NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-08-1209.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves and Espinosa.
Defendant Joseph T. Wands appeals from his conviction for third-degree receiving stolen property, N.J.S.A. 2C:20-7, and argues that the motion judge erred in denying his motion to suppress statements and evidence. We affirm.
The facts are derived from the testimony of Officer Richard Belotti and Sergeant Russell Anderson of the Sayreville Police Department, the only witnesses at the evidentiary hearing.
Belotti, Anderson, and Detective Jeffrey Sprague went to defendant's residence in the course of their investigation into a burglary and theft at Auto Team, a car rental company where defendant's employment had recently been terminated. The items stolen included twenty GPS units, power tools, an HP PDA Palm Pilot, a circular Miter saw, a Dell laptop computer, and an iPod docking station. Belotti and Anderson entered the vestibule of the two-family home and walked upstairs to the unit where defendant resided. Belotti testified that, as they stood outside, they could hear a male voice "talking about circular saws and things this male was trying to sell or get rid of."
The officers knocked on the door. Although he did not reside there, T.J. Carlin, a person known to Anderson, opened the door. Anderson testified that he said, "Thomas, how you doing[, ]" and Carlin extended his hand to him. Anderson testified that he had to step through the doorway to shake Carlin's hand. He asked Carlin who he was talking to. Carlin replied, "it wasn't me. It was Joe." Anderson then asked, "Where's Joe?" and looked around. Anderson "yelled for Joe" two or three times and, getting no answer, again asked Carlin where he was. Carlin said he was "right here, " referring to a room beyond a curtain-covered doorway. Carlin and the two officers proceeded to the doorway. Anderson pulled back the curtain and saw defendant in the closet, talking on the phone, and asked him to "[c]ome up here." Defendant stepped out of the closet.
Although defendant was a suspect in the burglary, Belotti testified he did not provide him with his Miranda rights because he was not in custody. Belotti asked defendant what he was talking about on the phone. Defendant denied talking about selling any power tools or circular saws. Belotti then explained why the officers were there, mentioning the Auto Team burglary. Defendant said he no longer worked there and had not been there, and then "blurt[ed] out that he ha[d] in his possession nail guns from that employer that he had obtained over time[.]" The officers asked if defendant's employer knew that he had the nail guns and defendant replied that he did not.
The officers asked defendant for his consent to search the apartment. Although defendant consented to a search, the officers decided to apply for a search warrant because he appeared to be under the influence of "some sort of intoxicant or narcotic" and mentioned to Anderson that he "had some Oxies[, ]" referring to Oxycodone. They saw items in plain view that matched the description of items taken in the Auto Team burglary, i.e., a laptop computer and an iPod docking station, secured the apartment, and asked defendant to accompany them to headquarters.
Belotti gave defendant Miranda warnings on videotape in the interview room, as witnessed by Anderson. Belotti told defendant, who was not handcuffed, that he was not under arrest. Defendant agreed to be questioned and was asked about his whereabouts on the weekend of the ...