P.S. VS. BOARD OF REVIEW(BOARD OF REVIEW, DEPARTMENT OF LABOR)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 7, 2017
• Docket: A-0734-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0374-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE T. MITCHELL, a/k/a MITCHELL ANDRE,

Defendant-Appellant. ____________________________

Submitted January 25, 2017 – Decided March 1, 2017

Before Judges Accurso and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 12-10-1023.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence

seized pursuant to a search warrant, defendant Andre T. Mitchell pled guilty to second-degree possession of cocaine with intent

to distribute, N.J.S.A. 2C:35-5a(1), in accord with a negotiated

agreement and was sentenced to seven years in State prison with

three and a half years of parole ineligibility. He appeals the

denial of his motion, raising two issues for our consideration.

POINT I

THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THERE WAS NO CREDIBLE EVIDENCE THAT THE POLICE HAD COMPLIED WITH THE KNOCK AND ANNOUNCE REQUIREMENT OF THE SEARCH WARRANT.

POINT II

THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE POLICE DID NOT WAIT A REASONABLE AMOUNT OF TIME BEFORE THEY FORCIBLY ENTERED DEFENDANT'S APARTMENT. (Not Raised Below).

Because the State's evidence supports the trial court's factual

findings, and there was no error in its application of the law

to those facts, we affirm.

The only two witnesses at the suppression hearing were

defendant and the supervisor of the State Police Tactical Unit

which executed the "knock and announce" search warrant.

Defendant testified he was at his girlfriend's apartment in

Trenton watching television before going to pick up her son from

school when officers in "tactical army gear" broke down the door

to the apartment. He testified that although he and his

2 A-0374-15T1 girlfriend were sitting in one of the apartment's two bedrooms

not twenty feet from the front door, he did not hear a knock or

anyone call out before the officers broke through the door.

Defendant could not recall how many officers were involved or

whether their uniforms identified them as police. When the

judge asked about the television, defendant replied, "[w]e had

it on to an extent, but . . . we turned it down because, as I

had said, we [were] going to pick up her son from school so we

turned everything off" before hearing the bangs of the battering

ram.

The supervisor of the State Police Tactical Unit testified

the Trenton police requested his unit's assistance in executing

the search warrant for the apartment. After reviewing the

warrant, he and his nine-member team went with Trenton

detectives to defendant's apartment building shortly before

three o'clock in the afternoon.

After entering an open door on the first floor, the

officer's team proceeded up a stairwell to defendant's

girlfriend's apartment on the second floor. The officer

testified he knocked at the metal door "several times" and

announced "State Police," "[a]t least once." The officer

testified he had been a part of the tactical unit for ten years,

had executed over 1000 warrants and was familiar with the layout

3 A-0374-15T1 of the apartments. After waiting "about [twenty] seconds," long

enough to allow someone to answer the door, he and another

officer used a "rabbit tool" to force entry. Inside, Trenton

police recovered 229 grams of cocaine, three small baggies of

suspected marijuana, four glassine envelopes of suspected

heroin, narcotics paraphernalia, $466 in U.S. currency and a .22

caliber starter pistol.

Having heard the testimony, Judge Thomas Brown denied

defendant's motion to suppress the evidence, rejecting

defendant's argument the officers "failed to knock and announce

their presence prior to the forced entry." The judge found the

officer "testified credibly . . . consistent with the

requirements of the search warrant, that he knocked on the door

using his fist and yelled, . . . State Police, with the

intention to make his presence known. After waiting

approximately [twenty] seconds with no response," the officers

forced entry.

Judge Brown found:

In light of the holdings in [United States v.] Banks, [540 U.S. 31, 35-36, 124 S. Ct. 521, 524-25, 157 L. Ed. 2d 343, 352 (2003),] Hudson [v. Michigan, 547 U.S. 586, 594, 126 S. Ct. 2159, 2165, 165 L. Ed. 2d 56, 66 (2006)] and [State v.] Rockford, [213 N.J. 424, 450-52 (2013),] . . . waiting approximately [twenty] seconds was a reasonable amount of time given the time of

4 A-0374-15T1 day, the size of the apartment and the fact that there was reason to believe that the evidence; that is, narcotics, could be destroyed.

Based on the credible testimony and applying the applicable law,

the judge concluded "the warrant was executed in accordance with

its requirements." This appeal followed.

Our standard of review on a motion to suppress is limited.

State v. Gamble, 218 N.J. 412, 424-25 (2014). We "give

deference to those findings of the trial judge which are

substantially influenced by his opportunity to hear and see the

witnesses and to have the 'feel' of the case, which a reviewing

court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).

If our review satisfies us the trial court's factual findings

could reasonably have been reached on sufficient, credible

evidence present in the record, those findings are binding on

appeal. Gamble, supra, 218 N.J. at 424. Our review of the

trial court's application of the law to the facts, of course, is

plenary. State v. Hubbard, 222 N.J. 249, 263 (2015).

Having reviewed the motion transcripts and the current law

governing execution of a "knock and announce" search warrant,

see Rockford, supra, 213 N.J. at 450-52, defendant has given us

no cause to disturb the judge's factual findings or legal

conclusions here. Accordingly, we affirm Judge Brown's denial

5 A-0374-15T1 of defendant's motion to suppress substantially for the reasons

stated in his carefully reasoned opinion from the bench on March

6, 2014.

Affirmed.

6 A-0374-15T1