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State v. Perez

Superior Court of New Jersey, Appellate Division

September 16, 2013

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
CARMELO PEREZ, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 19, 2012

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-08-1467.

Edward J. DeFazio, Hudson County Prosecutor, attorney for appellant (Gina Giordano, Assistant Prosecutor, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

Before Judges Fuentes and Koblitz.

FUENTES, P.J.A.D.

Defendant Carmelo Perez pleaded guilty to second degree possession of a firearm by a person previously convicted of one of the crimes enumerated in N.J.S.A. 2C:39-7(b), [1] expressly reserving his right to seek appellate review of the trial court's decision to deny his motion to suppress evidence pursuant to Rule 3:5-7(d). Prior to sentencing, the court reversed its earlier ruling and granted defendant's motion to suppress a firearm seized by the police at defendant's residence at the time of his arrest.

Consequently, the court vacated defendant's guilty plea. In reaching this result, the motion judge inexplicably rejected his prior factual findings justifying the seizure of the weapon under the plain view doctrine. The judge found the limited warrantless search of defendant's residence, conducted by the police officers who responded to a 9-1-1 call alleging domestic violence with a firearm, exceeded the scope of permissible conduct by the police sanctioned by our Supreme Court in State v. Davila, 203 N.J. 97 (2010).

By leave granted, the State appeals arguing that the trial judge misapplied the Court's holding in Davila because, under these circumstances, the police officers were legally justified in conducting a limited warrantless search of defendant's residence and seizing the weapon found therein pursuant to N.J.S.A. 2C:21-25d. We agree and reverse. The record shows that the police officers had both probable cause and exigent circumstances to conduct a limited warrantless search of defendant's apartment to locate and seize a shotgun that had been allegedly used by defendant to commit an act of domestic violence against his wife. The actions taken by the police here are expressly authorized under the Prevention of Domestic Violence Act. State v. Cassidy, 179 N.J. 150, 163-64 (2004); N.J.S.A. 2C:25-21d.

We also hold that the motion judge violated his obligation under Rule 1:7-4(a) and (b), when he failed to provide any explanation for his decision to reject material factual findings he had made ten months earlier in support of his first ruling denying defendant's motion to suppress. We therefore reinstate the trial court's original order upholding the validity of the limited warrantless search of defendant's residence conducted by the responding officers as authorized under N.J.S.A. 2C:25-21d and approved by the Court in Cassidy, as well as the seizure of the shotgun allegedly used by defendant to commit an act of domestic violence against his wife.

I

At approximately 10:28 p.m. on May 22, 2009, Union City Police Officer Corey Corbo responded to a 9-1-1 call of "domestic [violence] involving a gun." Because the caller specifically mentioned a firearm, Corbo testified that upon arriving at the address indicated by the 9-1-1 dispatcher "we[2]entered [the building] tactically."[3] According to Corbo, when defendant opened the door of the apartment identified by the 9-1-1 caller, "[w]e at gunpoint, . . . had him get down to the ground. He was handcuffed."

Corbo then "sat [defendant] down on the sofa" and proceeded to talk to the other people in the apartment to investigate what prompted the 9-1-1 call. The first person Corbo spoke to was a woman whom the officer described as defendant's wife. Corbo described her demeanor as "visibly upset;" she also denied that anything untoward had occurred. A young boy, identified as defendant's son "Jeffrey, "[4] was also in the apartment. Corbo testified that Jeffrey was "visibly upset. Crying, shaking. Obviously upset."

Corbo also discovered a second child "in the shower" at the time he entered defendant's apartment. Corbo described this child as defendant's "youngest son." Although he did not recall the child's name, Corbo testified that the boy "came out in the middle of the investigation." The only other reference to this child in the record is found in defendant's testimony. We will describe the role this child played in the case when we summarize defendant's testimony.

Given Jeffrey's emotional state, Corbo initially focused his concern on this child. He asked Jeffrey "if everything was okay, if there was anything we could do." Noticing the child's hesitancy to respond, Corbo said:

I asked him if he was the person that call [sic] 911. And he stated that he did. And I asked him if - - if he saw a gun. And he proceeded to tell me that his parents were having a heated argument in Spanish. He understands some Spanish, but not . . . the details, but it was an obvious heated argument.
And when his mother mentioned that she was going to call the police, [Jeffrey] stated Mr. Perez walked into the bedroom, then walked out of the bedroom holding a shotgun pumping it repeatedly screaming, "Call the police! Call the police!" (Emphasis added).

By this time, other officers had arrived and were inside defendant's apartment. Among the newly arrived officers was Union City Police Detective Ruben Rodriguez. According to Corbo, after Rodriguez heard Jeffrey say that defendant had come out of the bedroom holding a shotgun and threatening his mother, Rodriguez immediately went inside the bedroom while Corbo took Jeffrey to another area of the apartment. Rodriguez soon came out of the bedroom holding a sawed-off shotgun.

Rodriguez's account of the events that led him to locate and seize the shotgun is not entirely consistent with Corbo's testimony. Rodriguez agreed, however, with Corbo's description of the demeanor of defendant's wife. Rodriguez described her as uncooperative.

She wasn't answering any of our questions. Then I proceeded to the bedroom where Officer Corbo was speaking to a child in the bedroom. The child was very upset, crying, talking to Officer Corbo. And in the midst of that, the child mentioned that the father had pointed a shotgun at the mother.
After I spoke to the child and he mentioned that his father had pointed a shotgun at the mother, I exited the bedroom and I proceeded to Mr. Perez who was sitting on the sofa in the living room handcuffed. I advised him of his Miranda[5] rights, and I asked him did - - is there a gun inside the apartment. Your child is saying that you pointed a gun at the mother..
Q. And what, if anything, did he say in response to that?
A. He was very irate in the beginning. He kept on cursing. He didn't want to cooperate. I believe it's because he heard - - he must have heard his child crying. I'm not sure of that. However, he just then admitted. He said, ...

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