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State of New Jersey v. Patrick Defranco

June 8, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PATRICK DEFRANCO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 09-10-01028.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 24, 2012

Before Judges Payne, Reisner and Simonelli.

The opinion of the court was delivered by PAYNE, P.J.A.D.

A superseding indictment was handed down on October 28, 2009, charging defendant, Patrick DeFranco, with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b), second-degree sexual assault, N.J.S.A. 2C:14-2c(4), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Shortly thereafter, defendant moved to suppress evidence of a telephone conversation that defendant had engaged in with the complaining victim, a former student, which the police intercepted with the victim's consent and which constituted a significant part of the evidence against defendant. The court denied the motion, determining that, under the circumstances presented, defendant had no reasonable expectation of privacy in the cell phone number used to place the call - a number that defendant disclosed to the school where he taught and was furnished by the school to its School Resource Officer, a policeman, shortly before the intercepted call was made.

Following the denial of his suppression motion, on June 2, 2010, defendant pled guilty to second-degree sexual assault pursuant to a negotiated plea agreement. As a factual basis for his plea, defendant admitted to having performed a prohibited sex act on the male victim when he was thirteen years of age. On November 12, 2010, the court sentenced defendant to five years in prison, subject to the registration and other requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23.

Defendant has appealed, raising the following arguments for our consideration:

POINT ONE THE MOTION JUDGE MADE AN ERROR OF LAW WHEN HE CONCLUDED THAT THE POLICE ACTED REASONABLY IN OBTAINING MR. DEFRANCO'S CELL PHONE NUMBER WITHOUT A VALID SEARCH WARRANT OR GRAND JURY SUBPOENA.

A. Because Mr. DeFranco Had A Reasonable Expectation Of Privacy In His Cell Phone Number, The State Could Acquire It Only Through A Search Warrant Or Grand Jury Subpoena.

B. Mr. DeFranco Did Not Waive His Right To Keep His Cell Phone Number Private By Disclosing It To His Employer Or To A Small Number Of People In Connection With His School Duties.

C. The Motion Judge Also Erred In Concluding That The Doctrine Of Inevitable Discovery Relieved The State Of Its Obligation To Use Court Process To Acquire Mr. DeFranco's Cell Phone Number.

D. Not Only Did The State Act Unlawfully In Obtaining The Cell Phone Number Without A Valid Warrant Or Subpoena, But School Officials Acted Unlawfully In ...


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