October 25, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
EDUARDO GONZALEZ, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 18, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-10-1745.
Tomas Espinosa, attorney for appellant.
John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
Before Judges Fuentes, Simonelli and Haas.
Defendant Eduardo Gonzalez owned a discothèque in Union City. He had no license to sell alcoholic beverages at the establishment. While executing a search warrant at the building that housed the discothèque, the Union City police found a large volume of alcoholic beverages and other items that indicated defendant was illegally selling alcoholic beverages. A grand jury indicted for fourth-degree selling alcoholic beverages without a license, N.J.S.A. 33:1-50a; fourth-degree possession of alcoholic beverages with intent to sell without a license, N.J.S.A. 33:1-50b; and fourth-degree possession of paraphernalia to sell alcoholic beverages without a license, N.J.S.A. 33:1-50c. Following a jury trial, defendant was convicted on all counts. On appeal defendant raises the following contentions:
THE WARRANT DID NOT INCLUDE IN ITS LANGUAGE THE LIVING QUARTERS OF THE APPELLANT THAT WAS A SEPARATE STRUCTURE.
THE SEARCH WENT BEYOND THE SCOPE OF THE WARRANT AND THE OBJECT OBTAINED AS EVIDENCE SHOULD BE [SUPPRESSED] AS FRUIT OF AN ILLEGAL SEARCH.
THE COURT BELOW ERRED IN NOT GRANTING THE APPELLANT'S MOTION FOR A JUDGMENT OF [ACQUITTAL].
THE COMBINATION OF THE STATE HAVING NOT MET ITS BURDEN AT THE END OF THE STATE CASE WITH THAT COUPLED WITH PERSONAL USE UNDER N.J.S.A. 33:1-2 SHOULD HAVE GIVEN [OVERWHELMING] GROUND FOR A JUDGMENT OF [ACQUITTAL].
THE [EVIDENCE] THAT WAS NOT INCLUDED WITHIN THE LIST OF INVENTORY DULY CERTIFIED BY THE OFFICER IN CHARGE OF [EXECUTION] SHOULD BE DEEMED OBTAINED ILLEGALLY AND OBTAINED IN VIOLATION OF THE [FOURTH] AMENDMENT.
We reject these contentions and affirm.
We derive the following facts from the record. Defendant's discothèque was located at 4528 Bergenline Avenue. The police obtained a search warrant after receiving information that defendant was illegally selling alcoholic beverages at the discothèque. The warrant authorized a search of the "premises known as 4528 Bergenline Avenue, office(s) and basement and described as a single story Commercial Building." The warrant authorized the police to search for
property consisting of unlicensed alcoholic beverages, proceeds from the sale thereof, items that would aid in the manufacture, sale, distribution, bottling, rectifying, blending, treating, fortifying, mixing, processing, warehousing, advertising and or transporting alcoholic beverages and any and all records, monies, papers, documents, and items pertaining thereto. In addition any and all video recording equipment and peripheral equipment used to store video images to any hard drive, computer or computer hardware and all records, data and files stored within.
On June 1, 2010, the police executed the warrant at approximately 2:00 a.m., when the discothèque was closed. The police entered the premises through a rear door and knocked and announced their presence, but no one was there, including defendant. The police unhinged a locked metal door, removed it, and entered into the rear storage room and office area. They searched the entire premises, including the main floor area and an approximately eight- by twelve-foot rear storage room and smaller office adjoining it, both of which were connected to the discothèque. The storage room had a shower and sink, and contained defendant's clothing and personal items. The office had a desk, computer, convertible sofa, defendant's personal items, business items, bank documents, televisions, and a video surveillance recording system that defendant used to conduct surveillance of the bar area, but there was no kitchen, kitchen appliances, bathroom or bedroom.
In the storage room the police found two sealed cases, one filled with bottles of Georgi Vodka and the other filled with bottles of Palo Viejo Rum, as well as a garbage can containing sealed bottles of Coors Light, Corona, and Modelo. In the office they found sealed and unsealed bottles of John Barr Blended Scotch Whiskey, Hennessy Cognac, Buchanan Whiskey and Aguardiente Antíoqueño.
The police proceeded through the storage room and into the main floor area where there was a bar, numerous tables and chairs and a dance floor. Behind the bar area they found sealed cans of Red Bull, sealed bottles of non-alcoholic wine and beer, and sealed and unsealed bottles of non-alcoholic drink mixers, such as Finest Call Mojito Mix, Finest Call Sour Apple Martini Mix, Jose Cuervo Margarita Mix, Rose's Pomegranate Twist Mix, Rose's Cranberry Twist Mix. They also found machines that were designed for dispensing mixed drinks, and numerous refrigerated coolers containing hundreds of cans of Red Bull, and the same types of sealed or unsealed bottles of non-alcoholic beer and mixers found behind the bar. The unsealed bottles of nonalcoholic mixers appeared to have been altered with a different liquid. In the coatroom the police found tickets labeled "Good for one drink, " and in an outside area adjacent to the rear door they found twenty-two garbage bags containing empty bottles of vodka, rum, and non-alcoholic mixers that were consistent with what they found inside.
The police photographed the items they found and transported them to police headquarters. They also photographed the premises. The photographs were admitted into evidence and shown to the jury. Defendant also played a surveillance video to the jury, which showed the police finding and opening the sealed cases of vodka and rum in the rear storage room.
Defendant claimed that the storage room and office were not part of the discothèque but were his personal living quarters. He also claimed that the alcohol found in this area was for his personal consumption, or it belonged to someone else who left it after a party at the discothèque. Prior to trial, defendant filed a motion to suppress. He argued that because the search warrant did not include his living quarters, the police lacked authority to search it. The trial judge denied the motion, finding that the warrant authorized the police to search the office, which was connected to the discothèque by an inner door, and defendant used the office for business purposes.
Defendant moved for a judgment of acquittal at the close of the State's case, raising essentially the same arguments he raised on his motion to suppress. The trial judge found that the evidence did not establish that the rear storage room and office were defendant's personal living quarters, and this issue was irrelevant to the real issue of whether the alcoholic beverages were there for the purpose of sale or defendant's personal consumption. The judge determined that a reasonable jury could infer from the volume of alcoholic beverages found that they were there in contemplation of sale.
Defendant testified that he did not sell alcoholic beverages at the discothèque and rear storage room and office were separate from the discothèque and his private living quarters. He explained that he was a "super social drinker" and the sealed bottles of vodka and rum were for his personal consumption. He also explained that unsealed bottles of alcohol contained distilled water, and the other alcohol and beer belonged to the person who had a party at the discothèque. The jury presumably did not believe defendant and found him guilty on all counts. This appeal followed.
We first address defendant's contentions in Points III and IV that because the State failed to satisfy its burden of proof on all of the charges, the judge erred in denying his motion for judgment of acquittal at the close of the State's case. This court uses the same standard as the trial judge in reviewing a motion for judgment of acquittal. State v. Bunch, 180 N.J. 534, 548-49 (2004). This court must determine
whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find [defendant] guilt[y] of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]
Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Muniz, 150 N.J.Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J. 473 (1978). "If the evidence satisfies that standard, the motion must be denied." State v Spivey, 179 N.J. 229, 236 (2004).
N.J.S.A. 33:1-50 makes it a crime to:
Manufacture, sell, distribute, bottle, rectify, blend, treat, fortify, mix, process, warehouse or transport any alcoholic beverage in violation of this chapter; or
Import, own, possess, keep or store in this state alcoholic beverages with intent to manufacture, sell, distribute, bottle, rectify, blend, treat, fortify, mix, process, warehouse or transport alcoholic beverages in violation of the provisions of this chapter; or
Own, possess, keep or store in this state any implement or paraphernalia for the manufacture, sale, distribution, bottling, rectifying, blending, treating, fortifying, mixing, processing, warehousing or transportation of alcoholic beverages with intent to use the same in the manufacture, sale, distribution, bottling, rectifying, blending, treating, fortifying, mixing, processing, warehousing or transportation of alcoholic beverages in violation of this chapter[.]
Here, the police found a large amounts of hard liquor and beer inside the premises, as well as drink mixers, machines that dispensed mixed drinks, and tickets labeled "Good for one drink." Outside the premises they found twenty-two garbage bags filled with empty bottles of the same types of hard liquor, beer and drink mixers that were found inside the premises. Viewing the evidence in its entirety and giving the State all favorable inferences, there was more than sufficient evidence for a reasonable jury to find defendant guilty of all charges beyond a reasonable doubt. Accordingly, the judge properly denied defendant's motion for judgment of acquittal at the close of the State's case.
We have considered defendant's remaining contentions in Points I, II and V in light of the record and applicable legal principles and conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2) However, we make these brief comments.
A search warrant must particularly describe the place to be searched and the persons or things to be seized. State v. Sheehan, 217 N.J.Super. 20, 28 (App. Div. 1987). The search warrant in this case particularly described the place to be searched as the entire building located at located at 4528 Bergenline Avenue, including the basement and office. The rear storage room and office were part of the building and were connected to the discothèque. Thus, the police had authority to search those areas.
"In the absence of bad faith, no search or seizure made with a search warrant shall be deemed unlawful because of technical insufficiencies or irregularities in the warrant or in the papers or proceedings to obtain it, or in its execution." R. 3:5-7(g). Ministerial missteps do not form a sufficient basis to vitiate the result of an otherwise properly executed warrant. See State v. Pointer, 135 N.J.Super. 472, 478-79 (App. Div.), certif. denied, 69 N.J. 79 (1975) (holding that failure to file the affidavit and warrant with the office of the county clerk and failure to deliver a written copy of the search warrant to the party whose premises was searched until the following day does not require suppression of the fruits of the search). There was no evidence of bad faith on the part of the police in failing to include the vodka and rum on the inventory of property taken. In any event, the vodka and rum found in the storage area were depicted on the photographs shown to the jury, and on the surveillance video, which defendant played to the jury. The failure of the police to include the vodka and rum on the inventory of property taken was, therefore, a technical oversight that did not prejudice defendant.