State of New Jersey v. Kenneth C. Saal

• Court: New Jersey Superior Court Appellate Division
• Decided: December 9, 2024
• Docket: A-2040-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2040-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH C. SAAL,

Defendant-Appellant. _________________________

Submitted October 17, 2024 – Decided December 9, 2024

Before Judges Rose and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 19-11- 1740 and Accusation No. 22-11-0660.

Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Matthew J. Platkin, Attorney General, attorney for respondent (Bethany L. Deal, Deputy Attorney General, of counsel and on the brief).

PER CURIAM Following adverse decisions on various pretrial motions, and a botched

plan to kill one of three individuals to better his chances at his murder trial,

defendant Kenneth C. Saal pled guilty to first-degree murder, N.J.S.A. 2C:11-

3(a)(1), second-degree burglary, N.J.S.A. 2C:18-2(a)(1), and fourth-degree

stalking, N.J.S.A. 2C:12-10(b), charged in an eight-count Middlesex County

indictment. Defendant also pled guilty to conspiracy to commit murder,

N.J.S.A. 2C:5-2(a)(1) and :11-3(a)(2), and conspiracy to commit witness

tampering, N.J.S.A. 2C:5-2(a)(1) and :28-5(a)(5), charged in a three-count

accusation.

During the factual basis for his guilty pleas under the indictment,

defendant admitted he was "intrigued" by his coworker, Carolyn Byington, and

in May 2019, he stole her keys, broke into her Plainsboro apartment, and

installed hidden cameras therein. Using "cell phone applications for the

cameras," defendant "align[ed] the cameras to get the right angle so that [he]

could record [Byington]." The following month, during the afternoon of June

10, 2019, defendant stabbed Byington to death with a screwdriver, scissors, and

pen when she returned home from work during her lunch break and discovered

him surreptitiously installing another camera in her home.

A-2040-22 2 As to the accusation, defendant admitted, while detained pretrial, he

agreed to pay his cellmate $15,000 "to kill a young white attractive woman in

her late twenties/early thirties in the same or very similar way as [he] killed [his

coworker]." He instructed his cellmate to "leave a letter at the crime scene

taking accountability for the first murder," thereby exculpating defendant. In

the alternative, his cellmate could kill either of two trial witnesses and "make

[it] look like a suicide . . . with a fake suicide note that [defendant] drafted."

Defendant was sentenced in accordance with the terms of the global

negotiated plea agreement to an aggregate fifty-five-year prison term with an

eighty-five-percent parole disqualifier subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2. As to the indictment, the court sentenced

defendant to a forty-five-year prison term, subject to NERA, on the murder

conviction; a concurrent five-year prison term, subject to NERA, on the burglary

conviction; and a concurrent one-year "flat" prison term on the stalking

conviction. Under the accusation, defendant was sentenced to two ten-year

prison terms, subject to NERA, on each conspiracy conviction imposed

A-2040-22 3 concurrently to each other but consecutively to the sentence imposed under the

indictment.1

Prior to trial, among other applications, defendant filed an omnibus

motion raising several suppression issues. Pertinent to this appeal, defendant

moved to suppress evidence obtained from his car and cell phone pursuant to

search warrants issued the same day by the same Superior Court judge.

Following oral argument, the trial court, which did not authorize the warrants,

reserved decision. On April 6, 2021, the court issued a comprehensive written

decision and memorializing order denying defendant's motions in their entirety.

The court summarized the methodical investigative steps undertaken by law

enforcement, which lead to the warrants at issue, and thoroughly addressed

defendant's contentions in view of the governing law.

1 Pursuant to the terms of the plea agreement, on the State's motion, the judge dismissed the remaining counts of the indictment: third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a), third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d), fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1), third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1), and third-degree burglary, N.J.S.A. 2C:18-2(a)(1); and the remaining count of the accusation, second-degree conspiracy to hindering apprehension through force against a witness, N.J.S.A. 2C:29-3(b)(3). A-2040-22 4 Before us, defendant reprises his challenges to the search warrants for his

car and cell phone. In the alternative, he seeks a remand for resentencing. More

particularly, defendant raises the following points for our consideration:

POINT I

DEFENDANT WAS SUBJECTED TO AN UNREASONABLE SEARCH AND SEIZURE BECAUSE THE AFFIDAVIT IN SUPPORT OF THE APPLICATION FOR A SEARCH WARRANT FOR DEFENDANT'S CAR ASSERTED INSUFFICIENT FACTS TO SUPPORT A FINDING OF PROBABLE CAUSE. U.S. Const. amends. IV and XIV; N.J. Const. art. I, [¶] 7.

POINT II

THE WARRANT AUTHORIZING THE SEARCH AND SEIZURE OF DEFENDANT'S CELL PHONE IS UNCONSTITUTIONALLY OVERBROAD BECAUSE IT HAS NO TEMPORAL LIMITATION AND DOES NOT SPECIFY THE THINGS TO BE SEIZED BUT INSTEAD PERMITS THE POLICE TO GENERALLY ACCESS, EXAMINE, AND DOCUMENT ALL INFORMATION ON THE PHONE. U.S. Const. amends. IV and XIV; N.J. Const. art. I, [¶] 7.

A. A valid warrant must limit digital searches by time frame.

B. A valid warrant must limit digital searches by the substance and type of data sought.

A-2040-22 5 C. The warrant here was unconstitutionally overbroad and requires suppression of the evidence found on defendant's phone.

POINT III

THE MATTER MUST BE REMANDED FOR AN ASSESSMENT OF THE OVERALL FAIRNESS OF THE SENTENCE AND A PROPER YARBOUGH2 ANALYSIS.

We reject these contentions and affirm.

I.

Well-established principles guide our review of the challenged warrants.

A search executed pursuant to a warrant enjoys the presumption of validity. See

State v. Boone, 232 N.J. 417, 427 (2017). "Reviewing courts 'accord substantial

deference to the discretionary determination resulting in the issuance of the

[search] warrant.'" Ibid. (alteration in original) (quoting State v. Jones, 179 N.J.

377, 388 (2004)). "Doubt as to the validity of the warrant 'should ordinarily be

resolved by sustaining the search.'" State v. Keyes, 184 N.J. 541, 554 (2005)

(quoting Jones, 179 N.J. at 389).

The defendant, therefore, bears the burden of challenging the search, and

must "prove 'that there was no probable cause supporting the issuance of the

2 State v. Yarbough, 100 N.J. 627 (1985). A-2040-22 6 warrant or that the search was otherwise unreasonable.'" Jones, 179 N.J. at 388

(quoting State v. Valencia, 93 N.J. 126, 133 (1983)). Probable cause exists

where there is "a reasonable ground for belief of guilt" based on facts of which

the officers had knowledge and reasonably trustworthy sources. State v. O'Neal,

190 N.J. 601, 612 (2007) (quoting State v. Moore, 181 N.J. 40, 46 (2004)).

When issuing a search warrant, a judge must consider the totality of the

circumstances to determine whether probable cause exists. State v.

Novembrino, 105 N.J. 95, 122 (1987) (adopting the totality of the circumstances

test set forth in Illinois v. Gates, 462 U.S. 213, 238 (1983)). "In the case of a

warrant, 'the probable cause determination must be made based on the

information contained within the four corners of the supporting affidavit, as

supplemented by sworn testimony before the issuing judge that is recorded

contemporaneously.'" State v. Wilson, 178 N.J. 7, 14 (2003) (quoting Schneider

v. Simonini, 163 N.J. 336, 363 (2000)). "Even in the context of a cellular phone

search, a valid warrant requires 'probable cause to believe that a crime has been

committed, or is being committed, at a specific location or that evidence of a

crime is at the place sought to be searched.'" State v. Missak, 476 N.J. Super.

302, 316 (App. Div. 2023) (quoting State v. Sullivan, 169 N.J. 204, 210 (2001)).

A-2040-22 7 Because a court's determination on the adequacy of probable cause

supporting a search warrant is a legal determination, we undertake a de novo

review of its decision. See Boone, 232 N.J. at 426.

A.

We first address defendant's challenge to the validity of the search warrant

for his vehicle, issued in the late afternoon of August 19, 2019, two months after

the homicide. Defendant claims the detective's affidavit failed to establish

probable cause because it contained "only two pieces of information that could

relate to defendant's involvement in the homicide," whereas "most of the

affidavit" did not reference him. At issue are the final two paragraphs of the

affiant's seven-paragraph factual recitation:

F. On June 19, 2019, [defendant] a co-worker of . . . Byington was interviewed. [Defendant] agreed to provide a buccal swab sample during this statement. [Defendant] stated that he did leave work and went to a parking lot to work on his car described as a 2006 Honda Accord NJ Plate # [XXXXXX]; Vin: [XXXXX XXXXX XXXXX XX]. [Defendant] came back to work after a significant period [of] time had passed. [Defendant] provided a cell phone number for himself as (732) [XXX-XXXX].

G. On August 19, 2019, I received confirmation from Frank Basile of the Union County Lab that [defendant]'s buccal swab sample could not be excluded from the DNA found on the fingernail clippings of . . . Byington.

A-2040-22 8 Acknowledging paragraph F implied he "had the opportunity to commit

the crime," defendant nonetheless argues that assumption neither was explicitly

stated within the four corners of the affidavit, nor does the record reveal any

indication "that the detective offered contemporaneous sworn testimony to

clarify this omission." Defendant further argues, even "more troubling" the

affiant's declaration concerning defendant's DNA was not tethered to "a

statement of statistical significance." We are unpersuaded.

As the trial court recognized, the preceding paragraphs of the search

warrant affidavit delineated the facts known to law enforcement at the time of

the application. Those facts included the time frame of the murder based on

information provided by Byington's coworkers, who told police the victim "left

work sometime around 1pm to go to lunch then never returned and would not

return any messages or calls from numerous employees." According to the

affidavit, the victim's downstairs neighbors stated, "they heard a female

screaming between approximately 1pm and 2pm and then . . . heard moving

around for approximately ten minutes." The affiant further disclosed local

police found Byington's lifeless body later that day and "[t]here did not appear

to have been forced entry into the residence."

A-2040-22 9 Contrary to defendant's contentions, the affidavit sufficiently set forth his

opportunity to commit the murder based on the probable time frame of the crime

and defendant's admissions not only that he drove the car on the day of the

murder, but also that he left work and returned "after a significant period [of]

time had passed." Moreover, the affidavit included the forensic results of

defendant's consensual buccal swab sample, which "could not be excluded from

the DNA found on" Byington's "fingernail clippings." As the trial court found,

"[b]ased on the totality of these circumstances, a fair inference could be drawn

that there existed probable cause to believe that [defendant] may have been

involved in the murder of . . . Byington." The court elaborated:

The information provided by the lab opened a door to investigate a potential suspect, who detectives knew left the office at or around the same time as . . . Byington, owned a vehicle that would make traveling to her apartment at that time easy, and for which a search could provide evidence of his involvement in the murder, e.g., blood, a weapon, or hair.

The court thus concluded, because the warrant was sought on the same day the

DNA findings were disclosed to the affiant, "the particularity requirement was

met, and the warrant was executed in a timely manner."

Having conducted a de novo review of the record in view of the applicable

law, we discern no basis to disturb the court's decision. We affirm substantially

A-2040-22 10 for the reasons stated by the trial court and conclude defendant's renewed

contentions on appeal lack sufficient merit to warrant further discussion in a

written opinion, R. 2:11-3(e)(2), beyond the brief comments that follow.

In his merits brief, defendant notes during oral argument before the trial

court his attorney raised the affidavit's omission of a statement of statistical

significance concerning defendant's buccal swab results, but the court failed to

address his argument in its written opinion. However, during argument before

the court, the State explained DNA testing utilized by its laboratory does not

identify a perpetrator; instead, it excludes individuals who could not be the

source of the DNA. According to the prosecutor, "the fact that any male relative

of . . . defendant could be potentially in th[e] same statistical range" would be

explained by an expert at trial. In its responding brief, the State explains the Y-

STR DNA analysis utilized in this case has evidentiary value at trial. See State

v. Calleia, 414 N.J. Super. 125, 150 (App. Div. 2010), rev'd on other grounds,

206 N.J. 274 (2011) (recognizing the Y-STR DNA analysis is "relevant" and

"probative" in demonstrating a suspect cannot be excluded from a "class of

individuals who could have 'contributed' . . . biological material").

Defendant's argument is misplaced. A search warrant is an investigative

tool, issued upon probable cause. See Jones, 179 N.J. at 388. Accordingly, to

A-2040-22 11 obtain a warrant to search defendant's vehicle, law enforcement was not required

to demonstrate the DNA results definitely established defendant was the

perpetrator. Rather, the totality of the circumstances, including the DNA results

and defendant's use of the car during the time frame of the murder, gave rise to

probable cause. See State v. Evers, 175 N.J. 355, 383 (2003) (recognizing "the

proofs in support of a search warrant" are "examined in a common-sense and

not a hyper-technical manner").

B.

We next address defendant's challenges to the search warrant for his cell

phone. The warrant was issued pursuant to a telephonic application on August

19, 2019, after police seized defendant's "black Google Pixel cell phone" from

his vehicle pursuant to the warrant issued by the same judge earlier that day.

The warrant permitted police to search defendant's phone for "text messages,

emails, [and] internet search[es] . . . related to the homicide or things of that

nature." Defendant argues the warrant was "unconstitutionally overbroad"

because it lacked "any limitation on the areas of the phone that could be searched

[]or the time period that information was accessed or created." Defendant's

contentions are unavailing.

A-2040-22 12 As the trial court astutely recognized, when the issuing judge approved

the search warrant for defendant's phone, she "was familiar with the case"

having previously "reviewed multiple affidavits prepared by [the same]

detective" and found probable cause "for various searches throughout th[e]

ongoing [murder] investigation." The detective explained to the issuing judge

that law enforcement determined the phone seized by police "show[ed] up inside

our tower (inaudible) near the location at the time of the murder"; and defendant

"left for an extended lunch period and came back" to work wearing "a different

shirt."

The issuing judge thus authorized a telephonic warrant to search

defendant's phone, limited to "text messages, emails, [and] internet search[es]"

for "any information pertaining to [the] investigation." Importantly, the court

limited the cell phone search to "communications or searches that [defendant]

had . . . around the time of the murder." See State v. Reldan, 100 N.J. 187, 194

(1985) (upholding a search warrant permitting the seizure of evidence related to

burglaries linking the defendant to two murders, as well as "anything else of

evidentiary value that a complete and thorough search might disclose").

We conclude, as did the trial court, the warrant neither lacked

particularity, nor was overbroad. The issuing judge authorized the warrant for

A-2040-22 13 defendant's phone, which was seized from the car he drove on the date of the

murder and was active at a cell phone tower within close proximity to

Byington’s residence "around the time of the murder." We therefore discern no

reason to disturb the court's decision.

II.

Lastly, we turn to defendant's sentencing argument. Defendant tersely

states the "court conducted a brief Yarbough analysis," but does not expressly

challenge the court's findings. Instead, defendant claims the court failed to

explain the overall fairness of the consecutive sentences imposed under State v.

Torres, 246 N.J. 246, 267-68 (2021) (reiterating Yarbough's requirement that

the sentencing court place on the record "[a]n explicit statement" of reasons for

imposing consecutive sentences, which should address the overall fairness of

the sentence). The record belies defendant's contentions.

As a preliminary matter, we are satisfied that the trial court's imposition

of consecutive sentences conformed with the factors enumerated by our

Supreme Court in Yarbough. As the Court has explained, "[t]he Yarbough

factors are qualitative, not quantitative," and "applying them involves more than

merely counting the factors favoring each alternative outcome." State v. Cuff,

A-2040-22 14 239 N.J. 321, 348 (2019). Instead, the sentencing court must consider all the

Yarbough guidelines, with emphasis on the five subparts of the third guideline:

(1) "the crimes and their objectives were predominantly independent of each

other"; (2) "the crimes involved separate acts of violence or threats of violence";

(3) "the crimes were committed at different times or separate places, rather than

being committed so closely in time and place as to indicate a single period of

aberrant behavior"; (4) "any of the crimes involved multiple victims"; and (5)

"the convictions for which the sentences are to be imposed are numerous ." See

State v. Rogers, 124 N.J. 113, 117 (1991). In applying the factors, "[t]he focus

should be on the fairness of the overall sentence, and the sentencing court should

set forth in detail its reasons for concluding that a particular sentence is

warranted." State v. Miller, 108 N.J. 112, 122 (1987).

In its assessment of the Yarbough factors, which supported consecutive

sentences in this case, the court found there were "separate victims" and the

conspiracy to commit murder "was at a separate time and date" years after the

defendant killed Byington. The court also noted it was statutorily mandated to

impose consecutive sentences on the conspiracy to commit witness tampering

conviction. See N.J.S.A. 2C:28-5(e) (providing a sentence for a witness

tampering conviction shall be imposed consecutively to the sentence imposed

A-2040-22 15 for "a conviction of an offense that was the subject of the official proceeding or

investigation").

Moreover, in its oral pronouncement of sentence, the trial court expressly

stated the "negotiated sentence" was "fair[,] in the interest of justice." The

judgments of conviction for the indictment and accusation each echo the court's

fairness finding. In view of the circumstances of the offenses to which defendant

pled guilty, we discern no reason to disturb the aggregate sentence imposed,

which is not manifestly excessive or unduly punitive, does not constitute an

abuse of discretion, and does not shock the judicial conscience. See State v.

O'Donnell, 117 N.J. 210, 215-16 (1989); see also State v. Miller, 237 N.J. 15,

28 (2019).

Affirmed.

A-2040-22 16