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State of New Jersey In the


August 29, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FJ-15-0920-10.

Per curiam.



Submitted March 7, 2012

Before Judges Axelrad and Sapp-Peterson.

Following an unsuccessful motion to suppress evidence seized while police were attempting to execute an arrest warrant, M.G.B., a juvenile, entered a plea to an act of delinquency, which, if committed by an adult, would constitute second-degree robbery, N.J.S.A. 2C:15-1. The court imposed a 271-day custodial disposition, crediting the juvenile with time served. We affirm.

These are the relevant facts presented at the bench trial.*fn1

On December 2, 2009, Senior Parole Officer (SPO) John Budenas spoke to the mother of parolee, J.R., who was wanted on a fugitive warrant. J.R.'S mother told the parole officer that J.R. was staying in Toms River. In accordance with protocol, SPO Budenas reached out to local police to join him and other members of the Fugitive Unit to execute the search warrant. Police informed SPO Budenas that a strong-arm robbery of an elderly woman took place two days earlier in the location where the warrant was to be executed, and that the victim's black purse had been stolen.

When police and parole officers arrived at the location, residents of the apartment where police had been directed were outside and denied J.R. was there, but they nevertheless gave the officers permission to search the apartment. They did not locate J.R., but SPO Budenas showed a picture of J.R. to a woman inside the apartment. She told police she had seen the person in the picture next door.

SPO Budenas knocked on the front door, and an individual, later identified as J.A., popped his head out of the second story window. SPO Budenas told J.A. they were the police and asked him to "Please come down to the front door." J.A. obliged and, upon being shown the poster of J.R., turned his head and looked up the stairwell of the residence. Because J.A. was Spanish-speaking, Parole Officer (PO) Rosemary Diaz, who is bilingual, proceeded to speak to J.A. She told J.A. they were looking for J.R. and asked whether he was there. J.A. once again looked up the stairwell. PO Diaz described J.A. as very cooperative and testified that she asked him "if we can come in and search for [J.R.]" and he responded, in Spanish, that they could come in. He was not, however, given a consent to search form.

The parole officers searched the premises. During the search, SPO Budenas observed an open black pocketbook under a bed in the first bedroom searched. In order to get a complete look under the bed, he moved it and saw a Sears credit card bearing the name of the victim of the robbery that occurred two days earlier. The officers searched the next bedroom and found no one. In the third bedroom, officers observed an individual, later identified as M.G.B., asleep in a bed. After awakening M.G.B. and confirming he was not J.R., PO Diaz sent M.G.B. downstairs to SPO Dino DeVirgilio, who was in the living room supervising any individuals found in the house. PO Diaz then looked under the bed and found J.R. While escorting J.R. out of the house, SPO Budenas told SPO DeVirgilio and the police officers on the scene that he believed the pocketbook from the robbery was in the first bedroom.

SPO DeVirgilio asked M.G.B. for identification. M.G.B. told him that his identification was in his bedroom in a drawer located on the top left side of the dresser. For safety reasons, the officer would not allow M.G.B. to retrieve his identification. He told M.G.B. that he would get it, and M.G.B. said, "okay, go." When the officer pulled the drawer out, not only did he find M.G.B.'s identification in a blue wallet, as M.G.B. had described to him, but he also saw a prescription bottle bearing the name of the alleged robbery victim, which had rolled to the front of the drawer.

Police took M.G.B. and others into custody and transported them to the police station. Detective Michael Malachelski contacted M.G.B.'s mother and advised her that he needed her to come to the police station. After at least two telephone conversations with M.G.B.'s mother, who had been en route to JFK airport, she gave permission, telephonically, for police to interview her son. The conversation with M.G.B.'s mother was recorded. Miranda warnings were administered to M.G.B., after which he was interviewed by Detective Louis Santora. Three and one-half hours later, Detective Santora re-interviewed M.G.B.

This time, his mother was present, and M.G.B. was allowed to speak to her privately before police commenced the second interview.

M.G.B. testified for the limited purpose of determining the admissibility of his statements made to Detective Santora. He testified that contrary to the testimony of the State's witnesses, he was only given an opportunity to eat after police completed their questioning, several hours after he had been brought to the station, and was only given a bottle of water. He also testified that he was not given an opportunity to sleep, and when he requested an opportunity to speak to his mother, Detective Santora just walked away from him. Under cross-examination, he admitted that following the first interview, he was given Coca-Cola to drink and that he was left alone in a room where he started singing songs, rapping a little bit, and drinking his soda. He also admitted that while at the station, he did push-ups. He acknowledged that he was given a phone to call his mother and that before admitting his involvement in the earlier robbery, he had an opportunity to speak with his mother.

The trial court found that J.A. knowingly and voluntarily gave his consent for police to search his residence for J.R., knew he could refuse the police access to his home, and there was an objectively reasonable basis for police to believe that particular dwelling was J.R.'s address.

With regard to M.G.B.'s statement, relying upon State v. Presha, 163 N.J. 304 (2000), the trial court found:

[T]he first statement was given after he was read his rights, after he was read the form that is in evidence and . . . then allowed to read it himself in addition to having it read to him. That he indicated that he had no questions about that and that he consented to being questioned at that time.

The [c]court also finds, specifically, that the mother had been called and that the mother, in fact, also had been read the rights -- the form, rather, and that, in fact, she gave her consent to allowing the officers to question her son. And that she was asked and was encouraged, in the [c]court's opinion, to come to the police station and she agreed to do that. The [c]court finds that she was on her way or coming from an airport and that she did, in fact, arrive and arrive prior to the second interview. And it's important that the second interview is the interview wherein the juvenile, in fact, confesses to the incident that we are here for today during this trial.

The [c]court finds that the mother was treated very fairly and that the mother was cooperative. That the mother, in fact, spoke both on the phone and also personally, that the [c]court observed, to the detective as well . . . two detectives, at one point. And the [c]court finds that she understood. She asked questions, she responded and she obviously, in the [c]court's opinion, understood what was going on and what the detectives were asking her to consent to and knowingly consented. And her consent, in the court's opinion, was reasonably based upon the representations that were made to her, the form that was read to her and that it was, in fact, [c]onstitutional and proper, her consent.

Also, the [c]court finds that the second interview was in the presence of the mother, as opposed to most of the cases where that did not occur. And the [c]court finds that she was able, during that period of time, to ask questions. She was able and allowed to talk with the juvenile, both in English and in Spanish[,] and . . . there was no requirement that she speak in English to her son. The detectives were not putting any undue pressure on either the mother or the son in allowing them to talk in Spanish.

The [c]court finds that there was no undue pressure with respect to the second interview, which is where the confession was made with respect to the juvenile.

Next, addressing M.G.B.'s contention that he was physically exhausted, the trial court found the juvenile was afforded, as is talked

[a]bout in Presha, which is important obviously in this case -- he was afforded many breaks during the interrogation. One of the longest breaks was because the detective testified that between the first interview and the second interview, that the detective had to go and speak with the other individuals that were being held. Again, a proper procedure on the part of the police.

And that, in fact, required the detective to be out of the room where the juvenile was and the juvenile was observed by the [c]court and by everyone to not be tired at all during that period of time. He was humming. He was rapping, singing during that period of time. And he engaged in doing pushups during that period of time.

So the [c]court finds that he was very capable of entertaining himself, again, did not appear nervous, did not appear under any stress or any coercion during that period of time. And after that period, his mother came and that's when his mother was allowed to speak with him.

At no time does the [c]court find that there was anything that was asked that was really not supplied to the juvenile. he was, in fact, given -- in the [c]court's opinion, the more credible evidence is that he was given food initially by Detective [Malachelski]. The [c]court finds that was the testimony and the credible testimony.

The [c]court finds that the juvenile testified that he only had water. He sat through the -- he actually was there when he was drinking the Coke that was in front of him and he actually sat through the trial and observed himself drinking a Coca-Cola[,] and the [c]court, in fact, asked him separately about that and he again said that he did not remember that. The [c]court finds that his memory is not obviously as credible as the detectives' memory with respect to the facts in this case. And the [c]court finds their testimony to be more credible than his limited testimony with respect to this Miranda hearing.

On appeal defendant raises the following points for our consideration:








The search of a residence and seizure of evidence without a warrant is deemed presumptively invalid unless the State establishes the search was justified by one of the "'few specifically established and well-delineated exceptions' to the warrant requirement." State v. Frankel, 179 N.J. 586, 598 (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290, 298--99 (1978), cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004)). A search conducted pursuant to consent is one of the well-recognized exceptions to the warrant requirement. State v. Domicz, 188 N.J. 285, 305 (2006).

"[W]here the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent." State v. Johnson, 68 N.J. 349, 353-54 (1975). Proof that consent has been given with the knowledge of the right to refuse consent, in a non-custodial setting such as were the circumstances here, does not necessarily require police to affirmatively advise the person from whom consent is being sought of the right to refuse. Rather, our Court has framed the requirement as follows:

[I]n a non-custodial situation, such as is here presented, the police would not necessarily be required to advise the person of his right to refuse to consent to the search. Our decision is only that in such a situation if the State seeks to rely on consent as the basis for a search, it has the burden of demonstrating knowledge on the part of the person involved that he had a choice in the matter. [Id. at 354.]

In reviewing a trial court's grant or denial of a suppression motion, our standard of review requires that we uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006) (citing State v. Locurto, 157 N.J. 463, 474 (1999)), aff'd in part and rev'd in part, 192 N.J. 224 (2007); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause").

Further, we should defer to the findings of the trial judge, which are "substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). Therefore, it is not our role to disturb a trial court's factual findings merely because we may "have reached a different conclusion were [we] the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. Thus, we will set aside a trial court's findings if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid.

Here the trial court credited the testimony of Parole Officers Budenas, Diaz, and DeVirgilio, finding the testimony of these witnesses "very consistent testimony, very credible testimony[,] and [it] dealt with the issues in a way that [t]he

[c]court was able to get a flavor for what went on in the early morning hours of this particular incident." The court rejected defendant's contention that the circumstances confronting J.A. were coercive:

While there were five people at the door, three of those individuals were standing some approximately [twenty] feet, according to testimony, away[,] and two of those individuals approached him. They did not have any guns. They did not even have . . . uniforms that are typical police uniforms, but rather something that just read police on top of . . . standard street clothes.

Additionally, the court found that the police, in Spanish, explained to J.A. why they were there, and they specifically asked the question as to whether they had his permission to enter the premises. The court found the question posed to J.A. was: "Can we enter the premises?" The court reasoned that implicit in the very nature of the question was that J.A. had a choice to refuse permission to the officers to enter the premises.

Nor do we find that the trial court's findings are undermined by what M.G.B. characterizes as an intimidating and coercive environment confronting J.A. Without question, there were numerous law enforcement personnel present on the scene at the time J.A. was approached. Although the five officers standing outside of his residence were wearing plain clothes, they were also wearing bulletproof vests that indicated "POLICE." As the trial judge observed, only two of the five officers standing in front of the house actually approached the door. There is no evidence in the record that J.A. was aware of the other officers who were detailed to the rear of the residence to create a perimeter. Thus, the mere presence of so many officers, while a factor the trial judge considered, was not dispositive, given the totality of the circumstances as found by the trial court. State v. Boud, 240 N.J. Super. 171, 178 (App. Div. 1990).

In short, we do not conclude the court's findings were "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). Finally, because we are satisfied there is substantial credible evidence in the record that J.A.'s consent was voluntary, and given the knowledge of his right to refuse consent, we need not determine whether the officers were using the arrest warrant as a "surrogate for a search warrant," impermissible conduct under Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981), and State v. Miller, 342 N.J. Super. 474 (App. Div. 2001).

M.G.B.'s remaining points that the court erred in admitting his statements and erred in its application of the aggravating factors and erred in not finding mitigating factors are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).


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