May 17, 2017
appeal from Superior Court of New Jersey, Law Division,
Middlesex County, Indictment No. 12-10-1597.
C. Bertucio argued the cause for appellant (Hobbie, Corrigan
& Bertucio, PC, attorneys; Edward C. Bertucio, of counsel
and on the briefs; Elyse S. Schindel, on the brief).
M. Liston, Assistant Prosecutor, argued the cause for
respondent (Andrew C. Carey, Middlesex County Prosecutor,
attorney; David M. Liston, on the brief).
Judges Fuentes, Simonelli and Carroll.
FUENTES, P.J.A.D. JUDGE.
Middlesex County grand jury returned an indictment against
defendant James Hemenway charging him with third degree
possession of cocaine, N.J.S.A. 2C:35-10(a)(1); first degree
possession of cocaine with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1); fourth degree
possession of marijuana, N.J.S.A. 2C:35-10(a)(3); and third
degree possession of marijuana with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11). The court
denied defendant's motion to suppress physical evidence
seized by the police from his apartment as well as statements
defendant made to the police officers who arrested him
outside of his apartment building.
thereafter entered into a negotiated agreement with the State
through which he pled guilty to second degree possession of
cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(1). The State agreed to dismiss the
remaining charges and recommend that the court sentence
defendant to a term of eight years, with four years of parole
ineligibility. Defendant preserved his right to appeal the
denial of his motion to suppress. See R. 3:5-7(d).
The court sentenced defendant to a custodial term in
accordance with the plea agreement, ordered the forfeiture of
defendant's property seized at the time of his arrest,
and imposed the mandatory fines and penalties.
appeal, defendant argues the court erred in denying his
motion to suppress because the arresting officers seized the
evidence found in his apartment without a warrant. After
reviewing the record developed before the motion judge, we
affirm. The police officers entered defendant's residence
pursuant to a search warrant issued by the Family Part under
the Prevention of Domestic Violence Act. When defendant
refused to permit the officers entry into his residence to
execute the search warrant, the officers lawfully arrested
defendant for knowingly obstructing the effectuation of a
judicial order pursuant to N.J.S.A. 2C:29-9(b)(1). Once
lawfully inside the residence, the officers found in plain
view illicit narcotics and paraphernalia. This provided
sufficient probable cause to sustain the search warrant
subsequently issued by the Criminal Part.
derive the following facts from the testimonial and
documentary evidence presented at the suppression hearing.
28, 2012, D.S. filed a complaint against defendant under
the Prevention of Domestic Violence Act (PDVA), N.J.S.A.
2C:25-17 to -35, seeking a temporary restraining order (TRO).
The complaint listed the following predicate offenses:
assault, N.J.S.A. 2C:12-1, terroristic threats, N.J.S.A.
2C:12-3, criminal mischief, N.J.S.A. 2C:17-3, and criminal
trespass, N.J.S.A. 2C:18- 3, and identified "dating
relationship" as the jurisdictional basis. Attached to
the complaint was the following narrative statement of the
incident that prompted D.S. to seek judicial relief:
6/27/12, [defendant] call via tel. argument ensued.
[Defendant] appeared at [plaintiff's] apt unannounced,
[defendant] broke into [plaintiff's] apt via the living
room window causing the air [ ] conditioner to fall &
damage [the] apt, [defendant] subjected [plaintiff] to name
calling, yelling foul, language, [defendant] pushed
[plaintiff] & she fell & hit herself with the living
room chair, [plaintiff's] mother entered the living room,
[plaintiff's] mother tried to get [defendant] off of
[plaintiff], [defendant] became enraged, [defendant] pushed
[plaintiff's] mother, [defendant] then punched
[plaintiff's] mother with a closed fist, [defendant] then
scratched [plaintiff's] mother on her face, [plaintiff]
attempted to push [defendant] off of her mother, [defendant]
then began to strangle [plaintiff] by her throat, [plaintiff]
pulled [defendant's] hair, [defendant] pushed [plaintiff]
causing [plaintiff] to fall on the ground, [plaintiff's]
mother attempted to call EPD but [defendant] hit her on the
hand causing [plaintiff's] mother['s] cellphone to
fall on the ground & [break], [defendant] said,
"I'm going to kill you ! ! ! kill your mom, kill
your dad & brother ! ! ! I'm going to get someone to
throw [acid] on your face ! !" Shortly thereafter
[defendant] left [plaintiff's] apt.
appeared before a Family Part judge in Union County that same
day without counsel to testify at an ex parte hearing in
support of her application for the TRO against defendant. The
transcript of the TRO hearing reflects that D.S. testified
with the assistance of an interpreter. The Family Part judge
elicited the following testimonial evidence from D.S.:
THE COURT: Did you have a dating relationship at one time
D.S.: Yes. For two years.
THE COURT: You say that on [June] 2 8th[, ] which
is today[, ] at 10:30 a.m., you sa[w] [defendant] in front of
a bank parking lot. Is that correct?
THE COURT: And there was some exchange of money. Is that
THE COURT: And then did he say to you, you will never see
your mother again[;] I will kill her?
THE COURT: Did he say, I will destroy you and your family?
THE COURT: Did he say, I will destroy your car?
THE COURT: And did he say he would cause you bodily harm?
THE COURT: On . . . June 2 7th, which [was]
yesterday, did you speak to him on the phone?
THE COURT: And then did he come to your apartment and come
through the window?
D.S.: He knocked down the air conditioner and came through
THE COURT: Did he have permission to do that?
D. S.: No.
THE COURT: And then he pushed you, and you fell. Is that
THE COURT: Okay. And your complaint has more details. You
have a child with [defendant]?
D. S.: No.
THE COURT: Okay . . . [D]o you have [an] awareness that he
has any weapons?
THE COURT: What kind of weapons do you claim he has?
D.S.: Handguns, knives.
THE COURT: A handgun?
D.S.: Knives, blades.
THE COURT: Handguns?
THE COURT: Knives?
THE COURT: Where does he have these?
D.S.: Special compartments in his car and at his apartment.
THE COURT: What kind of car does he have?
D.S.: Honda Pilot.
THE COURT: A Honda - - Honda Hybrid?
D.S.: Pilot. Pilot.
THE COURT: Pilot?
THE INTERPRETER: P-I-L-O-T.
on D.S.'s testimony, the Family Part found sufficient
evidence to issue a TRO against defendant pursuant to
N.J.S.A. 2C:25-28(g). As authorized by N.J.S.A. 2C:25-28(j),
the TRO included a provision "prohibit[ing] . . .
[defendant] from possessing any and all firearms or other
weapons" and authorized the police officers to search
for and seize any "handguns, knives [and]
switchblades." D.S. provided the Family Part with
defendant's home address and the make, model, and color
of each of his three vehicles. The TRO expressly authorized
the police officers to search defendant's residence and
vehicles and seize any weapons found therein.
29, 2012, Old Bridge Police Officers Brandon Ward and Edward
Riporti were instructed to serve defendant with the TRO and
search warrant at his residence between the hours of 5:30
p.m. and 7:30 p.m. The officers knocked on the door of
defendant's residence, but no one answered. Ward
recognized the Honda Pilot and Honda Accord described in the
search warrant parked near the apartment complex where
defendant resided. He also detected an odor of marijuana
emanating from the vicinity of defendant's apartment, but
was unable to pinpoint its source. The officers decided to
leave and return later before the end of their shift.
hours later, defendant's attorney contacted the Old
Bridge Police Department and advised the dispatcher that
defendant was aware of the TRO and intended to voluntarily go
to the police station to accept service. Ward told the police
dispatcher that he planned to return to defendant's
residence as soon as possible because the judge who issued
the TRO and search warrant directed the officers to serve
defendant at his place of residence, not at a neutral
location. Ward then contacted ...