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State of New Jersey In the

August 29, 2012

STATE OF NEW JERSEY IN THE INTEREST OF M.G.B., A JUVENILE.


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

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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