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State v. Hemenway

Superior Court of New Jersey, Appellate Division

April 16, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JAMES HEMENWAY a/k/a JAMES A. HEMENWAY and JASON PAYNE, Defendant-Appellant.

          Argued May 17, 2017

          On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-10-1597.

          Edward 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).

          David M. Liston, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; David M. Liston, on the brief).

          Before Judges Fuentes, Simonelli and Carroll.

          OPINION

          FUENTES, P.J.A.D. JUDGE.

         A 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.

         Defendant 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.

         In this 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.

         We derive the following facts from the testimonial and documentary evidence presented at the suppression hearing.

         I

         On June 28, 2012, D.S.[1] 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.

         D.S. 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 with [defendant]?
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?
D.S.: Yes.
THE COURT: And there was some exchange of money. Is that right?
D.S.: Yes.
THE COURT: And then did he say to you, you will never see your mother again[;] I will kill her?
D.S.: Yes.
THE COURT: Did he say, I will destroy you and your family?
D.S.: Yes.
THE COURT: Did he say, I will destroy your car?
D.S.: Yes.
THE COURT: And did he say he would cause you bodily harm?
D.S.: Yes.
THE COURT: On . . . June 2 7th, which [was] yesterday, did you speak to him on the phone?
D.S.: Yes.
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 window.
THE COURT: Did he have permission to do that?
D. S.: No.
THE COURT: And then he pushed you, and you fell. Is that right?
D.S.: Yes.
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?
D.S.: Yes.
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?
D.S.: Switchblades.
THE COURT: Knives?
D.S.: Switchblades.
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.

         Based 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.

         On June 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.

         Several 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 ...


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