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State v. Mitchell

Superior Court of New Jersey, Appellate Division

December 19, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
HENRY J. MITCHELL, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 25, 2013

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 10-07-1255, 10-12-2308 and 11-09-1776.

Joseph K. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Ashlea D. Thomas,

Deputy Attorney General, of counsel and on the brief).

Before Judges Sapp-Peterson and Sabatino.

PER CURIAM

Following the denial of his suppression motion, defendant negotiated a plea agreement and pled guilty to various narcotics offenses, specifically third-degree possession of cocaine and heroin, N.J.S.A. 2C:35-10a(1), third-degree distribution of cocaine, N.J.S.A. 2C:35-5b(3), and third-degree resisting arrest, N.J.S.A. 2C:29-2a(2). On appeal defendant contends:

POINT ONE
THE POLICE OFFICER WAS A DE FACTO PEEPING TOM, VIOLATING DEFENDANT'S REASONABLE EXPECTATION OF PRIVACY IN THE CONVERSION VAN BY SPYING INTO THE VAN FROM CLOSE DISTANCE THROUGH A FOUR TO FIVE INCH GAP AT THE BOTTOM OF A LARGE PICTURE WINDOW OTHERWISE ENTIRELY COVERED BY BLINDS. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. ART. I, PARA. 7.

We reject defendant's contention that the arresting officer was effectively a "Peeping Tom" when he "stealthily approached the conversion van to look through a four to five inch gap at the bottom of a large picture window." We affirm substantially for the reasons expressed by Judge Jamie Perri, in her cogent and well-reasoned June 2, 2011 oral opinion.

I.

We derive the facts from the sole witness who testified at the suppression hearing, Matthew Lloyd, an Aberdeen Township police officer. Officer Lloyd testified that he was on routine patrol in the area of Kennedy and Ruth Lanes around 7:00 p.m., on January 21, 2010. He described the area as a location known for a high level of narcotics activities. His attention was drawn to a Chevrolet conversion van parked inside of the curve of the roadway. As a result of the vehicle's location, a portion of it actually protruded into the traveled portion of the roadway. As the officer drove past the vehicle, he shined his high intensity ...


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