Opinion
DOCKET NO. A-5778-13T3
02-17-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MAX SIMEUS, a/k/a MAX SAMUELS, MAX ST. VICTOR, MAX ARSON SIMEUS, MAX ARSON SIMEOUS, MSKI MONIKER, SKI SIMEUS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Jennifer Ljungberg, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Leone. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-02-0256. Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Jennifer Ljungberg, Assistant Prosecutor, on the brief). PER CURIAM
After his suppression motion was denied, defendant Max Simeus pled guilty to first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(6). He was sentenced on May 5, 2014, to ten years in prison, with a thirty-month parole bar. Defendant appeals the conviction, focusing on the denial of the suppression motion, and he appeals from the sentence. He presents these points of argument:
I. BECAUSE MR. SIMEUS' CONSENT TO SEARCH WAS [OBTAINED] AS A RESULT OF [COERCIVE] CIRCUMSTANCES, THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE RESULTING FROM THE WARRENTLESS SEARCH OF HIS HOMES (U.S. CONST., AMENDS. IV AND XIV; N.J. CONST. (1947), ARTICLE 1, PAR. 7) (RAISED BELOW).
1) His consent was made once he was already arrested.
2) His consent was given while he was handcuffed.
3) His consent was obtained despite a denial of guilt, but after the police claim he made an admission.
4) His consent resulted in seizure of contraband which Simeus must have known would be discovered.
5) Simeus was surrounded by officers.
6) Simeus was told that if police obtained a warrant to search his family home, his wife would be arrested and other members of the household would be removed surrounded by officers.
7) Simeus' assistance to police is not indicative of the voluntariness of his consent.
II. THE SENTENCE WAS EXCESSIVE AS THE COURT FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS IN SENTENCING MR. SIMEUS TO A FIVE-YEAR [SIC] TERM OF INCARCERATION WITH A THREE-YEAR [SIC] PERIOD OF PAROLE INELIGIBILITY.We affirm.
Judge Joseph V. Isabella correctly addressed the suppression motion in a written opinion dated December 9, 2013, and the motion does not warrant lengthy additional discussion here. Our review of the judge's factual findings is limited to determining whether they are supported by sufficient credible evidence, giving particular deference to his credibility determinations. State v. Mann, 203 N.J. 328, 336-37 (2010). However, we review the judge's legal interpretations de novo. Id. at 337.
According to police witnesses, they observed defendant standing near an apartment building on Wilkinson Avenue, selling cigarettes dipped in what they believed was phencyclidine (PCP). When the police approached defendant, he dropped a jar containing suspected PCP. The police recovered the jar and arrested him.
Based on his evaluation of witness credibility, the judge determined that after plaintiff was read his Miranda rights, he told the police that he had jars of PCP in apartments on Wilkinson Avenue and Mallory Avenue. The judge found that defendant gave "verbal consent" to a search of the Wilkinson apartment, where the police found twelve jars containing suspected PCP residue. After the police advised defendant that they would apply for a warrant if he did not consent to a search of the Mallory apartment, defendant gave his written consent to a search of that apartment.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The judge concluded that both consents to search were given voluntarily, without coercion, and after the police advised defendant of his right to refuse consent. He found the police made a "fair prediction" rather than a "deceptive threat" in stating that they would obtain a warrant. See State v. Cancel, 256 N.J. Super. 430, 434 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993). The judge did not credit defendant's testimony that he objected to the search of the Wilkinson apartment but the police seized his keys and let themselves in despite his lack of consent. The judge also rejected as not credible defendant's testimony that the police threatened to arrest his wife and bring his children to the Division of Child Protection and Permanency if he did not consent to the search of the Mallory apartment.
The agency was formerly known as the Division of Youth and Family Services (DYFS). --------
We find no basis to disturb the judge's factual findings, including his decision that the three police officers who testified concerning the search gave credible testimony and that defendant's testimony was not credible. In light of the judge's factual findings, his legal conclusions are unassailable. Citing the factors set forth in State v. King, 44 N.J. 346, 352-53 (1965), defendant contends that his consent was not voluntary. However, his arguments depend heavily upon his version of the facts, which the judge did not believe.
Defendant's challenge to the sentence is equally without merit. For the first time on appeal, defendant argues that the judge should have considered the hardship to his family as a mitigating factor. See N.J.S.A. 2C:44-1(b)(11). We cannot agree. In the pre-sentence interview, defendant admitted that he did not support his children and that his wife both worked and cared for the children.
Defendant's point heading incorrectly characterizes the sentence as involving five years in prison with a three-year period of parole ineligibility. The sentence was ten years, which was the minimum sentence for a first-degree crime. N.J.S.A. 2C:43-6(a)(1). Moreover, the two and one-half-year period of parole ineligibility was actually lower than the one-third of the sentence normally imposed for first-degree CDS possession with intent to distribute. See N.J.S.A. 2C:43-6(f). The judge imposed the more lenient parole ineligibility term provided for in the plea agreement, and could not impose a lesser term, under N.J.S.A. 2C:35-12. We find no abuse of discretion in the sentence. See State v. Bolvito, 217 N.J. 221, 228 (2014).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION