On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-06-1487.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Payne.
Defendant was charged with first-degree kidnapping, N.J.S.A. 2C:13-1b; first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; terroristic threats, N.J.S.A. 2C:12-3; aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and unlawful possession of a weapon, N.J.S.A. 2C:39-5b.
Defendant moved to suppress certain evidence that was seized after a search of the premises at which he had been arrested. After a hearing at which the officer who conducted the search and defendant's girlfriend both testified, the trial court denied the motion. Defendant later entered a negotiated plea of guilty to one count of second-degree aggravated assault and was sentenced to seven years in custody, subject to parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant has appealed and makes one contention on appeal.
THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE CREDIBLE EVIDENCE WAS THAT ALEXIS SMITH WAS COERCED INTO SIGNING THE CONSENT TO SEARCH THE HOUSE AND FURTHER THAT DEFENDANT, KNOWING WHAT WAS IN HIS CAR, WOULD NEVER HAVE ASKED THE POLICE TO LOOK INSIDE THE CAR, WHERE THE BULLET WAS FOUND. THE STATE'S CASE LACKED ANY CREDIBILITY.
After reviewing the record in light of the contentions advanced on appeal, we affirm.
The State's witness was Detective Darius Davis of the Asbury Park Police Department. He testified that on March 12, 2008, he was assigned to investigate a report of a home invasion on Asbury Avenue. Detective Davis testified that he met with the victim, Patrick Joseph, at the hospital and that Joseph was holding a bloody towel to his head and he had a laceration in the area of his lip. Davis said that through his investigation, he learned that defendant assaulted Joseph and demanded money defendant needed to provide as bail for his brother, who was in custody. Joseph told him that defendant initially attacked him in his house, striking him with the butt of a gun and kicking him. Defendant then forced Joseph into a car. Joseph said there were two other men in the car wearing masks and that he and defendant got into the rear seat. According to Joseph, they drove around for a while, with defendant continuing to demand money and punching Joseph and hitting him with a handgun. After a while, Joseph said he had money at his house, and the men returned there. When they arrived, several individuals, including Joseph's mother and sister, recognized defendant. Someone called the police, and the assailants fled. Joseph later described the car in which he was confined as a tan Toyota with tinted windows.
Through his investigation, Davis learned that the car was parked on Springwood Avenue, in front of the residence of defendant's girlfriend, Alexis Smith. Before going to that address, he secured an arrest warrant for defendant. When Davis arrived, accompanied by other officers, the car was there. Davis first called his dispatcher and reported the license plate number on the car. The dispatcher searched motor vehicle records and reported that the car was registered to defendant's father.*fn1 When the police knocked on the front door, they heard a loud bang from inside. They continued to knock, and Alexis Smith eventually opened the door. The police asked if defendant was present, and she responded he was upstairs. Davis could see defendant on the landing. Defendant surrendered peaceably; he was handcuffed and placed under arrest.
Davis then told Smith that there was a possible involvement of a weapon, and he asked if she would give permission to search her house. He said she agreed to do so. He read to her the consent form, explaining that she did not have to agree to the search, but she signed it nonetheless. He testified that she had no questions and understood completely what was going on. The search did not turn up a gun; but six rounds of ammunition, a gun holster, two cell phones and a pair of boots with possible blood stains were among the items recovered.*fn2
Davis also testified that after Smith gave her consent to search, she told him that there might be an open warrant for her arrest. A record check revealed an outstanding warrant for contempt.
Because the car was involved in the assault on Joseph, Davis arranged to have the car towed to police headquarters. Davis asked defendant what he wanted done with his personal property that was in the car, and defendant said to give it to Smith. When Davis opened the door to retrieve defendant's personal items, there was a bullet on the front passenger floor. Davis seized it and logged it as evidence. Davis said he did not search the interior compartments of the car such as the glove box or trunk.
The defendant called Alexis Smith to rebut Davis's testimony. She said that approximately ten police officers came to her house looking for defendant. She told them he was upstairs, and they went up and retrieved him. She said the officers told her they needed to search her house and presented her with a consent form and told her she had to sign it. She said the officers told her that if she did not sign it, they would get a warrant and if they discovered anything, they ...