RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4167-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANK A. FIORELLI,
Defendant-Appellant. _____________________________
Submitted March 2, 2020 – Decided June 19, 2020
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 15-10-0144.
Michael Chazen, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).
PER CURIAM
Defendant Frank Fiorelli appeals from an April 27, 2018 judgment of
conviction that was entered after he first pled guilty to fourth-degree endangering the welfare of a child (possession of child pornography), N.J.S.A.
2C:24-4(b)(5)(b), and then, after a bench trial, was found guilty of third-degree
resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). Prior to pleading guilty to the one
charge, the trial judge denied defendant's suppression motion in which he argued
that the search warrant issued prior to his arrest was stale. After pleading guilty,
and before his bench trial, the judge also denied defendant's motion to suppress
his custodial statement to police. In that motion, defendant argued that there
was no evidence he waived his Miranda1 rights.
On appeal, defendant raises the same arguments and also contends there
was insufficient evidence to support his conviction for resisting arrest.
Specifically, he argues the following:
POINT I
THE TRIAL COURT ERRED IN NOT SUP[P]RESSING THE SEARCH WARRANT WHICH WAS STALE GIVEN THE TIME THAT HAD EXPIRED.
POINT II
THE TRIAL COURT ERRED IN NOT SUP[P]RESSING DEFENDANT'S STATEMENT GIVEN THAT HE NEVER WAIVED HIS MIRANDA RIGHTS.
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-4167-17T3 2 POINT III
THE TRIAL COURT'S VERDICT AFTER A BENCH TRIAL THAT DEFENDANT RESISTED ARREST WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).
We are not persuaded by any of defendant's contentions and affirm,
substantially for the reasons expressed by Judge John M. Deitch in the written
decisions he issued denying defendant's motions, and setting forth his findings
of facts and conclusions of law after defendant's trial.
I.
In September 2012, Special Agent Joseph Gronczewski of the Federal
Bureau of Investigation (FBI), and Police Detective Christopher Camm, of his
department's Digital Technology Investigations Unit (DTIU),2 conducted an
ongoing investigation into twenty-three individuals believed to be involved in
observing, downloading, and sharing child pornography through the Internet.
Defendant, a former police officer, a former corrections officer, and a retired
captain of the local fire department, was one of the suspects. As part of the
investigation, on September 14, 2012, Gronczewski determined that both child
2 Detective Camm is also a member of the New Jersey branch of the Internet Crimes Against Children Task Force, which operates nationwide. A-4167-17T3 3 pornography and encrypted records, called "artifacts," associated with a file-
sharing program known as ARES, were on defendant's computer from which
Camm was able to download five files containing child pornography.
Five months later, relying on detailed information about the entire
investigation and information specific to his September 2012 investigation into
defendant, Camm secured a search warrant on February 14, 2013, which was
executed on February 19, 2013 at defendant's home. There, once the police
confirmed that defendant's computer contained child pornography, they arrested
him, seized his computer, and advised defendant of his Miranda rights. During
his arrest, an altercation occurred that required the intervention of several
officers before they were able to place defendant in handcuffs.
After his arrest, the police brought defendant to headquarters for further
questioning. Prior to his interrogation there, which was videotaped, the police
again advised defendant of his Miranda rights. After being advised, defendant
did not expressly state that he was waiving his rights, but he proceeded to
respond to questioning by the officers.
In his statement to police, defendant admitted to installing the ARES
program on his computer and searching for adult pornography, but stated that if
child pornography "popped up," he would click off of it. He also did not recall
A-4167-17T3 4 seeing any reference to file sharing when he installed ARES. A full forensic
examination of his computer revealed 634 files linked to child pornography,
including twenty images and seventy-three videos.
A State Grand Jury returned an indictment charging defendant with
second-degree endangering the welfare of a child (distribution of child
pornography), N.J.S.A. 2C:24-4(b)(5)(a) (Count One); second-degree
endangering the welfare of a child (offering child pornography), N.J.S.A. 2C:24-
4(b)(5)(a) (Count Two); fourth-degree endangering the welfare of a child
(possession of child pornography), N.J.S.A. 2C:24-4(b)(5)(b) (Count Three);
and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (Count Four).
Subsequent to his indictment, defendant filed a motion to suppress the
evidence seized from his residence. After considering the parties' written
submissions and oral arguments, the judge denied the motion for the reasons
stated in his October 27, 2016 written decision.
On July 20, 2017, defendant pled guilty to the third count of the
indictment, charging fourth-degree endangering the welfare of a child, without
a sentencing recommendation from the prosecutor. Defendant also waived his
right to a jury trial and elected to proceed with a bench trial on the remaining
charges.
A-4167-17T3 5 Prior to trial, defendant filed a motion to suppress his statement to the
police. On November 14, 2017, Judge Deitch held a non-evidentiary hearing
before issuing a written decision denying defendant's motion.
Thereafter, the judge presided over defendant's trial and on March 9, 2018
issued his written decision acquitting defendant of the indictment's first two
counts that charged second-degree endangering, but convicting defendant of the
fourth count, third-degree resisting arrest. The judge sentenced defendant on
counts three and four to two concurrent three-year periods of probation, which
included requirements for sex offender specific counseling. This appeal
followed.
II.
We begin our review by addressing defendant's argument that Judge
Deitch should have granted his motion to suppress because the search warrant
was stale, since it was based upon information gathered in September 2012,
rather than when the search warrant was obtained, in February 2013. We find
no merit to this contention.
Although we normally grant deference to the findings of fact made by a
trial judge in connection with a motion to suppress, State v. Elders, 192 N.J.
224, 243-44 (2007), there was no evidentiary hearing in this case. Instead, both
A-4167-17T3 6 counsel and the judge relied on the contents of Detective Camm's affidavit.
Under these circumstances, we undertake a de novo review of the adequacy of
probable cause supporting the search warrant, State v. Handy, 206 N.J. 39, 44-
45 (2011), recognizing defendant bore the burden of challenging the search and
proving a lack of probable cause, State v. Boone, 232 N.J. 417, 427 (2017). Our
review of this purely legal issues is plenary. Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Goodman, 415 N.J.
Super. 210, 225 (App. Div. 2010).
To have prevailed on his motion, defendant had the burden of overcoming
the presumption of validity extended to a search conducted with a warrant; to
do that, he was required to "prove 'that there was no probable cause supporting
the issuance of the warrant.'" State v. Jones, 179 N.J. 377, 388 (2004) (quoting
State v. Valencia, 93 N.J. 126, 133 (1983)). In considering whether defendant
met his burden, we, like the trial judge, have to give "substantial deference" to
the discretionary determination made by the issuing judge. Ibid. (quoting State
v. Sullivan, 169 N.J. 204, 211 (2001)). Even if the judge found the supporting
information "marginal," he would have to resolve the doubt by sustaining the
search. State v. Kasabucki, 52 N.J. 110, 116 (1968) (citing United States v.
Ventresca, 380 U.S. 102, 109 (1965)).
A-4167-17T3 7 Thus, the question was whether the judge issuing the warrant was
presented "with facts sufficient to permit the inference of the existence of
probable cause" necessary to issue a warrant. State v. Novembrino, 105 N.J. 95,
128 (1987). The issuing judge was required "to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before
him . . . there [was] a fair probability that contraband or evidence of a crime
[would] be found in" the place or places to be searched. State v. Smith, 155 N.J.
83, 93 (1998) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). The judge
had to "consider the totality of the circumstances, and . . . deal with
probabilities." Schneider v. Simonini, 163 N.J. 336, 361 (2000) (citing Gates,
462 U.S. at 230-31, 238).
Defendant's claim of "staleness" bears on whether the totality of the
information in the affidavit permitted the judge to find "a fair probability that
contraband or evidence of a crime [would] be found" if defendant's premises
were searched during the time permitted in the warrant. Smith, 155 N.J. at 93
(quoting Gates, 462 U.S. at 238). In short, staleness is a question of whether the
probable cause still exists when the warrant is issued and at the time of the
search. See State v. Blaurock, 143 N.J. Super. 476, 479 (App. Div. 1976); see
also Sgro v. United States, 287 U.S. 206, 210-12 (1932).
A-4167-17T3 8 "The question of the staleness of probable cause depends more on the
nature of the unlawful activity alleged in the affidavit than the dates and times
specified therein." Blaurock, 143 N.J. Super. at 479 (quoting United States v.
Harris, 482 F.2d 1115, 1119 (3d Cir. 1973)); see also United States v. Nilsen,
482 F. Supp. 1335, 1339 (D.N.J. 1980) ("The timeliness of probable cause
cannot be assessed in a factual vacuum. Rather, timeliness and its converse,
staleness, must be measured by the [n]ature and regularity of the allegedly
unlawful activity.").
Thus,
[w]here the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.
[Blaurock, 143 N.J. Super. at 479 (quoting United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972)).]
In cases dealing with the maintenance and sharing of child pornography,
a time lapse is less significant. As our Supreme Court has explained,
"pedophiles, preferential child molesters, and child pornography collectors
maintain their materials for significant periods of time." State v. Evers, 175 N.J.
A-4167-17T3 9 355, 384 (2003) (quoting United States v. Lamb, 945 F. Supp. 441, 460
(N.D.N.Y. 1996)).
Applying these guiding principles, we conclude that Judge Deitch
properly considered the affidavit supporting the search warrant here and
correctly concluded that the passage of five months from the officers' detection
of child pornography on defendant's computer to the date of the warrant being
issued did not diminish the probable cause found by the warrant judge that
defendant had committed a crime.
As Judge Deitch found, the five-month period between the September 14,
2012 investigation and the application for the warrant was justified and did not
"affect the vitality of probable cause under these circumstances." He stated that,
"while the initial investigation of . . . [d]efendant was one day, the scope of the
investigation and the number of targets suggest that [s]tate [d]etectives had to
monitor activity on a continuous basis." Quoting Evers, the judge opined that
"[t]he observation that images of child pornography are likely to be hoarded by
persons interested in those materials in the privacy of their homes is supported
by common sense and the cases." Id. at 383 (quoting Lamb, 945 F. Supp. at
460).
A-4167-17T3 10 The judge's findings were supported by Detective Camm's affidavit filed
in support of the warrant. As Detective Camm explained in the affidavit, during
their ongoing investigation the police searched the ARES network for file names
containing keywords commonly associated with child pornography, downloaded
the files, and confirmed that the images contained child pornography. Next, the
police determined the location of the computer. He also stated, "child
pornographers typically retain their materials (pictures, films, correspondence,
photographs, and computer graphic image files) for many years," and they
"rarely dispose of sexually explicit images of minors because the images are
treated as prized possessions."
Based on our de novo review of the totality of the circumstances, and "the
nature of the unlawful activity," we agree that the five-month time period
aligned with a "common sense" view that defendant would still have the
incriminating evidence saved on his computer when the search warrant was
executed. Blaurock, 143 N.J. Super. at 479.
III.
We turn our attention to defendant's argument that Judge Deitch
improperly denied his motion to suppress the statement that he gave at police
headquarters after his arrest. The judge denied the motion after conducting a
A-4167-17T3 11 hearing, with the consent of the parties, based on the video tape and their written
submissions, before concluding that defendant knowingly and voluntarily
waived his Miranda rights.
The parties' submissions established it was undisputed that the police
advised defendant of his Miranda rights on two occasions, but never expressly
asked defendant whether he wanted to waive his rights. The parties' dispute
therefore focused on whether, despite that omission, defendant waived his
rights.
According to the transcript and the videotape of the interrogation, two
police sergeants interviewed defendant. Prior to asking defendant questions,
one of the officers confirmed with him that at the time of his arrest, his Miranda
rights were read to him, and then the officer again read defendant his rights.
Defendant confirmed that he understood what was read to him. Defendant also
signed the back of the Miranda card used by the officer to confirm what was
read to him.
After asking defendant some preliminary background questions, including
about his ownership of the subject computer, the officer interrupted his
questioning and stated the following: "[T]he questions I'm about to ask you if
you want to talk to me you can, if you don't that's fine. But I just want to let
A-4167-17T3 12 you know. Would you like to continue talking to me about this? Okay. That's
a yes?" Defendant replied "yes" and the questioning continued. At its
conclusion, defendant confirmed that he provided his "statement free and
voluntary with no threats, promises, or anything being made."
On November 14, 2017, Judge Deitch issued his order and decision
denying defendant's motion. In his written decision, the judge found that the
officers' questioning of defendant was a custodial interrogation subject to
Miranda. Citing Miranda, 384 U.S. at 444, and State v. Bey (II), 112 N.J. 123,
134 (1988), the judge observed that "[a]n accused may waive his Miranda rights
if the waiver is made voluntarily, knowingly, and intelligently." Relying on
State v. Miller, 76 N.J. 392, 402 (1978), Judge Deitch stated that in determining
whether an individual waived their rights, a court had to consider "the totality
of the circumstances." Quoting from Miller, the judge identified the factors to
be considered, including a "suspect's age, education and intelligence, advice as
to constitutional rights . . . [and a] suspect's previous encounters with the law."
Relying on State v. Nyhammer, 197 N.J. 383 (2009), which addressed
facts similar to those in this case, Judge Deitch rejected defendant's contention
that "an express waiver must be obtained" by police before questioning a
defendant. The judge then applied the "Miller factors" to defendant, and stated
A-4167-17T3 13 that "it [was] clear" defendant waived his rights based upon the following
findings:
Defendant is a mature individual over [eighteen] years of age. He appears well educated and intelligent. By way of background, he is a former police and corrections officer. He was the Fire Captain for the [local] Fire Department.
The circumstances of the interrogation do not provide any indicia of duress, coercion or misunderstanding on the part of [d]efendant. The entire statement was less than one hour in length.
After [d]efendant was informed of his rights, his understanding of his rights was confirmed and he willingly answered the questions posed to him. While there is no requirement of an express, oral waiver, one was given by [d]efendant at the initiation of questioning [when he responded "yes" to the officer asking him if he wanted to continue talking to the officer].
....
The totality of [these] circumstances, as considered under the test of Miller, establish, beyond a reasonable doubt, that [d]efendant was aware of his constitutional rights and knowingly and voluntarily waived those rights.
"Generally, on appellate review, a trial [judge]'s factual findings in
support of granting or denying a motion to suppress must be upheld when 'those
findings are supported by sufficient credible evidence in the record.'" State v.
A.M., 237 N.J. 384, 395 (2019) (quoting State v. S.S., 229 N.J. 360, 374 (2017));
A-4167-17T3 14 see also State v. Gamble, 218 N.J. 412, 424 (2014). Accordingly, "[a] trial
[judge]'s findings should be disturbed only if they are so clearly mistaken 'that
the interests of justice demand intervention and correction.'" Elders, 192 N.J. at
244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). This standard also
applies to "factual findings based on a video recording or documentary
evidence" to ensure that trial judges remain the fact-finder. S.S., 229 N.J. at
381. However, we owe no deference to "conclusions of law made by lower
courts in suppression decisions," which are reviewed de novo. Boone, 232 N.J.
at 426.
We conclude that Judge Deitch correctly analyzed defendant's contentions
under the appropriate standards. We therefore affirm the denial of defendant's
motion to suppress his statement substantially for the reasons stated in the
judge's comprehensive written decision. We add only the following comments.
A "waiver need not take a designated legal form or be expressed in
designated legal terminology." State v. Yough, 49 N.J. 587, 596 (1967).
"[W]hen 'determining the validity of a Miranda waiver,' trial courts must decide
'whether the suspect understood that he did not have to speak, the consequences
of speaking, and that he had the right to counsel before doing so i f he wished.'"
A.M., 237 N.J. at 397 (quoting Nyhammer, 197 N.J. at 402). A written waiver,
A-4167-17T3 15 or any "explicit statement," is not required for defendant to knowingly waive his
Miranda rights. Ibid. (quoting State v. Hartley, 103 N.J. 252, 313 (1986) (Stein,
J., dissenting)); see also State v. Faucette, 439 N.J. Super. 241, 262 (App. Div.
2015). "[F]ailure to sign a form of waiver does not preclude a finding of waiver,
nor does it make further questioning a violation of [a] defendant's constitutional
rights." State v. Warmbrun, 277 N.J. Super. 51, 63 (App. Div. 1994) (first
alteration in original) (quoting United States v. Filiberto, 712 F. Supp. 482, 487
(E.D. Pa. 1989)). "Any clear manifestation of a desire to waive is sufficient."
State v. Kremens, 52 N.J. 303, 311 (1968). "[A] knowing, intelligent, and
voluntary waiver is determined by the totality of the circumstances surrounding
the custodial interrogation based on the fact-based assessments of the trial
court." A.M., 237 N.J. at 398.
Here, "the record before [us] is 'devoid' of any implication that defendant
'was confused or did not fully appreciate his rights,' nor was he 'coerced,
intimidated, or tricked' by police into giving a statement." Id. at 399 (quoting
State v. Mejia, 141 N.J. 475, 503 (1995)). Judge Deitch properly considered the
totality of the circumstances and came to the correct conclusion. We have no
reason to disturb his decision.
A-4167-17T3 16 IV.
Last, we consider defendant's challenge to his conviction for having
committed the third-degree offense of resisting arrest. Although defendant
couches his argument in terms of the weight of the evidence being against the
verdict, an argument that applies to jury trials, we review it under the correct
standard of whether there was sufficient credible evidence in the record to
support the judge's decision after a bench trial. See State ex rel. R.V., 280 N.J.
Super. 118, 120-21 (App. Div. 1995).
The offense that the indictment charged defendant with committing is
defined by N.J.S.A. 2C:29-2(a)(3)(a), which states in pertinent part, the
following:
(1) Except as provided in paragraph (3), a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. . . . (3) An offense under paragraph (1) . . . of subsection a. is a crime of the third degree if the person:
(a) Uses or threatens to use physical force or violence against the law enforcement officer or another. . . .
Under subsection (3)(a), "[t]he use or threatened use of physical force or
violence . . . does not include any requirement that a defendant 'create a
substantial risk of causing physical injury.'" State v. Brannon, 178 N.J. 500,
A-4167-17T3 17 506-07 (2004). The definition of physical force merely requires "dynamic
power showing great strength, power, intensity, fury, [and] destructiveness." Id.
at 510 (alteration in original) (quoting Webster's Third New Int'l Dictionary 887
(1981)). "[E]ven minimal force or violence can be 'physical,'" id. at 507, as
contemplated by the statute in order to prevent "the transformation of arrests
into melees and tragedy," id. at 509. "For compelling public safety reasons . . .
resisting arrest . . . statutes and interpretive case law require that a defendant
submit to [even] an illegal detention and that he take his challenge to court."
State v. Crawley, 187 N.J. 440, 455 (2006).
At trial, Trooper Joshua Graeber, a member of the unit who executed the
search warrant, and Sergeant Christopher Fowler, one of the arresting officers,
testified for the State about the circumstances of defendant's arrest. Defendant's
wife testified to a different version of those events on behalf of defendant.
The officers testified that upon arrival at defendant's home, they knocked
and announced, but there was no answer. After they then entered the house,
Graeber saw defendant coming down the stairs carrying a gun and allegedly
calling out, "get the fuck out of my house." Graeber identified himself and
instructed defendant to drop his gun. Defendant repeated, "get out of my house,"
but then complied and put down his gun. According to Fowler, when they tried
A-4167-17T3 18 to handcuff defendant, he became "agitated," flailed his arms, and fell into a
"protective shield." Fowler repeatedly told defendant that he was under arrest,
but defendant would not comply and became combative. At that point, Fowler
and another trooper took defendant to the ground. Defendant allegedly pulled
his arms under his body and rotated his hip in an attempt to stand up. After a
brief struggle, he surrendered and was placed in handcuffs.
According to Fowler, defendant's wife was in a second-floor bedroom, and
by the time she was brought downstairs, the struggle with defendant had already
abated. Graeber claimed that he never saw defendant's wife in the upstairs
hallway.
According to defendant's wife, she was downstairs when she heard a loud,
slow banging on the door. She "froze" and yelled "who's there?" She then ran
upstairs and woke defendant, telling him that she believed someone was
breaking into the house. Defendant allegedly told her to get his gun and to call
9-1-1. She saw defendant leave the bedroom, so she "threw the phone down"
and followed him into the hallway. She stated that defendant only said "get out
of my house," and that when he was told to put his gun down, he "did so
immediately in a very controlled and deliberate fashion." She said that
defendant was fully compliant and did not waive his arms around. She claimed
A-4167-17T3 19 that once she reached the bottom of the stairs, she observed a "pile" of bodies
and that the police were on top of defendant.
In his credibility findings, the judge found both of the arresting officers
to be credible and accepted their testimony over that of defendant's wife. He
concluded that defendant's conduct frustrated the troopers' attempts to place him
under arrest by using "physical force . . . in order to prevent the officers from
effecting his arrest." He described the force as "waving his arms; moving his
arms so as to frustrate the administration of handcuffs and rolling his body about
so as to frustrate the administration of handcuffs." The judge concluded that
"[t]he State has proved guilt beyond a reasonable doubt with regard to" the
resisting charge.
Defendant states that, "it is difficult, if not impossible, to see how waiving
of arms or rolling of the body is either force or physical violence 'against'
anyone, let alone a law enforcement officer." He further argues that, "[t]here
was absolutely no testimony regarding punching or kicking by . . . defendant, or
any other physical violence or force 'against' the [t]rooper." Without such
evidence, defendant's conviction should be reversed. We disagree.
We conclude that contrary to defendant's contentions on appeal, Judge
Deitch's findings were supported by the credible testimony of the two officers.
A-4167-17T3 20 The testimony established defendant's use of force, as contemplated by the
statute, and was directed toward the police officers in his attempt to prevent his
arrest. Here, again, we have no cause to disturb the judge's verdict.
Affirmed.
A-4167-17T3 21