Opinion
DOCKET NO. A-3584-09T2
01-11-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALDEN HINNANT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Paula T. Dow, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-01-0171.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).
Paula T. Dow, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following the trial court's denial of his suppression motion, defendant Alden Hinnant pled guilty to possession of a controlled dangerous substance in a school zone with intent to distribute, N.J.S.A. 2C:35-7, and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Consistent with the terms of the plea agreement, he was sentenced to an aggregate term of five years in prison, with three years of parole ineligibility. He appeals from his conviction, raising the following point for our consideration:
THE COURT ERRED IN DENYING HINNANT'S SUPPRESSION MOTION BECAUSE THE SEARCH PERFORMED BY THE POLICE EXCEEDED THE SCOPE OF THE CONSENT GIVEN BY DEFENDANT'S MOTHER.
Finding no merit in defendant's appellate arguments, we affirm the December 11, 2009 judgment of conviction (JOC).
Defendant was sentenced on November 13, 2009, but the JOC was signed on December 11, 2009.
I
This was the most pertinent evidence presented at the suppression hearing. On the morning of October 18, 2008, Jersey City police officer Anthony Goodman was conducting a drug surveillance operation on Bergen Avenue, which he described as "a high drug area." He observed defendant, Anthony Williams, and a third man known as "Fatty" playing dice on the corner of "Dwight and Bergen." He also observed Latrenda Thomas coming in and out of a house on Bergen Avenue. At some point, Goodman heard Thomas tell defendant that they were "almost out" and ask "if he had anything." Goodman believed Thomas meant that they were almost out of heroin and was asking defendant to obtain more. Defendant made a cell phone call and then told Thomas that "it'll be here in ten minutes."
Defendant and Anthony Williams walked away and came back after about ten minutes. Goodman then saw defendant enter and leave two different houses on Bergen Avenue. Goodman later learned that defendant's mother lived in an apartment in one of those houses.
Goodman watched defendant engage in several hand to hand drug sales. At one point during his surveillance, Goodman heard defendant tell a passing man, identified as William Young, that he had "bone deep," which was slang for heroin. Goodman saw defendant hand Young a bag of heroin and saw Young hand defendant money. At this point Goodman alerted the officers in his "perimeter units," who stopped Young and found heroin on his person. They also arrested Thomas, Williams and defendant. They recovered ten bags of heroin from defendant and one bag from Thomas.
Once defendant and the co-defendants were under arrest, Goodman noticed Officer Burgess and two other officers speaking with defendant's mother. After Goodman joined the group, the police asked the mother for consent to search her apartment. She signed a consent to search form, which by its terms permitted the police "to conduct a complete search" of the apartment. However, the police only searched the two unlocked back bedrooms, because the mother told them that defendant occupied both of those rooms. In the left bedroom, they found ammunition and a handgun. In the right bedroom, they found "brick paper," which is commonly used to package heroin.
According to Officer Goodman, defendant's mother was extremely cooperative with the police. In fact, she invited them into her apartment and told them that if there was "anything illegal," she wanted them to remove it. She specifically said that "[i]f there were drugs in her apartment she wanted them out."
Officer Michael Burgess, who was working on the perimeter unit, corroborated Goodman's testimony. He testified that after defendant was arrested on the street, his mother came out of her home and asked Burgess if her son was under arrest. Burgess and Goodman explained that defendant was arrested because they believed he was selling drugs. At that point, the mother appeared "annoyed" and "disgusted" at the possibility of drug dealing going on in her neighborhood. She said that she was the building superintendent and was not going to "put up . . . with the drug activity in the area." Stating that she wanted any drugs "out" of her apartment, she invited the police to come into her home and remove any other drugs that might be there.
After Officer Burgess explained the consent to search form, and her right to refuse to consent, defendant's mother voluntarily signed the form. Defendant's grandmother, who was also present in the apartment, signed as a witness. Burgess confirmed that the mother told police that defendant occupied the two back bedrooms, and those were the only rooms the police searched.
At the suppression hearing, defendant's mother testified that on the day of defendant's arrest, she lived in the apartment with her mother, her two sons, a nephew and a grandson. She denied inviting the officers to come into her home and denied that she signed a consent form before they conducted the search. She testified that she only let the officers search the apartment because they threatened to arrest her if she did not let them conduct the search. She testified that she told the police that the right-hand bedroom was defendant's room and the left-hand bedroom was occupied by her other son. The mother insisted that she felt "intimidated" into signing the consent form after the police told her that they found a gun in the second son's bedroom.
In a lengthy oral opinion issued on June 17, 2009, Judge Melvin S. Krakov found the police witnesses credible. He specifically believed the officers' testimony concerning the mother's cooperation, her request that the police search the apartment, and her voluntarily signing the consent to search form. He also believed their testimony that the mother told them that defendant used both of the back bedrooms. For reasons he explained in detail, including her confrontational demeanor, Judge Krakov did not find the mother to be a credible witness. He found that she signed the consent form voluntarily, knowing that she had a right to refuse. He also found that, because it was her apartment, she had authority to allow the police to search it, including the two unlocked back bedrooms.
II
On this appeal, defendant argues that the search improperly exceeded the scope of the mother's consent. However, defendant bases this argument on the mother's testimony that she only gave consent to search the back-right bedroom and not the back-left bedroom, where the police found the gun. We cannot agree with defendant's argument for two reasons.
First, the consent to search form gave the police permission to search the entire apartment. Second, and more significantly, defendant's argument is premised on the mother's testimony, which Judge Krakov did not find credible. Instead, the judge believed the officers' testimony that the mother told them defendant was using both of the back bedrooms and affirmatively asked them to find and remove any drugs from her apartment.
Our standard of review is deferential, and we will not disturb the judge's factual findings on a suppression motion, so long as they are "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal citations omitted). We owe particular deference to a judge's evaluation of witness credibility. Id. at 244; State v. Locurto, 157 N.J. 463, 474 (1999). On this record, we find no basis to second-guess the judge's decision to credit the police officers' testimony rather than the testimony of defendant's mother. Based on the judge's factual findings, the search was consistent with the scope of the mother's consent, which was knowing and voluntary. We affirm, substantially for the reasons stated in Judge Krakov's opinion.
Affirmed.