for defendant's arrest--one from New York City and one from Newark.
He also learned that the Fugitive Task Force of the U.S. Marshal Service intended to execute an arrest warrant for another individual, not Scooby, who was living at that same address. Officer Segarra, together with his partner, Officer Ben Estrada, arranged to be present shortly before 6:00 a.m. on the morning of October 28, 2006, when the marshals planned to execute their warrant. Segarra and Estrada had also learned that Scooby lived on the second floor of the building and that his apartment was accessible from a flight of stairs at the rear of the house. Segarra went up the stairs and knocked on the door; a woman answered, who Segarra recognized as the mother of A.S. He asked her if defendant and A.S. were there, and she said yes. He asked if he could come into the apartment, and again she said yes. He asked where they were, and she indicated they were in the back room. Segarra, with two others, entered the back room. Segarra testified that he did not know who entered the room with him; he knew that one of the men had a jacket identifying him as a marshal but did not know about the other person. He saw defendant asleep on a bed, face down, with
A.S lying next to him. Segarra told defendant not to move but to display his hands; defendant complied. Segarra handcuffed defendant, and one of the other officers took A.S. and removed her from the room. As Segarra was leading defendant out of the room, he heard another officer yell, "Gun." Segarra took defendant into the living room and stayed with him. Segarra testified that he did not personally see the gun until later.
Officer Erik Finne, assigned to the task force, who had entered the room with Segarra, testified that he saw the strap of a handgun protruding from between the box spring and mattress of the bed on which defendant had been sleeping. He described the strap of the gun as the back of the gun's grip, that is, the portion that would fit against the palm. Finne lifted up the mattress against the wall and found, in addition to the gun, a quantity of narcotics. Two Carteret police officers came in, saw the gun and the drugs and later took Finne's statement.
Defendant did not present any witnesses in connection with his motion to suppress. He thus did not put forth an alternate factual version of what occurred on the morning of October 28, 2006.
As to defendant's first point, while we would agree that the trial court's oral opinion is not a model that we would like to see emulated, from our careful study of it we have satisfied ourselves that it does contain sufficient factual findings to permit us to analyze the legal soundness of the trial court's conclusions.
Defendant provides several substantive reasons to support his contention that his motion to suppress should have been granted. He stresses that Officer Segarra did not have a search warrant authorizing him to enter 16 Somerset Street and, pointing to State v. Miller, 342 N.J. Super. 474 (App. Div. 2001), argues that absent a search warrant, Officer Segarra had no authority to enter the premises of a third party to ...