STATE OF NEW JERSEY VS. TERRY E. DILLIGARD II (12-03-0036 AND 12-03-0067, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 17, 2020
• Docket: A-5060-18T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5060-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRY E. DILLIGARD II,

Defendant-Appellant. ____________________________

Submitted May 12, 2020 – Decided July 17, 2020

Before Judges Hoffman and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 12-03-0036 and 12-03-0067.

Joseph E. Krakora, Public Defender, attorney for appellant (Andrew Robert Burroughs, Designated Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent (Daniel A. Finkelstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM Defendant Terry Dilligard II appeals from the judgment of conviction

entered by the Law Division on July 22, 2015. 1 On appeal, he challenges the

September 4, 2014 trial court decision which denied his motion to suppress

statements he provided to police and which denied, in part, suppression of

evidence seized from his apartment. We affirm.

I.

On March 8, 2012, a Mercer County grand jury returned Indictment No.

12-03-0036, charging defendant with the following offenses: second-degree

conspiracy to commit theft by deception and financial facilitation, pursuant to

N.J.S.A. 2C:5-2, 2C:21-25(a) and 2C:21-25(b) (counts one and six); second-

degree theft by deception, pursuant to N.J.S.A. 2C:20-4, 2C:20-2(b)(1)(a) and

1 On April 8, 2016, defendant filed a petition for post-conviction relief (PCR) alleging, among other things, that his appellate counsel was ineffective for failing to challenge the trial court decision denying his suppression motion on direct appeal. On June 11, 2019, Judge Timothy P. Lydon issued an order granting defendant leave to file an appeal of the September 4, 2014 order denying his motion to suppress. Judge Lydon found defendant's trial counsel submitted a "transmittal of Adult Appeal" form signed August 6, 2015; however, defendant's appeal was not properly filed "as confirmed by the Office of the Public Defender in a letter dated April 7, 2016." Pursuant to Rule 3:22-11, the judge granted defendant forty-five days to file a direct appeal of the denial of his motion to suppress and all related claims raised in his PCR petit ion. The judge also dismissed defendant's PCR petition without prejudice, and further provided defendant may refile his PCR petition within ninety days of the date of our decision on his direct appeal, pursuant to Rule 3:22-12(a)(3). A-5060-18T4 2 2C:2-6 (counts two, three and eight); third-degree theft by deception, pursuant

to N.J.S.A. 2C:20-4, 2C:20-2(b)(2)(a) and 2C:2-6 (count four); second-degree

financial facilitation, possession of property derived from criminal activity,

pursuant to N.J.S.A. 2C:21-25(a), 2C:2-6 (count five); second-degree identity

theft, pursuant to N.J.S.A. 2C:21-17(a)(1), 2C:21-17(c)(3) and 2C:2-6 (count

seven); third-degree financial facilitation, possession of property derived from

criminal activity, pursuant to N.J.S.A. 2C:21-25(a), 2C:2-6 (count nine); first-

degree financial facilitation, possession of property derived from criminal

activity, pursuant to N.J.S.A. 2C:21-25(a), 2C:2-6 (count ten); first-degree

financial facilitation, engaging in transactions for the purpose of disguising the

nature of the transaction, pursuant to N.J.S.A. 2C:21-25(b)(1), 2C:21-

25(b)(2)(a) and 2C:2-6 (count eleven).

On March 27, 2012, an Atlantic County grand jury returned Indictment

No. 12-03-0067, charging defendant with the following offenses: second-degree

theft by deception, pursuant to N.J.S.A. 2C:20-4, 2C:20-2(b)(1)(a) and 2C:2-6

(count one); third-degree uttering a forged instrument, pursuant to N.J.S.A.

2C:21-1(a)(3) (counts two through ten).

On May 24, 2013, defendant filed a motion to suppress evidence seized

pursuant to the warrantless search of his apartment and a motion to suppress his

A-5060-18T4 3 recorded statement. At the motion hearing, Judge Mark J. Fleming heard

testimony from defendant and five detectives.

We derive the following facts from the suppression motion record. In July

2010, the Division of Criminal Justice and the New Jersey Department of Labor

(DOL) initiated an investigation after receiving reports that more than seventy

claimants filed false claims for unemployment insurance based on fictitious

previous employment. The investigation revealed that defendant filed

approximately 100 fraudulent claims for unemployment insurance benefits

between August 27, 2006 and November 9, 2010, resulting in the theft of

$2,400,000 from the State of New Jersey. To file these fraudulent claims,

defendant obtained personal identifying information of individuals from his

father, Terry Dilligard, who obtained access to the information through his job

registering voters in Florida.

On November 9, 2010, after the initial investigation, officers obtained and

executed an arrest warrant for defendant. The officers arrived at one of two

locations in the arrest warrant believed to be defendant's home, knocked on the

door, and announced their presence. Meanwhile, one of the officers on the

scene, Detective Patrick Sole, received a call from a detective at the Whippany

Office revealing that defendant's girlfriend, Monique Valentine, was already in

A-5060-18T4 4 police custody and receiving text messages from defendant, telling her that he

heard police at his door and that he wanted to send Valentine money. Later,

defendant disclosed to Valentine through text messages that the money was in a

spare bedroom in his apartment and requested that Valentine post his bail

because he was about to turn himself in to the police.

After receiving this information, Detective Mario Estrada stated through

the door, "Terry we know you are in there, open the door." Defendant opened

the door and was placed under arrest in the hallway adjacent to the living room

area of his apartment. In plain view in the living room were an HP Laptop, a

MacBook Pro computer, several iPhones, a Nokia cell phone, a Samsung T-

Mobile cell phone, and a black box containing numerous VISA and Mastercard

debit cards.

The officers walked defendant to a table in between the kitchen and living

room. Detective Estrada then asked defendant if any weapons or people were

present in the apartment and defendant responded no. Detective Estrada next

asked defendant for his consent to search his apartment for evidence, without

revealing the purpose of their investigation. He subsequently read to defendant

a permission to search form that permitted officers to seize any evidence they

considered pertinent to the investigation. The form stated that defendant ha d

A-5060-18T4 5 the right to refuse permission of the search. Defendant signed the form.

Defendant also signed a Miranda2 rights form, confirming he voluntarily

acknowledged and waived his rights. After signing both forms, defendant was

informed that he was being arrested for unemployment fraud. During the search,

the police seized items believed to be proceeds of the alleged fraud.

The officers then transported defendant to police headquarters in

Whippany. Defendant was read a Miranda rights form for a second time and

again waived his rights by signing the form. He then learned that Valentine was

in custody. Later, defendant was brought into an interview room, where he again

was read a Miranda rights form and again waived his rights by signing the form.

He then made a statement to police regarding his involvement in the alleged

fraud. Defendant testified he did not sign the permission to search form or the

Miranda form, and claimed the signatures on the forms were not his signatures.

On September 4, 2014, Judge Fleming, in a thirty-two-page statement of

reasons, denied defendant's motion to suppress evidence as to weapons but

granted the motion as to evidence found outside of defendant's consent to search

for weapons. He also denied the motion to suppress defendant's statement. The

judge found the testifying officers credible, explaining they testified in a

2 Miranda v. Arizona, 384 U.S. 436 (1966). A-5060-18T4 6 forthright and candid manner. The judge stated the minor inconsistencies in

their testimonies "only made them more credible" because it showed their

testimonies were not rehearsed. In contrast, the judge found defendant's

testimony "to be much less credible" consisting of,

primarily . . . blanket denials of the State's version of events. Numerous inconsistencies in [defendant's] testimony were revealed on cross-examination and defendant's overall demeanor throughout his testimony was one of hostility and apparent belief that he was a victim who had been wronged by the State. His strident refusal to admit that he had signed forms that was contradicted by the State's witnesses was particularly troubling. Overall, the court finds defendant's testimony to be not worthy of belief.

Turning to the search of the premises without a warrant, the judge

reasoned defendant's subjective perception that his consent was not given

voluntarily did not "vitiate the consent" of defendant signing the consent to

search form shown by defendant's signature and Detective Estrada's credible

testimony. The judge found that all of the factors pursuant to Schneckloth3

pointed to defendant providing a knowing and voluntarily consent to search the

premises for only weapons, rather than for an investigation of unemployment

fraud.

3 Schneckloth v. Bustamonte, 412 U.S. 218 (1973). A-5060-18T4 7 The judge explained that the present set of facts resembled State v. Leslie,

338 N.J. Super. 269 (App. Div. 2001), and concluded that because Detective

Estrada initially asked if the police could search for weapons, defendant

reasonably believed that signing the consent form permitted law enforcement

officers to only search the premises for weapons, rather than a general search

for evidence of unemployment fraud of his apartment.

The judge narrowed the areas of the apartment the officers were permitted

to search based on where a weapon could be found and suppressed evidence

where a weapon could not reasonably be located:

[T]he detectives lawfully seized all computers and cell phones, as well as numerous debit and credit cards found inside a box in the defendant's living room and the currency found inside a bag in a closet in defendant's bedroom. Further, detectives were permitted to search through the large red expanding folder found inside defendant's bedroom. [H]owever, they were not entitled to search through smaller envelopes or other areas of the apartment where a weapon could not reasonably be located.

The judge found that the plain view exception applied to the HP laptop, several

iPhones, a Nokia cell phone, and a Samsung T-Mobile cell phone.

Turning to whether defendant voluntarily waived his Miranda rights, the

judge noted that it was unclear whether defendant drew certain conclusions

regarding how his cooperation would affect Valentine. However, the judge

A-5060-18T4 8 ruled that defendant's confession was not coerced and should not be suppressed.

Additionally, the judge noted police appeared courteous during the interrogation

and "defendant was calm and willing to answer their questions."

All charges against defendant were resolved when the Atlantic County

charges were consolidated with the Mercer County charges, and defendant pled

guilty to three of the charges, pursuant to a plea agreement. On April 13, 2015,

defendant appeared before Judge Lydon and pled guilty to counts three and

eleven, under Indictment No. 12-03-0036, and to count one, under Indictment

No. 12-03-0067. Defendant admitted to creating an unemployment benefit

claims scheme for numerous ineligible individuals. He also admitted to creating

and controlling multiple Metabank banking accounts to receive direct deposits

from the State of New Jersey in other people's names as part of the scheme.

Defendant admitted that he gambled and won over $75,000 at Harrah's Casino

Resort, took photographs of the checks, deposited the checks and then used the

photographed copies to receive additional proceeds in excess of $75,000.

Consistent with the plea agreement, on June 26, 2015, Judge Lydon

sentenced defendant on counts three and eleven of Indictment No. 12-03-0036

to two consecutive nine-year terms of imprisonment. On Indictment No. 12-03-

0067, he sentenced defendant to a concurrent seven-year prison term.

A-5060-18T4 9 On March 9, 2016, we heard oral argument pursuant to Rule 2:9-11 on

defendant's appeal of his sentence. Defendant argued his sentence was excessive

because his two nine-year prison terms were consecutive. In a written order, we

affirmed the sentence imposed, ruling that the sentence was "not manifestly

excessive or duly punitive and does not constitute an abuse of discretion." State

v. Dilligard, II, No. A-0284-15 (App. Div. March 9, 2016).

Pursuant to Judge Lydon's June 11, 2019 order, defendant filed this appeal

and presents the following arguments:

POINT I

AS THE ENTRY INTO MR. DILLIGARD'S HOME WAS UNLAWFUL, THE TRIAL COURT ERRED WHEN IT DENIED HIS MOTION TO SUPPRESS EVIDENCE SEIZED THEREOF AND FURTHER THE TRIAL COURT SHOULD HAVE SUPPRESSED THOSE PORTIONS OF MR. DILLIGARD'S ANSWERS THAT WERE ELICITED DURING THE MIRANDA STATEMENT THAT WERE BASED ON EVIDENCE UNLAWFULLY SEIZED. (PARTLY RAISED BELOW)

POINT II

TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO ARGUE THAT THE INITIAL WARRANTLESS ENTRY INTO MR. DILLIGARD'S HOME WAS UNLAWFUL. (RAISED BELOW)

A-5060-18T4 10 II.

Defendant argues for the first time on appeal that the officer's initial entry

into his home was unlawful. Specifically, defendant asserts the police entered

his home without his consent, arrested him, transferred him to his kitchen , and

then asked him to consent to a search of the remainder of his home.

Because this argument is raised for the first time on appeal, the "plain

error" standard applies and we review the record to determine whether the

alleged error is "clearly capable of producing an unjust result." R. 2:10-2.

We apply a highly deferential standard of review to a trial judge's

determination on a motion to suppress. State v. Gonzales, 227 N.J. 77, 101

(2016). We will uphold "the motion judge's factual findings so long as sufficient

credible evidence in the record supports those findings. Those factual findings

are entitled to deference because the motion judge . . . has the 'opportunity to

hear and see the witnesses and to have the "feel" of the case, which a reviewing

court cannot enjoy.'" Ibid. (citations omitted) (quoting State v. Johnson, 42 N.J.

146, 161 (1964)).

"[U]nder . . . the Fourth Amendment to the United States Constitution and

Article I, Paragraph 7 of our State Constitution, searches and seizures conducted

without warrants issued upon probable cause are presumptively unreasonable

A-5060-18T4 11 and therefore invalid." State v. Elders, 192 N.J. 224, 246 (2007). Searches and

seizures conducted without a warrant, "particularly in a home, are presumptively

unreasonable." State v. Edmonds, 211 N.J. 117, 129 (2012) (quoting State v.

Bolte, 115 N.J. 579, 585 (1989)). Indeed, entry into the home is the "chief evil

against which the wording of the Fourth Amendment is directed." State v.

Lamb, 218 N.J. 300, 314 (2014) (citation and internal quotation marks omitted).

Therefore, "our jurisprudence expresses a clear preference for police officers to

secure a warrant before entering and searching a home." State v. Brown, 216

N.J. 508, 527 (2014). Where a search of a home is challenged, the State has the

burden of proving by a preponderance of the evidence the search is "justified by

one of the 'well-delineated exceptions' to the warrant requirement." State v.

Shaw, 213 N.J. 398, 409 (2012) (quoting State v. Frankel, 179 N.J. 586, 598

(2004)).

Although "an arrest warrant generally furnishes no authority to the police

to intrude on the privacy of a home or to engage in a search therein," State v.

Miller, 342 N.J. Super. 474, 490 (App Div. 2001), "[a]n arrest warrant 'implicitly

carries with it the limited authority to enter a dwelling' where the suspect lives

when there is reason to believe the suspect is inside." State v. Brown, 205 N.J.

133, 145 (2011) (quoting Payton v. New York, 445 U.S. 573, 603 (1980)).

A-5060-18T4 12 Law enforcement does not have an autonomous right to execute an arrest

warrant in a dwelling. In Miller, we held that "in the absence of consent or

exigency, an arrest warrant is not lawfully executed in a dwelling unless the

officers executing the warrant have objectively reasonable bases for believing

that the person named in the warrant both resides in the dwelling and is within

the dwelling at the time." Miller, 342 N.J. Super. at 479.

Defendant's argument regarding inadequate consent into his home lacks

merit because it conflicts with the well-settled principle that police may enter a

home to execute an arrest warrant. The officers went to the apartment to execute

an open arrest warrant, with a reasonable belief defendant lived at the apartment;

upon arrival, the officers knew defendant was located inside because he was

simultaneously texting Valentine information about police at his door. The

judge found that the police arrested defendant in a hallway adjacent to the living

room area of his apartment, after he opened the door for them. The judge made

these findings based on the credibility of the testifying officers and finding

defendant's testimony lacked credibility. We must defer to the trial judge's

credibility and factual findings. We therefore find that the officers exercised

their limited authority by arresting defendant in his home and transferring him

to a table so he could sit down.

A-5060-18T4 13 Having found police lawfully entered defendant's home under their

limited authority to execute an arrest warrant, we find that the judge correctly

limited the evidence seized during the lawful search to that embodied by a

weapons search and that found in light of the plain view exception. We affirm

the September 4, 2014 order under review substantially for the reasons set forth

in Judge Fleming's well-reasoned statement of reasons.

"[A] confession or incriminating statement obtained during a custodial

interrogation may not be admitted in evidence unless a defendant has been

advised of his or her constitutional rights." State v. Hubbard, 222 N.J. 249, 265

(2015). Those rights, however, may be waived so long as the waiver is

"voluntary, knowing and intelligent." State v. Hreha, 217 N.J. 368, 382 (2014).

To determine whether a statement was made voluntarily, a court must

assess the totality of the circumstances surrounding the giving of the statement.

State v. Roach, 146 N.J. 208, 227, cert. denied, 519 U.S. 1021, 117 (1996).

"Relevant factors include the defendant's age, education, intelligence, advice

concerning his [or her] constitutional rights, length of detention, and the nature

of the questioning — specifically, whether the questioning was repeated and

prolonged and whether it involved physical punishment or mental exhaustion."

State v. Bey, 112 N.J. 123, 135 (1988).

A-5060-18T4 14 Defendant argues that police based their questions on information

obtained during the illegal search of his apartment and therefore his statement

should be suppressed. The judge found defendant not credible and pointed to

defendant's strident denial of signing any waiver or consent to search form

despite numerous credible witnesses testifying that he did sign the forms .

Additionally, defendant signed not only a Miranda waiver form at his apartment

but twice more at the police station. Only thereafter did he make a statement to

police. The record supports the judge's conclusion that defendant's statements

were voluntary and not coerced and that his statement should not be suppressed.

Lastly, to the extent that defendant now alleges his trial court counsel was

ineffective for "failing to argue that the initial warrantless entry into

[defendant's] home was unlawful," we note that ineffective assistance of counsel

claims are best suited for PCR proceedings because they often involve matters

for which there is not a complete record of counsel's reasons for the trial strategy

employed in a particular case. State v. Rambo, 401 N.J. Super. 506, 525 (App.

Div. 2008) (citing State v. Preciose, 129 N.J. 451, 460 (1992)). Defendant may

assert his ineffective assistance claim if he chooses to refile his PCR petition

within ninety days of the date of our decision, as permitted by Judge Lydon's

June 11, 2019 order.

A-5060-18T4 15 Affirmed.

A-5060-18T4 16