NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 09-08-1412 and 10-01-0084.
Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Turner, of counsel and on the brief).
Kenneth A. Burden, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Burden, of counsel and on the brief).
Before Judges Ostrer and Hayden.
After the court denied his suppression motion, defendant entered a plea of guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. The State dismissed an indictment that charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1), or -3a(2); first–degree felony murder, N.J.S.A. 2C:11-3a(3); first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree certain person not to possess a weapon, N.J.S.A. 2C:39-7a. As part of the plea agreement, defendant also pleaded to second-degree robbery as charged in a different indictment.
The court sentenced defendant to a seventeen-year term on the manslaughter conviction, concurrent with a ten-year term on the robbery conviction; each with an eighty-five percent period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In so doing, the court rejected the State's argument, allowed under the plea agreement, for a twenty-year term on the manslaughter count. The court also rejected defendant's arguments for a fifteen-year term on the manslaughter count, as well as a five-year term on the robbery conviction.
Defendant now appeals from the denial of his motion to suppress the fruits of a consent search of a plastic bag that defendant left in a hamper in the home of his daughter's mother, Evelyn Goyanes. The trial court rejected defendant's argument that Goyanes did not voluntarily give her consent. Defendant now abandons the voluntariness issues and argues before us that Goyanes lacked the authority to consent to a search of defendant's property. He also argues that his sentence was excessive.
We discern the following facts from the record of the suppression hearing at which Hudson County Prosecutor's Office Detective Jose Diaz, Goyanes, and Brenda Ramos, a friend of Goyanes, testified. Diaz was assigned to investigate the homicide of Manuel Reyes on May 6, 2009. Diaz learned that defendant was the last person seen with the victim. Diaz also knew that Goyanes, a long-time acquaintance, had also been defendant's girlfriend, they had a five-year-old daughter together, and they had lived together for over six years. When Diaz initially questioned Goyanes about defendant's whereabouts, she told him that she "threw him out of the apartment" because of his drug abuse, and she had not seen him.
Defendant was arrested in New York City on May 7, 2009, and disclosed that he did visit Goyanes's apartment the night of the homicide. Diaz and other officers returned to her apartment to question her. Diaz testified that during a private conversation between Diaz and Goyanes in her bedroom, Goyanes admitted that defendant visited the apartment the previous night. She explained that he took his shoes off in the hallway; entered a bedroom to kiss his daughter; retrieved his ...